Appeal dismissed regarding possession suit. Held Order 2 Rule 2 CPC bar untenable without proving previous suit pleadings. Vendor sold land thereafter void. Tenancy validly terminated. Plaintiff decree maintained.
Appeal dismissed, judgments and decrees of courts below affirmed, pending miscellaneous applications disposed against appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 371 of 2022 Reserved on: 09.10.2023 Date of Decision : 02.11.2023
Sheela Devi ...Appellant. Versus Santosh Kumari and another ...Respondents.
Coram
Hon’ble Mr. Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 Yes.
| For the Appellant | : Mr. Romesh |
Verma, |
Senior |
|---|---|---|---|
| Advocate with Advocate. |
Mr. Sumit | Sharma, | |
| For the Respondents | : Mr. G.R. Palsra, |
Advocate. |
Rakesh Kainthla, Judge
The present appeal is directed against the judgment & decree dated 23.8.2022, passed by the learned District Judge, Kullu, District Kullu, H.P., vide which the appeal filed by the appellant (defendant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
manner as they were arrayed before the learned Trial Court for convenience).
3
was also issued on 7.8.2007; however, these notices were returned un-served. The plaintiffs issued a fresh notice on 9.12.2012, which was served upon the defendants on 13.12.2012. The defendant failed to vacate the house or pay the arrears of rent. Hence, the suit was filed for seeking the relief, mentioned above.
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injunction and the outcome of the civil suit does not affect the present suit. The defendant is the owner and not liable to pay any rent or mesne profit. The defendant and her family members have resided in the house since 1982. She was also paying the house tax. The suit was filed without any basis. Hence, it was prayed that the same be dismissed.
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and plaintiff no.1 examined herself (PW-1) and Rajeev Singh (PW-2). The defendant examined Kulbhushan Singh (DW-1), Om Prakash (DW-2), herself (DW-3), Bhagat Ram (DW-4), Om Prakash (DW-5) and Anjana (DW-6).
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tenant was acceptable. The defendant did not pay any rent and her tenancy was terminated by a legal notice. She is liable to pay the rent and the mesne profit to the plaintiffs. Hence, the learned Trial Court answered issue no. 1, 1A in the affirmative, issue no. 2 to 5 in the negative and decreed the suit of the plaintiffs.
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the material placed before them. The real point of controversy was not considered. The points raised by the defendant were not considered and there was non-compliance with the provisions of Order 41 Rule 31 of CPC. The defendant is the owner and she was wrongly held to be a tenant. Hilnu had filed a civil suit against the defendant and her husband, which was compromised and Hilnu executed a sale deed in favour of the defendant. The plaintiff had also filed a civil suit No. 142 of 1993, which was decreed ex-parte. The relief sought in the present suit could have been sought in the previous suit; hence, the present suit is barred by Section 11 and Order 2 Rule 2 of CPC. The plaintiffs have not identified the suit land and no executable decree could have been passed. The version of the defendant was duly proved by her witnesses. The plaintiffs failed to prove that the defendant was inducted as a tenant. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set-aside.
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earlier filed civil suit bearing No. 142/93 which was decided on 29.08.1997 against the present appellant/ defendant?
Advocate, assisted by Mr. Sumit Sharma, Advocate, for the appellant/defendant and Mr. G.R. Palsra, learned Counsel for the respondents/plaintiffs.
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held to be barred by the principle of res-judicata and Order 2 Rule 2. Thus, he prayed that the appeal be dismissed.
“7. Learned Counsel for the appellant, however, urged that in his plaint in the present suit, the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant
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was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profits. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ‘mesne profits’ is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression ‘mesne profits’ is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words ‘mesne profits’ therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression ‘mesne profits’ has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because
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of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. We therefore consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order of remand which we are affirming.”
held:-
“7. A mere look at the said provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) of Rule 2 of Order 2 CPC is concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred by the same it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press in service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2, Rule 2, sub-rule (3) that the second suit of the plaintiff filed in 1982 is based on the same cause of action on which its earlier suit of 1980 was based and that because it had not prayed for any relief on the ground of passing
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off action and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. So far as this plea of the defendants is concerned there is a threshold bar against them for their failure to bring on record the pleadings of the earlier suit which unfortunately has not been properly appreciated by the courts below. A Constitution Bench of this Court in the case of Gurbux Singh v. Bhooralal [(1964) 7 SCR 831: AIR 1964 SC 1810] speaking through Ayyangar, J. in this connection has laid down as under:
“In order that a plea of a bar under Order 2, Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) 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 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 the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, unless there is an identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be 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 merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant 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 the pleadings in C.S. No. 28 of 1950 were not filed by the
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appellant in the present suit as evidence in support of his plea under Order 2, Rule 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action 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 being on the record, a plea of a bar under Order 2, Rule 2, Civil Procedure Code was not maintainable.”
8. In view of the aforesaid authoritative pronouncement of the Constitution Bench of this Court the learned trial Judge as well as the learned Single Judge of the High Court ought to have held that the plea raised by the defendants in the present case is barred at the threshold as the defendants had not produced on the record of the trial court the pleadings in the first suit. Thus there is a complete bar against the defendants from raising the bar of Order 2, Rule 2, sub-rule (3) against the plaintiff in the present case. In this connection, we may refer to one submission made by the learned counsel for the defendants which appealed to the learned Single Judge of the High Court. He submitted that the averments in the second suit of the plaintiff were that the first suit was misconceived and proper relief was not prayed for. Therefore, it can be inferred that the second suit was hit by the bar of Order 2, Rule 2, sub-rule (3) CPC and he further submitted that at least in the counter filed in reply to the special leave petition the defendants have produced the copy of the plaint in the first suit. We fail to appreciate how this effort on the part of the defendants can be of any avail to them. Firstly, the Constitution Bench of this Court in Gurbux Singh case [(1964) 7 SCR 831: AIR 1964 SC 1810] has clearly ruled that there cannot be any inference about the bar of Order 2, Rule 2, sub-rule (3) CPC which may be culled out from plaint in the second case and secondly once the plea of bar of Order 2, Rule 2, sub-rule (3) was
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not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the trial court they had missed the bus especially when even before the High Court no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application for additional evidence. Therefore, it is too late in the day for the defendants to contend that along with counter in the special leave petition before us they had produced a copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case of Gurbux Singh [(1964) 7 SCR 831: AIR 1964 SC 1810] , it must be held that it was not open to the defendants to raise the contention of the bar of Order 2, Rule 2, sub-rule (3) CPC in the present case and, therefore, the learned Single Judge of the High Court was clearly in error in non-suiting the plaintiff on that ground.
State Bank of Mysore 2007 (11) SCC 75 , and it was held:-
9. Now, we come to the merit of the contention of the appellant that the present suit is hit by Order 2 Rule 2 of the Code in view of the fact that the plaintiff omitted to claim relief based on the mortgage, in the earlier suit OS No. 131 of 1984. Obviously, the burden to establish this plea was on the appellant. The appellant has not even cared to produce the plaint in the earlier suit to show what exactly was the cause of action put in the suit by the Bank in that suit. That the production of pleadings is a must is clear from the decisions of this Court in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831] and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. [(1997) 1 SCC 99: AIR 1997 SC 1398: 1996 Supp (8) SCR 695] From the present plaint, especially Paras 10 to 12 thereof, it is seen that the Bank had earlier sued for recovery of the loan with interest thereon as a money suit. No relief was claimed for recovery of the money on the
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foot of the equitable mortgage. In that suit, the Bank appears to have attempted in execution, to bring the mortgaged properties to sale. The appellant had objected that the suit not being on the mortgage, the mortgaged properties could not be sold in execution without an attachment. That objection was upheld. The Bank was therefore suing in enforcement of the mortgage by deposit of title deeds by the appellant.
Syed Mohd. SalieLabbai v. Mohd. Hanifa, (1976) 4 SCC 780 , that, the respective pleadings of the parties in the previous suit have to be brought on record to determine the case of the parties. The recitals in the pleadings cannot be inferred from the judgment. It was observed (at page 790):
“8. In the instant case according to the plaintiffsrespondents, the identity of the subject matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion, the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment.”
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“12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato AIR 1936 PC 258: 1936 All LR 786, Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal (1970) 3 SCC 656 . However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue because the necessary facts were present to the mind of the parties and were gone into by the trial court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.
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statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. SalieLabbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : (1964) 7 SCR 831 placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council (188788) 15 IA 186: ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”
previous litigation, it cannot be inferred that the present suit is barred by the principle of res-judicata or under Order 2 Rule 2 of
CPC.
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the previous suit was filed by the plaintiffs for seeking a permanent prohibitory injunction against the defendant on the allegations that the plaintiffs were the owners in possession of the suit land. The defendant was a tenant. She was interfering with the suit land and raising construction on it. She was requested not to do so. Hence, the suit was filed to seek an injunction. It was never pleaded that the tenancy of the defendant was terminated. It was asserted in the present suit that the notice was served upon the defendant on 7.8.2007 terminating her tenancy which was not accepted. Again a fresh notice was issued on 9.12.2012 which was served upon the defendant. Therefore, the cause of action for filing the suit for possession by ejectment of the tenant had not arisen at the time of filing the previous suit and the necessary condition that the plaintiffs being entitled to the relief had omitted to sue for the same is missing. Similarly, it was asserted that the rent was not paid w.e.f. June, 1998. The previous suit was filed on 26.6.1993 and was decreed on 29.8.1997 much before the defendant stopped the payment of the rent. Hence, the cause of action for seeking the arrears of rent had also not accrued in favour of the
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plaintiffs at the time of filing the previous suit. Even otherwise, it was laid down by Andhra Pradesh High Court in Koduru Varalakshmamma v. Tata Raghulu, 1987 SCC OnLine AP 61 : (1987) 2 ALT 75 that the cause of action for each year’s rent is distinct and the suit filed for seeking the recovery of the arrears of rent for a particular year is not barred under Order 2 Rule 2 of CPC, by
a suit filed for the recovery of rent for previous years. It was observed:
5. In Chittoori Swamy v. Ravula Suryanarayana (2) 1970 (2) An WR 173 a Division Bench of this Court in the context of considering the petition filed by the landlord for eviction under the A.P. Tenancy Act, in relation to the bar under Order 2 Rule 2 CPC on the ground that the landlord should have included the claim for eviction for default for 19561957 and for failure to pay the rent for 1957-1958, it is held as follows:—
“The relief of eviction enures to the landlord for each successive defaults Committed by the tenant Default in each year constitutes a separate cause of action for the eviction of the tenant. The cause of action for the default committed in respect of 1956-1957 is a distinct cause of action from the default committed in respect of 1957-1958, though the relief that would be ultimately granted in respect of these successive defaults may be the same relief of eviction. Order 2 Rule 2 does not require that the relief of eviction based on distinct causes of action should be included in the same suit.”
6. Each year is a self-contained unit for the purpose of payment of rent. The default in each year constitutes an independent cause of action and therefore, the question
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of arrears of rent for the different years coming within the purview of the same cause of action does not arise 22. Therefore, the submission that the present suit is
barred under Section 11 of CPC and under Order 2 Rule 2 of CPC is not acceptable.
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The defendant is bound by these findings and cannot assert to the contrary.
“30.6. It remains trite that no one can convey a better title than what he had; as expressed in the maxim: Nemo dat quod non habet [See, for example, Narinder Singh Rao v. Mahinder Singh Rao, (2013) 9 SCC 425 : (2013) 4 SCC (Civ) 385 , where the testatrix had bequeathed property in excess to her share and this Court held that the bequest has to be treated only to the extent of the share held by the testatrix.]. The testatrix never had any right over the property belonging to the appellant and could not have conveyed to Respondent 1 any property which was of the ownership of the appellant or which might be acquired or raised by the appellant in future by her own funds. On this
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ground alone, the will in question is required to be considered void as per Section 89 of the Succession Act, when the principal bequeathing stipulation in the will suffers from uncertainty to the hilt.”
Versus Thamarasseri Roman Catholic Diocese (2022) 7 SCC 90 , wherein it was observed:-
“19. It is a fundamental principle of the law of transfer of property that "no one can confer a better title than what he himself has" (Nemo dat quod non-habet). The appellant's sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.”
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was not identified. This is not correct. The suit was filed regarding khasra numbers mentioned in the copy of jamabandi for the year 2009-10 (Ex.PW-1/F). Therefore, the suit land was identified by a specific number in the revenue record and the plea that the decree was not executable is not acceptable.
Final order:
( Rakesh Kainthla)
Judge
2nd November, 2023 ( Chander )
3 issues framed by the court
Whether the present suit is barred by Order 2 Rule 2 and Section 11 of CPC due to a previous suit filed by plaintiffs?
Whether the vendor of the disputed land could convey a better title than what he possessed?
Whether the termination of tenancy and claim for mesne profits were correctly adjudicated by courts below?
Colour shows how this judgement treated each authority
Gurbux Singh v. BhooralalExplained¶53
Gurbux Singh v. Bhooralal, (1964) 7 SCR 831: AIR 1964 SC 1810 · Who else cites this
Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co.Explained¶59
Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co., (1997) 1 SCC 99 · Who else cites this
S. Nazir Ahmad Vs. State Bank of MysoreExplained¶70
S. Nazir Ahmad Vs. State Bank of Mysore 2007 (11) SCC 75 · Who else cites this
Syed Mohd. SalieLabbai v. Mohd. HanifaExplained¶75
Syed Mohd. SalieLabbai v. Mohd. Hanifa, (1976) 4 SCC 780 · Who else cites this
V. Rajeshwari v. T.C. SaravanabavaExplained¶79
V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551: 2003 SCC OnLine SC 1405 · Who else cites this
Koduru Varalakshmamma v. Tata RaghuluExplained¶90
Koduru Varalakshmamma v. Tata Raghulu, 1987 SCC OnLine AP 61 : (1987) 2 ALT 75 · Who else cites this
Kavita Kanwar v. Pamela MehtaExplained¶102
Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209: 2020 SCC OnLine SC 464 · Who else cites this
Mrs. Umadevi Nambiar Versus Thamarasseri Roman Catholic DioceseExplained¶106
Mrs. Umadevi Nambiar Versus Thamarasseri Roman Catholic Diocese (2022) 7 SCC 90 · Who else cites this
2 provisions across 1 enactments
Sheela Devi
Santosh Kumari
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
