Supreme Court of India
INBASEGARAM AND ANOTHERversusS. NATARAJAN (DEAD) THR. LRS.
- Citation
- 2014 INSC 748
- Decided
- 29 October 2014
- Disposal
- Disposed off
- Bench
- M Y EQBAL
Holding
The second suit for specific performance is not barred by Order 2, Rule 2 CPC because it is based on a distinct cause of action from the earlier injunction suit.
Summary
The plaintiff (Inbasegaran) filed two suits against the defendant (S. Natarajan) – one for a permanent injunction to prevent forcible dispossession of a constructed building, and a later suit for specific performance of a sale agreement. The defendant contended that the second suit was barred by Order 2, Rule 2 of the Code of Civil Procedure because the relief could have been claimed in the earlier suit. The Supreme Court examined the pleadings and held that the causes of action and the evidence supporting the two suits were distinct: the first suit arose from an imminent threat of dispossession, while the second arose from the defendant’s refusal to execute the sale deed after the Housing Board transferred title. Consequently, Order 2, Rule 2 CPC did not apply, and the High Court’s finding that the second suit was barred was set aside. The Court remanded the matter to the High Court to decide the remaining points formulated by it, directing that the status‑quo regarding possession be maintained pending further orders.
Issues considered
- The applicability of Order 2, Rule 2 of the CPC to the second suit for specific performance
- Whether the two suits arise from the same cause of action
- Whether the plaintiff relinquished any part of his claim in the first suit
Legislation cited
- Code of Civil Procedure, 1908s. Order 2 Rule 2
Subjects
Order 2 Rule 2 CPCcause of actionpermanent injunctionspecific performancebar of suitcivil procedureproperty disputesale agreementdistinct reliefs
Judgment
[2014] 10 S.C.R. 1202
A INBASEGARAM AND ANOTHER
0
v.
S. NATARAJAN (DEAD) THR. LRS.
(Civil Appeal Nos. 4215-4216 of 2007 etc.)
OCTOBER 29, 2014
8
[M.Y. EQBAL AND SHIVA KIRTI SINGH, JJ.]
Code of Civil Procedure, 1908:
c 0.2, r.2 - Bar to second suit - Plaintiff filing a suit for
permanent injunction seeking to restrain defendants from
interfering with his possession - Second suit filed by plaintiff
for specific performance of contract for sale in respect of the
same property - The two suits. and the cause of action
D mentioned therein would show that the causes of action and
reliefs sought for are quite distinct and are not same -
Therefore, provisions of 0. 2, r. 2 will not apply.
'Cause of action' - Explained.
E Precedent:
Ratio of a decision - Must be understood in the
background of the facts of that case.
Appeal:
F
First appeal - High Court, being the final court of facts
in a first appeal, is required to decide all the points formulated
by it - Matter remanded to High Court to decide the appeals
by recording its finding on all points formulated by it.
G
Disposing of the appeals, the Court
HELD: 1.1. The first suit was filed by the plaintiff-
appellant for the grant of permanent injunction restraining
H 1202
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1203
LRS.
the defendant, his agents and servants from interfering A
with the possession and enjoyment of the suit property
by the plaintiff either by attempting to trespass into it or
in any other manner whatsoever. Besides other facts, it
was pleaded that in pursuance of the sale agreement the
plaintiff took possession of the suit plot from the s
defendant and began construction. The suit was filed
mainly on the cause of action which arose when the
defendant attempted to forcibly occupy the suit property
by driving away plaintiff's workers and that the defendant
was arranging to forcibly and unlawfully take possession c
of the suit property. [para 16) [1213-C, D, G, HJ
1.2. In the subsequent suit filed by the plaintiff, a
decree for specific performance of the agreement for sale
was claimed on the ground inter alia that the defendant
in the earlier suit took a defence that the sale agreement D
was allegedly given up or dropped by the plaintiff. The
cause of action, as pleaded by the plaintiff in the
subsequent suit, arose when defendant-respondent
disclosed the transfer made by Housing Board in his
favour and finally when the defendant was exhibiting an E
intention of not performing his part of the sale agreement
and in reply to the lawyer's notice the defendant made a
false allegation and denied to execute the sale deed as
per the agreement. [para 17) [1214-B-C]
F
1.3. Thus, a perusal of the pleadings in the two suits
and the causes of action mentioned therein would show
that the causes of action and reliefs sought for are quite
distinct and are not same. [para 18) [1214-D]
Virgo Industries (Eng.) (P) Ltd. vs. Venturetech Solutions G
(P) Ltd. 2012 (7) scR 933 = (2013) 1 sec 625 - held
inapplicable
1.4. It is well settled that the ratio of any decision must
H
1204 SUPREME COURT REPORTS [2014] 10 S.C.R.
A be understood in the background of the facts of that
case. [para 30] [1224-H]
Bharat Petroleum Corpn. Ltd. and Another vs. N. R.
Vairamani and another 2004 (4) Suppl. SCR 923 = (2004)
8 sec 579 - relied on.
B
1.5. Cause of action consists of a bundle of facts
which will be necessary for the plaintiff to prove in order
to get a relief from the Court. When the causes of action
for the two suits are different and distinct and the
C evidences to support the relief in the two suits are also
different then the provisions of 0. 2, r.2 CPC will not
apply. [para 19] [1214-E-F]
Gurbux Singh vs. Bhooralal 1964 SCR 831 =AIR 1964
SC 1810 - followed.
0
Kewal Singh vs. Lajwanti, 1980 (1) SCR 854 = (1980) 1
SCC 290; Deva Ram vs. lshwar Chand, 1995 (4) Suppl. SCR
369 = (1995) 6 SCC 733; Sidramappa vs. Rajashetty & Ors.
1970 (3) SCR 319 =AIR (1970) SC 1059; State of M.P. v.
E State of Maharashtra & Ors. 1977 (2) SCR 555 = (1977) 2
sec 288 - relied on.
Mohd. Khalil Khan & Ors. vs. Mahbub Ali Mian & Ors.
AIR (36) 1949 Privy Council 78 - referred to.
F
2.1. The High Court, being the final court of facts in
a first appeal, is required to decide all the points
formulated by it. In the instant case, the High Court,
although formulated various points for consideration and
decision but has not considered other points in its right
G perspective. In view of the same, the matter needs to be
remanded back to the High Court to consider and decide
other points formulated by it. [para 34] [1226-C-D]
2.2. The decision arrived at by the High Court against
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1205
LRS.
point no.4 holding that the suit was barred under 0. 2, r. 2 A
of the CPC is set aside. The matter is remanded back to
the High Court to decide the appeals by recording its
finding on other points formulated by it.
[para 35] [1126-E]
Lakshmi alias Bhagya/akshmi and another vs. E..
8
Jayaram (dead) by Lr. 2013 (1) SCR 794 = (2013) 9 SCC 311
- cited.
Case Law Reference:
(1964) 7 SCR 831 followed para 13
c
1980 (1) SCR 854 relied on para 13
2013 (1) SCR 794 cited Para 13
2012 (7) SCR 933 held Para 14 D
inapplicable
AIR (36) 1949 Privy referred to Para 20
Council 78
1995 (4) Suppl. SCR 369 relied on para 23 E
1970 (3) SCR 319 relied on para 24
1977 (2) SCR 555 relied on para 25
2004 (4) Suppl. SCR 923 relied on para 31 F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4215-4216 of 2007.
From the Judgment & Order dated 30.04.2004 of the High
Court of Judicature at Madras in AS. Nos. 666 of 2001. .G
WITH
C.A. Nos. 4217-4218 & 4219 of 2007.
K. Parasaran, R. Balasubramanian, Ambhoj Kumar Singh, H
1206 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Ashwarya Singh, Senthil Jagadeesan, Shruti Iyer Kanchana for
the appearing parties.
The Judgment of the Court was delivered by
M.Y. EQBAL, J. 1. These appeals are directed against
B the common judgment and order dated 30.4.2004 passed by
the High Court of Judicature at Madras in A.S. Nos.665 and
666 of 2001, whereby the appeals preferred by S. Natarajan
were allowed. This matter pertains to a property bearing
S.No.159/10 and 11, Plot No.436, Tallakulam Village, Madurai
C City, measuring 6980 sq.ft., which was allotted to one S.
Natarajan on lease-cum-sale agreement by the Housing Board.
S. Natarajan, original defendant in O.S. Nos.445/85 & 252/86
and plaintiff in O.S. No.3/86 alleged to have entered into a sale
agreement with respect to the suit property with one
o lnbasegaran. Therefore, for the sake of convenience S.
Natarajan and lnbasegaran are hereinafter respectively referred
to as 'defendant' and 'plaintiff.
2. The facts giving rise to the present appeals are that the
E plaintiff filed a suit being O.S. No.252 of 1986 for specific
performance of the agreement for sale dated 19.1.1984 with
respect to aforesaid suit schedule property. According to him,
the said land was allotted to the defendant on lease-cum-sale
agreement on 4.7.1975 by the Tamil Nadu Housing Board (in
short, 'Housing Board'). Since the defendant had not
F constructed building on the said site for the purpose of getting
sale deed as contemplated under the lease-cum-sale
agreement, the Board did not execute the sale deed in favour
of the defendant. Hence, he entered into a sale agreement on
19.1.1984 with the plaintiff. In the said agreement, he agreed
G to sell the suit house site to the plaintiff for a total consideration
of Rs.3,84,220/- and received a sum of Rs.1,00,000/- as
advance in cash towards part of the sale consideration. It is
alleged that the defendant agreed that after a sale deed
executed in his favour from the Housing Board he will execute
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1207
LRS. [M.Y. EQBAL, J.]
and register the sale deed in favour of the plaintiff or his family A
members after receiving the balance sale consideration. Time
for performance of the agreement was tentatively fixed as four
months and the same was extended until the defendant got the
sale deed executed from the Housing Board. The parties
agreed that the plaintiff shall prepare a plan for construction of B
a building in the said property and the defendant will sign the
building plan and get the plan approved and the plaintiff
thereafter shall construct the building in the suit housing plot at
his own expenses.
,3. Pursuant to the sale agreement, the plaintiff took C
possession of the suit property and completed the construction.
According to the plaintiff, the defendant had been representing
to the plaintiff that he has not yet got the sale deed executed in
his favour from the Housing Board but attempted to forcibly take
possession of the building constructed on the suit property by D
the plaintiff. So the plaintiff filed a suit being O.S. No.445/1985
on 11.9.1985 for permanent injunction restraining the defendant
herein from taking forcible possession of the building
constructed in the suit property. Pending the aforesaid suit, few
days after, the plaintiff on 25.4.1986 filed aforesaid suit for E
specific performance being O.S. No.252 of 1986.
4. The defendant pleaded in his written statement that the
agreement dated 19.1.1984 is not a valid document and the
plaintiff cannot maintain the suit as he had relinquished his right. F
It is also stated that the agreement was executed when the
defendant was not the owner of the site and any sale by the
defendant was prohibited as per the terms and conditions of
the lease-cum-sale agreement entered into with the Housing
Board and so the agreement in question is void, inoperative G
and opposed to law. The defendant also denied the payment
of Rs.1,00,000/- in cash as advance as alleged by the plaintiff.
Even with respect to the averment in the plaint that the plaintiff
was permitted to put up construction in the suit site, the same
is denied. The defendant also denied that the plaintiff put up
H
1208 SUPREME COURT REPORTS [2014] 10 S.C.R.
A construction at his own cost. The defendant further denied that
the plaintiff was given possession of the suit property and
claimed that he never handed over possession of the property
to the plaintiff at any point of time. It is alleged that the plaintiff
is not entitled to a decree for specific performance because
s the agreement dated 19.1.1984 no longer subsists. It is further
alleged that the subsequent suit being O.S. No.252/1986 for
specific performance is barred under Order 2, Rule 2 of t~e
Code of Civil Procedure because the plaintiff who instituted the
earlier suit O.S. No.445/1985, should have included the relief
c for specific performance and, in any event, could not have filed
O.S. No.252/1986 without any leave of the Court.
'
5. The defendant also filed a suit being O.S. No.3/1986
seeking a decree for injunction restraining the purchaser
(defendants therein) from interfering with his possession and
D enjoyment of the suit property. The trial court tried all the three
suits together and dismissed the suits filed by the plaintiff and
defendant for injunction in O.S. Nos.445/1985 and 3/1986 and
decreed the suit in O.S. No.252/1986 preferred by the plaintiff
for specific performance with the direction to the defendant to
E execute and register the sale document in favour of the plaintiff.
6. Aggrieved by the judgment and decree of the trial court,
the defendant S. Natarajan preferred appeals before the High
Court being A.S. Nos.665 and 666 of 2001.
F 7. High Court held that the causes of action in both the
suits filed by the appellant are identical, arose from the same
transaction and that is why the trial court also had a common
trial and decided the case by a common judgment. The plaintiff
has not come forward with the suit in O.S. 252/1986 on the
G basis of the fact that the sale deed with respect to the suit
property was obtained only on 18.2.1985 by the defendant from
the Housing Board and the defendant failed to execute the sale
deed in favour of the plaintiff pursuant to Ex.A 1 agreement and
so the prayer sought for in the said suit could have been sought
H
IN8ASEGARAN v. S. NATARAJAN (DEAD) THR. 1209
LRS. [M.Y. EQ8AL, J.]
for even in the Original Suit No.445/1985 as the pleading set A
out in the plaint in O.S. 252/1986 was available even on the
date when O.S. No.445/1985 was filed. Since the plaintiff
omitted to seek such a relief and did not obtain the leave of
the Court to file the subsequent suit, it amounts to
relinquishment of his rights which is sought for in O.S. 252/1986 8
and he cannot sustain the subsequent suit in O.S. 252/1986
for the relief sought for in that suit in view of Order 2, Rule 2 of
the Code.
8. The High Court formulated as many as following six
points for consideration to decide the appeals: C
(1) Whether Ex.A 1 is enforceable in law?
(2) Whether the suit in O.S. No.252/1986 is maintainable
on the basis of Ex.A 1 in view of variations made in Exs. 87 D
and 89? ·
(3) Whether the respondent/plaintiff was ready and willing
to perform his part of the contact?
(4) Whether the suit in O.S. 252/1986 is maintainable in E
view of Order 2, Rule 2 of the Code of Civil Procedure?
(5) Whether the relief for the specific performance of the
agreement suit in O.S. 252/1986 can be rejected on the
ground that the respondent/plaintiff has not come to court F
with clean hands?
9. However, instead of deciding all the points, the High
Court took up only Point no.4 and 5 and decided the appeal in
following three paragraphs:
G
"13. Further, in the present case, the parties and the court
felt that in view of common issue, the said suit was to be
dealt with and so the trial court in a common judgment
dated 28.7.2000 disposed of the same. The trial court
though framed the issue, simply rejected that i,t is not H
1210 SUPREME COURT REPORTS [2014) 10 S.C.R.
A barred by Order 2, Rule 2 of the Code on assumption that
there is a change of cause of action. So the said findings
of the trial court cannot be sustained in law. So we can
safely conclude that the suit in O.S. No. 252/1986 is barred
under Order 2, Rule 2 of the Code and so it has to be
B rejected.
14. Even with respect to Point No.5, it has to be held that
the respondent/plaintiff has come to court by filing O.S.
252/1986 with unclean hands. Though in the plaint filed in
O.S. No.3/1986 which was filed on 5.9.1985, it is
c specifically stated that conditional sale deed dated
18.2.1985 was executed in favour of the appellant/
defendant by the Tamil Nadu Housing Board. In O.S.
No.252/1986 which was filed on 5.4.1986, the respondent/
plaintiff has come forward with the false plea that the
D appellant/defendant had been representing to the plaintiff
that he had not yet got the sale deed executed in his favour
by the Tamil Nadu Housing Board, which is contrary to the
averment made in the earlier suit. Learned counsel for the
respondent/plaintiff also tried to submit that the respondent
has no knowledge about the said document so as to
enable him to file the suit for specific performance of the
Agreement on that basis. The said plea is nothing but false
in view of the specific averment made in the plaint in O.S.
No.3/1986. The said plea that the sale deed is yet to be
F got by the appellant/defendant from the Tamil Nadu
Housing Board is a material fact to enforce the right and
got the sale deed by the respondent/plaintiff arose only
after getting the sale deed by the appellant/defendant from
the Tamil Nadu Housing Board as contemplated under
G Ex.A 1. The respondent/plaintiff suppressed the said
material fact. Hence, even on that ground the suit in O.S.
252/1986 has to be rejected holding that the respondent/
plaintiff is not entitled to equitable relief of specific
performance of the Agreement in view of the above said
fact.
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1211
LRS. [M.Y. EQBAL, J.] .
15. In view of the findings given above with respect to point A
Nos.4 and 5, we are; not inclined to deal with the other
points.·
10. By impugned order dated 30.4.2004, the High Court
allowed the appeals preferred by the defendant based on B
Order 2 Rule 2 with a direction to the defendant to pay the cost
of construction (Rs.8,00,000/-) to the plaintiff and on such
deposit, the plaintiff would hand over the suit property with
building to the defendant and after handing over the same, he
can withdraw the aforesaid amount along with the money
already deposited, if any. Hence, present cross appeals by both C
sides. The High Court further held that no other points need to
considered and decided.
11. Mr. K. Parasaran, learned senior counsel appearing
for the appellants-plaintiff, assailed the impugned judgment D
passed by the High Court as being erroneous in law as also in
facts. Learned counsel firstly drew our attention to the
agreement to sell dated 19.1.1984 and submitted that the
defendant-respondent put a condition in the said agreement that
the sale deed shall be executed by the defendant in favour of E
the plaintiff only after getting transfer of the lease hold plot in
his favour by the Housing Board. However, pending transfer of
the property by the Housing Board in favour of the defendant-
respondent, the rowdy elements of the defendant threatened the
appellant-plaintiff to dispossess him from the building F
constructed by the plaintiff. In order to restrain and prevent the
defendant, the appellant filed a suit for injunction being O.S.
No.445 of 1985 seeking the prohibitory order restraining the
respondent from dispossession of the plaintiff.
12. Simultaneously, before the trial court, the defendant- G
respondent also filed a suit being O.S. No.3/1986 (13/1985)
making similar prayer for injunction against the appellant. In the
written statement of the said suit, for the first time the defendant
of the suit (appellant herein) disclosed in paragraph 4 that the
sale deed was executed by the Housing .Board in his favour H
1212 SUPREME COURT REPORTS [2014] 10 S.C.R.
A and now the plaintiff of the suit (respondent herein) is the
absolute owner of the property. Having come to know about
the transfer of the property by the Housing Board in favour of
the plaintiff, legal notices were given by the appellant to the
respondent and a regular suit for specific performance was
B filed.
13. Mr. Parasaran submitted that from bare reading of the
plaints in two suits, it would be apparently clear that cause of
action of each of the two suits by the plaintiff was quite different
and distinct and the same would not attract the provisions of
c Order 2, Rule 2 CPC. Mr. Parasaran further submitted that the
trial court had categorically held that the provisions of Order 2,
Rule 2 shall have no application in the facts and circumstances
of the case. Mr. Parasaran then drew our attention to the
agreement dated 19.1.1984 and the codicil sale agreement
D dated 31.4.1984 to show that the period of sale agreement
between the plaintiff-appellant and the defendant-respondent
was further extended in anticipation of the transfer of the
property by the Housing Board in favour of the defendant.
Lastly, it was contended that the provision of Order 2 Rule 2,
E CPC does not apply where the two suits are filed on different
cause of action and the counsel relied upon the decision of this
Court in the cases of Gurbux Singh vs. Bhooralal, (1964) 7
SCR 831; Kewal Singh vs. Lajwanti, (1980) 1 SCC 290 and
in the case of Lakshmi alias Bhagya/akshmi and another vs.
F E. Jayaram (dead) by Lr., (2013) 9 SCC 311.
14. Mr. R. Balasubramanian, learned senior counsel
appearing for the respondent-defendant, firstly submitted that
if the allegations made in the plaint filed by the plaintiff-appellant
are read together it would be clear that the plaintiff had
G knowledge about the sale deed executed by the Housing Board
in favour of the defendant. It was only because of that the
plaintiff in the plaint categorically stated that he reserves his
right to file a suit for specific performance. According to the
learned counsel, the causes of action in both the suits filed by
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1213
LRS. [M.Y. EQBAL, J.]
the plaintiff are identical, and therefore, the subsequent suit for A
specific performance is not maintainable being barred under
Order 2 Rule 2 CPC. Learned counsel put heavy reliance on
the decision of this Court in the case of Virgo Industries (Eng.)
(P) Ltd. vs. Venturetech Solµtions (P) Ltd., (2013) 1 SCC 625.
15. We have heard learned counsel appearing for the B
parties, perused the pleading and findings recorded by the trial
court as also by the first Appellate Court.
16. Admittedly, the first suit being O.S. No.445of1985 was
filed by the plaintiff-appellant for the grant of permanent C
injunction restraining the defendant, his agents and servants
from interfering with the possession and enjoyment of the suit
property by the plaintiffs either by attempting to trespass into it
or in any other manner whatsoever. Besides other facts, it was
pleaded that in pursuance of the sale agreement the plaintiff
took possession of the suit plot from the defendant and began D
construction of Kalyana Mahal. It was alleged by the plaintiff
that the defendant with an ulterior malafide motive and intention
of extracting more money was representing to the plaintiffs that
he would execute the sale deed after getting the sale deed from
the Housing Board and after completion of the construction of E
the building. With that ulterior motive, the defendant tried to
forcibly take possession of the building constructed by the
plaintiffs and threatened the plaintiffs' worker to remove them
from the building. The plaintiffs then gave complaint to the police
and in response, the police immediately rushed to the suit F
property and warned the rowdies not to enter into the building.
The plaintiffs, therefore, pleaded that the defendant was again
arranging to gather unruly elements and to forcibly and
unlawfully take possession of the suit property from the plaintiffs.
With that apprehension, the suit was filed mainly on the cause G
of action which arose when the defendant attempted to forcibly
occupy the suit property by driving away plaintiffs' workers and
that the defendant was arranging to forcibly and unlawfully take
possession of the suit property. The defendant, in his written
statement, denied each and every allegation and stated that H
1214 SUPREME COURT REPORTS [2014] 10 S.C.R.
A building was constructed by him and in fact the plaintiffs
attempted to forcibly take possession of the building.
17. In the subsequent suit filed by the plaintiff being O.S.
No.252 of 1986, a decree for specific performance of the
agreement was claimed on the ground inter alia that the
B defendant in the earlier suit took a d~fence that the sale
agreement was allegedly given up or dropped by the plaintiff.
The cause of action, as pleaded by the plaintiff in the
subsequent suit, arose when defendant-respondent disclosed
the transfer made by Housing Board in his favour and finally
C when the defendant was exhibiting an intention of not performing
his part of the sale agreement and in reply to the lawyer's notice
the defendant made a false allegation and denied to execute
the sale deed as per the agreement.
18. A perusal of the pleadings in the two suits and the
D cause of action mentioned therein would show that the cause
of action and reliefs sought for are quite distinct and are not
same.
19. Indisputably, cause of action consists of a bundle of
E facts which will be necessary for the plaintiff to prove in order
to get a relief from the Court. However, because the causes of
action for the two suits are different and distinct and the
evidences to support the relief in the two suits are also different
then the provisions of Order 2 Rule 2 CPC will not apply.
F 20. The provision has been well discussed by the Privy
Council in the case of Mohd. Khalil Khan & Ors. vs ..Mahbub
Ali Mian & Ors., AIR (36) 1949 Privy Council 78, held as under:-
"61 The principles laid down in the cases thus far
discussed may be thus summarised:-
G
(1) The correct test in cases falling under Order 2, Rule 2,
is "whether the claim in the new suit is in fact founded upon
a cause of action distinct from that which was the
foundation for the former suit." Moonshee Buzloor Ruheem
H v. Shurrrsunnissa Begum (1867-11) M.l.A. 551.
; IMElASEGARAN v. S. NATARAJAN (DEAD) THR. 1215
LRS. [M.Y. EQBAL, J.]
(2) The cause of action means every fact which will be A
necessary for the plaintiff to prove if traversed in order to
support his right to the judgment. Read v. Brown (1-889-
22) Q.B.P. 128.. '
(3) If the evidence to support the two claims is different, B
then the causes of action are also different. Brunsden v.
Humphrey (1884-14) Q.B.D. 141 .
(4) The causes of action in the two suits may be
considered to be the same if in substance they are
identical. Brunsden v. Humphrey (1884-14) Q.B.D. 141. c
(5) The cause of action has no relation whatever to the
defence that may be set up by the defendant nor does it
depend upon the character of the relief prayed for by the
plaintiff. It refers ... to the media upon which the plaintiff asks
the Court to arrive at a conclusion in his favour. Muss. D
Chand kour v. Partab Singh (15 I.A. 156 : Cal.98 P.C.).
This observation was made by Lort Watson in a case under
Section 43 of the Act of 1882 (corresponding to Order 2,
Rule 2), where plaintiff made various claims in the same
suit." E
21. The Constitution Bench of this Court, considering the
scope and applicability of Order 2 Rule 2 of the CPC, in the
case of Gurbux Singh vs. Bhooralal, (supra) AIR 1964 SC
1810, held as under:
F
"6. In order that a plea of a Bar under Order 2 Rule 2(3)
of the Civil Procedure Code should succeed the
defendant who raises the plea must make out; (i) that the
second suit was in respect of the same cause of action
as that on which the previous suit was based; (2) that in G
respect of that cause of action the plaintiff was entitled to
more than one relief; (3) that being thus entitled to more
than one relief the plaintiff, without leave obtained from the
Court omitted to sue for the relief for which the second suit
had been filed. From this analysis it would be seen that H
1216 SUPREME COURT REPORTS [2014] 10 S.C.R.
A the defendant would have to establish primarily and to start
with, the precise cause of action upon which the previous
suit was filed, for unless there is identity between the cause
of action on which the earlier suit was filed and that on
which the claim in the latter suit is based there would be
B no scope for the application of the bar. No doubt, a relief
which is sought in a plaint could ordinarily be traceable to
a particular cause of action but this might, by no means,
be the universal rule. As the plea is a technical bar it has
to be established satisfactorily and cannot be presumed
c merely on basis of inferential reasoning. It is for this reason
that we consider that a plea of a bar under Order 2 Rule 2
of the Civil Procedure Code can be established only if the
9efendant files in evidence the pleadings in the previous
suit and thereby proves to the Court the identity of the
cause of action in the two suits. It is common ground that
D
the pleadings in CS 28 of 1950 were not filed by the
appellant in the present suit as evidence in support of his
plea under Order 2 Rule 2 of the Civil Procedure Code.
The learned trial Judge, however, without these pleadings
being on the record inferred what the cause of action
E
should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the
stage of the appeal the learned District Judge noticed this
lacuna in the appellant's case and pointed out, in our
' opinion, rightly that without the plaint in the previous suit
F being on the record, a plea of a bar under Order 2 Rule 2
of the Civil Procedure Code was not maintainable.
xxxxx
It was his submission that from this passage we should
G infer that the parties had, by agreement, consented to
make the pleadings in the earlier suit part of the record in
the present suit. We are unable to agree with this
interpretation of these observations. The statement of the
learned Judge. "The two courts have, however, fre~ly cited
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1217
LRS. [M.Y. EQBAL, J.]
from the record of the earlier suit" is obviously inaccurate A
as the learned District Judge specifically pointed out that
the pleadings in the earlier suit were not part of the record
and on that very ground had rejected the plea of the bar
under Order 2 Rule 2 of the Civil Procedure Code. Nor can
we find any basis for the suggestion that the learned Judge B
had admitted these documents at the second appeal stage
under Order 41 Rule 27 of the Civil Procedure Code by
consent of parties. There is nothing on the record to
suggest such an agreement or such an order, assuming
that additional evidence could legitimately be admitted in C
a second appeal under Order 41 Rule 27 of the Civil
Procedure Code. We can therefore proceed only on the
basis that the pleadings in the earlier suit were not part of
the record in the present suit."
22. In the case of of Kewal Singh vs. Lajwanti (supra), while D
considering the applicability of Order 2 Rule 2 CPC, this Court
observed that:-
"5. So far as the first two contentions are concerned, we
are of the opinion that they do not merit any serious
c:onsideration. Regarding the question of the applicability E
of Order 2 Rule 2 CPC the argument of the learned
Counsel for the appellant is based on serious
misconception of law. Order 2 Rule 2 CPC runs thus:
"2(1) Every suit shall include the whole of the claim F
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) Where a plaintiff omits to sue in respect of, or G
intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the portion
so omitted or relinquished."
A perusal of Order 2 Rule 2 would clearly reveal that this H
1218 SUPREME COURT REPORTS [2014) 10 S.C.R.
A provision applies to cases where a plaintiff omits to sue a
portion of the cause of action on which the suit is based
either by relinquishing the cause of action or by omitting a
part of it. The provision has, therefore, no application to
cases where the plaintiff bases his suit on separate and
B distinct causes of action and chooses to relinquish one or
the other of them. In such cases, it is always open to the
plaintiff to file a fresh suit on the basis of a distinct cause
of action which he may have relinquished.
6. In the case of Mohammad Khalil Khan v. Mahbub Ali
c Mian, AIR 1949 PC 78, the Privy Council observed as
follows:
'That the right and its infringement, and not the ground or
origin of the right and its infringement, constitute the cause
of action, but the cause of action for the Oudh suit (8 of
D
1928) so far as the Mahbub brothers are concerned was
only a denial of title by them as that suit was mainly against
Abadi Begam for possession of the Oudh property; whilst
in the present suit the cause of action was wrongful
possession by the Mahbub brothers of the Shahjahanpur
E property, and that the two causes of action were thus
different.
7. Applying the aforesaid principles laid down by the Privy
Council we find that none of the conditions mentioned by
F the Privy Council are applicable in this case. The plaintiff
had first based her suit on three distinct causes of action
but later confined the suit only to the first cause of action,
namely, the one mentioned in Section 14-A(1) of the Act
and gave up the cause of action relating to Section 14(1)(e)
and (f). Subsequently, by virtue of an amendment she
G
relinquished the first cause of action arising out of Section
14-A(1) and sought to revive her cause of action based
on Section 14(1)(e). At the time when the plaintiff
relinquished the cause of action arising out of Section
14(1)(e) the defendant was not in the picture at all.
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1219
LRS. [M.Y. EQBAL, J.]
Therefore, it was not open to the defendant to raise any A
objection to the amendment sought by the plaintiff. For
these reasons, we are satisfied that the second
amendment application was not barred by the principles
of Order 2 Rule 2 CPC and the contention of the learned
counsel for the appellant must fail." B
23. In the case of Deva Ram vs. lshwar Chand, (1995) 6
sec 733, this Court, considering its various earlier decisions,
observed as under:-
"14. What the rule, therefore, requires is the unity of all C
claims based on the same cause of action in one suit. It
does not contemplate unity of distinct and separate causes
of action. If, therefore, the subsequent suit is based on a
different cause of action, the rule will not operate as a bar.
(See Arjun Lal Gupta v. Mriganka Mohan Sur, (1974) 2
SCC 586; State of M.P. v. State of Maharashtra, (1977) D
2 SCC 288; Kewal Singh v. B. Lajwanti, (1980) 1 SCC
290).
15. In Sidramappa v. Rajashetty, (1970) 1 SCC 186, it
was laid down that if the cause of action on the basis of E
which the previous suit was brought, does not form the
foundation of the subsequent suit and in the earlier suit the
plaintiff could not have claimed the relief which he sought
in the subsequent suit, the latter namely, the subsequent
suit, will not be barred by the rule contained in Order 2 F
Rule 2, CPC."
24. In the case of Sidramappa vs. Rajashetty & Ors., AIR
(1970) SC 1059, this Court held:
"7. The High Court and the trial court proceeded on the
erroneous basis that the former suit was a suit for a G
declaration of the plaintiffs title to the lands mentioned in
Schedule I of the plaint. The requirement of Order II Rule
2, Code of Civil Procedure is that every suit should include
the whole of the claim which the plaintiff is entitled to make
H
1220 SUPREME COURT REPORTS [2014] 10 S.C.R.
A in respect of a cause of action. "Cause of action" means
the "cause of action for which the suit was brought". It
cannot be said that the cause of action on which the
present suit was brought is the same as that in the
previous suit. Cause of action is a cause of action which
B gives occasion for and forms the foundation of the suit: If
that cause of action enables a person to ask for a larger
and wider relief than that to which he limits his claim, he
·· cannot afterwards seek to recover the balance by
independent proceedings. - see Mohd. Hqfiz v. Mohd.
c Zakaria AIR(1922) PC 23."
8. As seen earlier the cause of action on the basis of which
the previous suit was brought does not form the foundation
of the present suit. The cause of action mentioned in the
earlier suit, assuming the same afforded a basis for a valid
D claim, did not enable the plaintiff to ask for any relief other
than those he prayed for in that suit. In that suit he could
not have claimed the relief which he seeks in this suit.
Hence the trial court and the High Court were not right in
holding that the plaintiffs suit is barred by Order II, Rule 2,
E Code of Civil Procedure."
25. In the case State of M.P. v. State of Maharashtra &
Ors., (1977) 2 SCC 288, at page 295 this Court observed as
under: -
F "24. This Court in State of Bihar v. Abdul Majid, AIR 1954)
SC 245, stated that a government servant could ask for
arrears of salary. Counsel for Madhya Pradesh said that
the decision of this Court in Abdul Majid case declared
what the existing law has been, and, therefore, the plaintiff
could not contend that it was not open to him to ask for
G
arrears of salary in the 1949 suit. It is in that background
that Madhya Pradesh contends that the plaintiff not having
asked for relief under Order 2 Rule 2 of the Code of Civil
Procedure would not be entitled to claim salary in the 1956
suit.
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1221
LRS. [M.Y. EQBAL, J.]
25. The contention of Madhya Pradesh cannot be A
accepted. The plaintiff will be barred under Order 2 Rule
2 of the Code of Civil Procedure only when he omits to
sue for or relinquishes the claim in a suit with knowledge
that he has a right to sue for that relief. It will not be correct
to say that while the decision of the Judicial Committee in B
Lall easel was holding the field the plaintiff could be said
to know that he was yet entitled to make a claim for
arrears of salary. On the contrary, it will be correct to say
that he knew that he was not entitled to make such a claim.
If at the date of the former suit the plaintiff is not aware of c
the right on which he insists in the latter suit the plaintiff
cannot be said to be disentitled to the relief in the latter
suit. The reason is that at the date of the former suit the
plaintiff is not aware of the right on which he insists in the
subsequent suit. A right which a litigant does not know that D
he possesses or a right which is not in existence at the
time of the first suit can hardly be regarded as a "portion
of his claim" within the meaning of Order 2 Rule 2 of the
Code of Civil Procedure. See Amant Bibi v. lmdad
Husain, (1885) 15 Ind App 106 at pg.112 (PC). The crux
of the matter is presence or lack of awareness of the right E
at the time of first suit.
27. The appellant Madhya Pradesh is, therefore, not right
in contending that the plaintiff is barred by provisions
contained in Order 2 Rule 2 of the Code of Civil Procedure F
from asking for arrears of salary in the 1956 suit. The
plaintiff could not have asked for arrears of salary under
the law as it then stood. The plaintiff did not know of or
possess any such right. The plaintiff, therefore, cannot be
said to have omitted to sue for any right."
G
26. In the light of the principles discussed and the law laid
down by the Constitution Bench as also other decisions of this
Court, we are of the firm view that if the two suits and the relief
claimed therein are based on the same cause of action then
only the subsequent suit will become barred under Order 2, Rule H
1222 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 2 of the CPC. However, when the precise cause of action upon
which the previous suit for injunction was filed because of
imminent threat from the side of the defendant of dispossession
from the suit property then the subsequent suit for specific
performance on the strength and on the basis of the sale
B agreement cannot be held to be the same cause of action. In
the instant case, from the pleading of both the parties in the
suits, particularly the cause of action as alleged by the plaintiff
in the first suit for permanent injunction and the cause of action
alleged in the suit for specific performance, it is clear that they
c are not the same and identical.
27. Besides the above, on reading of the plaint of the suit
for injunction filed by the plaintiff, there is nothing to show that
the plaintiff intentionally relinquished any portion of his claim for
the reason that the suit was for only injunction because of the
D threat from the side of the defendant to dispossess him from
the suit property. It was only after the defendant in his suit for
injunction disclosed the transfer of the suit property by the
Housing Board to the defendant and thereafter denial by the
defendant in response to the legal notice by the plaintiff, the
E cause of action arose for filing the suit for specific performance.
29. Mr. R. Balasubramanran, learned senior counsel
appearing for the respondents put reliance on the decision of
this Court in the case of Virgo Industries (Eng.) Private Limited
(supra). After going through the decision given in the said case,
F we are of the view that the facts of that case were different from
the facts of the instant case. In the case of Virgo Industries .,:.._
(supra) two sale agreements were executed by the defendant
in favour of the plaintiff in respect of the two plots. In the suit
filed by the plaintiff for injunction it was pleaded that the
G defendant is attempting to frustrate the agreement on the
pretext that restriction to transfer of land may be issued by the
Excise Department on account of pending revenue demand.
Further, the defendant was trying to frustrate the agreement by
alienating and transferring the suit property to third parties. On
H these facts, the Court observed :-
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1223
LRS. [M.Y. EQBAL, J.]
"5. While the matter was so situated the defendant in both A
the suits i.e. the present petitioner, moved the Madras High
Court by filing two separate applications under Article 227
of the Constitution to strike off the plaints in OSs Nos. 202
and 203 of 2007 on the ground that the provisions
contained in Order 2 Rule 2 of the Civil Procedure Code, 8
1908 (for short "CPC") is a bar to the maintainability of
both the suits. Before the High Court the defendant had
contended that the cause of action for both sets of suits
was the same, namely, the refusal or reluctance of the
defendant to execute the sale deeds in terms of the
agreements dated 27-7-2005. Therefore, at the time of
c
filing of the first set of suits i.e. CSs Nos. 831 and 833 of
2005, it was open for the plaintiff to claim the relief of
specific performance. The plaintiff did not seek the said
relief nor was leave granted by the Madras High Court. In
such circumstances, according to the defendant-petitioner, D
the suits filed by the plaintiff for specific performance i.e.
OSs Nos. 202 and 203 were barred under the provisions .\·
of Order 2 Rule 2(3) CPC.
xxxxxxxx E
13. A reading of the plaints filed in CSs Nos. 831 and 833
of 2005 show clear averments to the effect that after
. execution of the agreements of sale dated 27-7-2005 the
plaintiff received a letter dated 1-8-2005 from the
defendant conveying the information that the Central F
Excise Department was contemplating issuance of a
notice restraining alienation of the property. The advance
amounts paid by the plaintiff to the defendant by cheques
were also returned. According to the plaintiff it was
surprised by the aforesaid stand of the defendant who had G
earlier represented that it had clear and marketable title
to the property. In Para 5 of the plaint, it is stated that the
encumbrance certificate dated 22-8-2005 made available
to the plaintiff did not inspire confidence of the plaintiff as
the same contained an entry dated 1-10-2004. The plaintiff, H
1224 SUPREME COURT REPORTS [2014] 10 S.C.R.
A therefore, seriously doubted the claim made by the
defendant regarding the proceedings initiated by the
Central Excise Department. In the aforesaid paragraph of
the plaint it was averred by the plaintiff that the defendant
is "finding an excuse to cancel the sale agreement and
B sell the property to some other third party". In the
aforesaid paragraph of the plaint, it was further stated that
"in this background, the plaintiff submits that the
defendant is attempting to frustrate the agreement
entered into between the parties".
c 14. The averments made by the plaintiff in CSs Nos. 831
and 833 of 2005, particularly the pleadings extracted
above, leave no room for doubt that on the dates when
CSs Nos. 831 and 833 of 2005 were instituted, namely,
28-8-2005 and 9-9-2005, the plaintiff itself had claimed that
D facts and events have occurred which entitled it to contend
that the defendant had no intention to honour the
agreements dated 27·7-2005. In the aforesaid situation it
was open for the plaintiff to incorporate the relief of specific
performance along with the relief of permanent injunction
E that formed the subject-matter of the above two suits. The
foundation for the relief of permanent injunction claimed in
the two suits furnished a complete cause of action to the
plaintiff in CS& Nos. 831 and 833 to also sue for the relief
of specific performance. Yet, the said relief was omitted
and no leave in this regard was obtained or granted by the
F
Court."
29. In the instant case, as discussed above, suit for
injunction was filed since there was threat given from the side
of the defendant to dispossess him from the suit property. The
G plaintiff did not allege that the defendant is threatening to
alienate or transfer the property to a third party in order to
frustrate the agreement.
30. It is well settled that the ratio of any decision must be
understood in the background of the facts of that case. The
H
INBASEGARAN v. S. NATARAJAN (DEAD) THR. 1225 ·
LRS. [M.Y. EQBAL, J.]
following words of Lord Denning in the matter of applying A
precedence have been locus classicus.
"Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the
entire aspect, in deciding such cases, one should avoid B
the temptation to decide cases (as said by Cardozo) by
matching the colour of one case against the colour of
another. To decide therefore, on which side of the line a
case falls, the broad resemblance to another case is not
at all decisive." C
31. In the case of Bharat Petroleum Corpn. Ltd. and
Another vs. N.R. Vairamani and another, (2004) 8 SCC 579
at page 584, this eow:1. observed :-
"9. Courts should not place reliance on decisions o
without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is
placed. Observations of courts are neither to be read as
Euclid's theorems nor as provisions of a statute and that
too taken out of their context. These observations must be E
read in the context in which they appear to have been
stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark into
lengthy discussions but the discussion is meant to explain F
and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their
words are not to be interpreted as statutes. In London
Graving Dock Co. Ltd. v. Horton 1951 AC 737-(AC at p.
761) Lord MacDermott observed: (All ER p. 14 C-D)
G
'The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part
of an Act of Parliament and applying the rules of
interpretation appropriate thereto. This is not to detract
from the great weight to be given to the language actually H
1226 SUPREME COURT REPORTS [2014] 10 S.C.R.
A used by that most distinguished judge, ... "
32. Having regard to the facts and evidence of the instant
case, we are of the view that the issue decided in Virgo
Industries (supra) is not applicable in this case.
8 33. Further, taking into consideration all these facts, we are
of the considered opinion that the conclusion arrived at by the
High Court that the suit is barred under Order 2 Rule 2 CPC
cannot be sustained in law.
34. As noticed above, the High Court, although formulated
C various points for consideration and decision, as quoted
hereinabove, but has not considered other points in its right
perspective. The High Court, being the final court of facts in a
first appeal, is required to decide all the points formulated by
it. In view of the same, the matter needs to be remanded back
o to the High Court to consider and decide other points
formulated by it.
35. For the aforesaid reason, Civil Appeal Nos.4215-4216
of 2007 are allowed in part and the decision arrived at by the
High Court against point no.4 holding that the suit was barred
E under Order 2 Rule 2 of the CPC is set aside. The matter is
remanded back to the High Court to decide the appeals by
recording its finding on other points formulated by it.
Consequently, other connected appeals, filed by the defendant
against the plaintiff, stand disposed of with a direction to
F maintain status quo with regard to possession of the suit
property till further orders of the High Court in this regard.
Rajendra Prasad Appeals disposed of.
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