Punjab-Haryana High Court
Surjit Kaur vs Guranditta Singh on 14 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:036818
RSA-440-1994 (O&M) 2024:PHHC:036818
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
101
RSA-440-1994 (O&M)
Date of decision: 14.03.2024
SURJIT KAUR
..Appellant
Versus
GURANDITTA SINGH (DECEASED) THROUGH LRS.
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Vinod Kumar Kataria, Advocate
for the appellant.
Mr. R.K. Singla, Advocate
for respondent.
ANIL KSHETARPAL, J(Oral)
1. In this regular second appeal, the defendant assails the
correctness of the judgment and decree passed by the First Appellate Court,
which in turn has reversed the judgment and decree passed by the trial
Court.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. Late Sh. Sham Singh was owner of various parcels of land in
village Pipli. On 22.05.1972, he sold 7 kanal and 12 marlas land comprised
in Khasra No.877 to Sh. Lal Chand and others. Sh. Lal Chand and others
subsequently sold the aforesaid parcel of land to Sh. Ram Sarup on
25.02.1986, however, Sh. Sham Singh entered into an agreement to sell in
favour of the plaintiff Sh. Guranditta Singh on 07.02.1986, with respect to
land measuring 7 kanal and 12 marlas comprised in Khasra No.877 on
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receipt of Rs.9,900/- out of total sale consideration of Rs.11,500/-. It was
evident that the parcel of land, which was already sold by Sh. Sham Singh
was again agreed to be sold in favour of the plaintiff. It was also recited that
the possession has been delivered. Late Sh. Sham Singh executed sale deed
in favour of the plaintiff on 28.02.1986, with respect to the land comprised
in Khasra No.877, measuring 7 kanal and 12 marlas on receipt of balance
sale consideration of Rs.1,600/-. The plaintiff on the strength of the aforesaid
sale deed, filed a suit for injunction claiming that he is in possession. The
suit was filed against Sh. Sham Singh and previous purchasers namely Sh.
Lal Chand and Sh. Ram Sarup.
4. The aforesaid suit was dismissed on the ground that the
possession was already delivered to Sh. Lal Chand by Sh. Sham Singh,
which in turn was transferred to Sh. Ram Sarup on execution of sale deed
dated 25.02.1986. It was recited in the sale deed that Sh. Guranditta Singh-
plaintiff can take equivalent parcel of land from village Pipli, which belongs
to Sh. Sham Singh. On 30.11.1988, the plaintiff filed suit for possession of 7
kanal and 12 marlas land comprised in Khasra No.2160, out of land
measuring 19 kanal. The trial Court dismissed the plaintiff's suit on the
ground that the second suit was barred under Order II Rule 2 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), which has been
reversed by the First Appellate Court on reappreciation of evidence.
5. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with the requisitioned record.
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6. The learned counsel representing the appellant submits that the
second suit was barred under Order II Rule 2 of the CPC as the plaintiff (Sh.
Guranditta Singh) could pray for alternative relief in the first suit. He
submits that the second suit would not be maintainable because the cause of
action for claiming alternative relief of possession was available on
06.06.1986, when the plaintiff filed the suit.
7. On the other hand, the learned counsel representing the
respondent submits that the cause of action for seeking possession of
alternative land arose only when the Court held that the plaintiff is not
entitled to retain possession because the parcel of land comprised in Khasra
No.877 had already been sold by Sh. Sham Singh in favour of Sh. Lal
Chand. He submits that Order II Rule 2 of the CPC would not apply in the
present case.
8. This Court has considered the submissions of the learned
counsel representing the parties.
9. In a recent judgment passed by the Supreme Court while
explaining the scope of Order II Rule 2 CPC in V. Kalyanaswamy (Dead)
through Lrs. Vs. L. Bakhthvatsalam (Dead) through Lrs. 2020 SCC
(Online) SC 584, in which it has been held that the mere fact that the relief
claimed in the subsequent suit could have been claimed in the previous suit
is not, in itself, sufficient to invoke the bar under Order II Rule 2 CPC. The
Court, after examining Order II Rule 2 CPC, held that the Court is required
to examine whether the cause of action in the subsequent suit is same or not.
The relevant discussion is in para 67, which is extracted as under:-
"67. Thus, be it the omission or intentional
relinquishment of a claim arising out of a cause of action
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under Order II Rule 2(2) or not seeking a relief under
Order II Rule 2 (3), the fatal consequences they pose, will
arise only if the cause of action is the same. Though we
are not oblivious to the fact that the plaintiffs in O.S. No.
36 of 1963 could have sought a declaration about the
compromise Decree in O.S. No. 71 of 1958, qua all the
properties covered under the Will, we would think that, in
the facts of this case, the cause of Action in O.S. No. 36 of
1963 and the present Suit (O.S. No. 1989 of 1983) are
clearly distinct, having regard to what we have discussed
and having regard to the factum of the date of the death
of R. Krishnammal. It is significant to note that the cause
of action in OS No. 36 of 1963 was the threat of
alienation of the items scheduled therein. We would
perceive O.S. No. 36 of 1963 more as a protective action
by persons who had vested interest in the property under
Section 119 of the Indian Succession Act, 1925
(hereinafter referred to as 'the Indian Succession Act', for
short). We must also not be unmindful of the principle
that cause of action is not to be confused with the relief
which is sought. It has more to do with the basis for the
relief which is sought. We are only reiterating in this
regard, what the Privy Council has laid down, when it
said "it refers to the media upon which the plaintiff asked
the court to arrive at a conclusion in his favour" (See
Mohammad Khalil Khan v. Mahbub Ali Mian)."
10. In fact, the expression used in Order II Rule 2 of the CPC uses
the expression "the same cause of action" which is not synonymous with the
expression "with all the reliefs accruing with regard to the subject matter till
the date of filing of the previous suit".
11. This issue has been examined by this Court in para No.16 and
17 of RSA-1683-2014, titled as "Mohan Singh and others Vs. Smt. Prem
Aggarwal", decided on 13.05.2022, which is extracted as under:-
"16. Order 2 Rule 2(3) of the Code of Civil Procedure,
1908, uses the expression "the same cause of action"
which is not synonymous with the expression "with all the
reliefs accruing with regard to the subject matter till the
date of filing of the previous suit". It is a penal provision
which debars the maintainability of the subsequently filed
suit and is, therefore, required to be constructed strictly.
Each word used in the provision has to be given its
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proper meaning while keeping in view its object/purpose.
If the lawmakers have used the expression "the same
cause of action", it would not be justified to interpret it to
include all the connecting reliefs which the plaintiff is
entitled to seek while filing the previous suit against the
defendants even when the cause of action of the previous
and subsequent suit are different. If that was the intent
behind Order 2 Rule 2, then the expression employed in
the statute would have been different. The expression
employed in the statute is the clubbing of reliefs arising
from same/identical cause of action, which refers to the
bundle of events, facts and occurrences giving rise to a
certain cause of action. Order 2 Rule 2 is based on the
policy that every suit should include the whole claim
arising from one and the same cause of action but does
not provide that the suit shall include all the claims
arising from every cause of action which the plaintiff may
have against the defendant. A Division Bench in Smt.
Bhagwan Kaur Vs. Sh. Harinder Pal Singh, 1991
Punjab Law Journal 681, after discussing the provision
held as under:-
7. The learned counsel also contended that
the suit is barred under Order II Rule 2(2) of
the Code. This contention has also to be
rejected on the ground that such a plea was
never raised. However, since the plea was
argued at some length on the basis of certain
authorities by the learned counsel, we
propose to discuss its merits as well. The
contention is that in the earlier suit filed by
the plaintiff seeking injunction against the
appellant, the relief of specific performance
should also have been claimed, since the
same was available to him. We are not
inclined to accept this contention also. Order
II Rule 2(2) of the Code reads as under:-
"2. Suit to include the whole claim.-
(1) Every suit shall include the whole
of the claim which the plaintiff is
entitled to make in respect of the cause
of action; but a plaintiff may
relinquish any portion of his claim in
order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of
claim.-Where a plaintiff omits to sue in
respect of, or intentionally
relinquishes, any portion of his claim,
he shall not afterwards sue in respect
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of the portion so omitted or
relinquished.
(3) Omission to sue for one of
several reliefs.- Explanation..."It may
be seen from its plain terms that what
this rule provides is that the plaintiff
may be precluded from claiming that
portion of the claim which he
intentionally omits to sue or which he
intentionally relinquishes. It may be
mentioned that the plaint in the earlier
suit had not been filed. However, from
a narration of facts in the judgment of
the learned Single Judge, it appears
that the cause of action in the earlier
suit was the alienation made or
threatened to be made by the
defendant-appellant. May be that
while narrating the facts, the plaintiff
also made a mention of the agreement
to sell but then it is evident that the
cause of action was not founded upon
that agreement. The alienations made
by the defendants necessited the filing
of the suit and formed the cause of
action. The cause of action mentioned
in Order II rule 2(2) of the Code
obviously means the cause of action
for which the suit was brought. In
order that the cause of action in both
the suits may be the same it is
necessary not only that the facts which
would entitle the plaintiff to the right
claimed must be the same, but also
that the infringement of his right at the
hands of the defendant must have
arisen, in substance, out of the same
transaction as held by the Privy
Council in Mohammad Khan V.
Mahbub Ali Mian, A.I.R. 1949 P.C. 78.
a rough test although not a conclusive
one, as to whether the cause of action
in subsequent suit is the same as that
in the former suit is to see whether the
same evidence will sustain both suits.
Regard has to be had to the
allegations in both the suits. It need
not be emphasised that in a suit for
specific performance, it is necessary
for the plaintiff to aver and prove his
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readiness and willingness to perform
his part of the contract which was
apparently not necessary to be pleaded
in the earlier, suit filed by the plaintiff
claiming injunction. We may usefully
refer to a Division Bench decision of
the Lahore High Court in Lachha Mal-
Sardari Mal v. Hirde Nath, A.I.R. 1925
Lah. 459 D.B. There also, the plaintiff
who had an agreement of sale in his
favour filed a suit for injunction
against the defendants. That suit was
held as not maintainable and
dismissed. Subsequent suit for specific
performance of the agreement was
held to be maintainable and Order II
Rule 2 of the Code was ruled as no bar
to the maintainability of the
subsequent suit for specific
performance. This Division Bench
precisely answers the issue against the
appellant and in favour of the
respondent.
17. Thus, if the relief is such which accrued on
the exact cause of action as in the previous case and
could be claimed on the date of the suit, then the bar of
Order 2 Rule 2 shall apply but where cause of action is
different, the bar shall not apply. Identical cause of action
in both suits is the sine qua non for the application of
Order 2 Rule 2. Hence, the issue framed in para No.6 of
the judgment is answered in negative."
12. It is evident that the cause of action arose to the plaintiff only
when his previous suit for injunction was dismissed.
13. Hence, no ground to interfere is made out.
14. Dismissed accordingly.
15. All the pending miscellaneous applications, if any, are also
disposed of.
March 14th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:036818
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