Full Judgment Text
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CASE NO.:
Appeal (civil) 838 of 2004
PETITIONER:
Kunjan Nair Sivaraman Nair
RESPONDENT:
Narayanan Nair and Ors.
DATE OF JUDGMENT: 06/02/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
(Arising out of SLP (Civil) No. 7653/2002)
ARIJIT PASAYAT, J.
Leave granted.
Appellant questions correctness of judgment rendered by
learned Single Judge of the Kerala High Court which
dismissed the Second Appeal filed under Section 100 of the
Code of Civil Procedure, 1908 (in short ’the Code’). The
appellant was defendant no.1 in the suit for recovery of
possession on the strength of title, instituted by 7 persons
as plaintiff seeking recovery of possession. There were two
defendants originally. As the first defendant died during
the pendency of the first appeal before the Principal Sub
Judge, Kottayam, his legal heirs were impleaded as
respondents 9 to 13.
Case of the plaintiffs in nutshell was that the plaint
schedule property originally belonged to their deceased
father Narayanan Nair and his mother Kunjupennamma on the
basis of a partition. On the death of mother, her right
also devolved on Narayanan Nair who died on August, 1975.
The suit was filed in Munsiff’s Court, Palai on the ground
that the plaintiffs are only legal heirs and hence they had
title over the plaint schedule property. Defendant no.1
filed an application before the Land Tribunal, Palai to
purchase the jenmam right claiming to be cultivating tenant.
The same was dismissed. An appeal against the said order
was also dismissed. The plaintiffs had earlier filed OS
208/77 seeking a decree for declaration of right and title
to the plaint schedule property and their possession.
Though their title was upheld but prayer for injunction was
rejected as possession was not found. Appeal against the
judgment in question did not bring any relief.
Subsequently, the suit to which the present dispute relates
was filed claiming recovery of possession with mesne
profits. The appellant resisted the suit saying that he was
a co-owner, as Narayanan Nair was his uncle. Both Narayanan
Nair and his mother were looking after him and after the
partition which took place when he was very young, Narayanan
Nair gave the plaint schedule property to him and since then
he was in possession and in enjoyment of the property.
Though the application before the Land Tribunal and the
appeal were dismissed, the rights obtained from Narayanan
Nair and his mother remained unaffected. Even if title of
the plaintiffs has been found in the earlier suit that was
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no longer in operation. It was further stated that his son
is residing in the property by constructing a building and
effecting improvements and, therefore, he is entitled to get
value of the building and the improvements. Reference was
made to the Kerala Compensation for Tenants Improvements
Act, 1958 (in short ’the Compensation Act’). It was pointed
out that the suit was barred in terms of Order II Rule 2 of
the Code. The Trial Court framed 3 issues revolving round
the question regarding applicability of Order II Rule 2 of
the Code, and entitlement for the improvements claimed to
have been made. The Courts below had found that the first
suit was one for mere title and injunction, and the cause of
action was not the same as that of the later suit;
therefore, Order II Rule 2 of the Code had no application.
Similarly, it was held that the provisions of Compensation
Act had no application to the facts of the case as there was
no material regarding any improvement. In any event, the
appellant was not a tenant as defined under the Compensation
Act.
Mr. P. Krishnamoorthy, learned senior counsel appearing
for the appellant submitted that the conclusions of the
Courts below are erroneous. Cause of action for both the
suit was identical. In any event, the plaintiffs in the
subsequent suit have claimed reliefs which were sought for
in the earlier suit. To get the benefit of Section 2(d) of
the Compensation Act the appellant is clearly eligible and,
therefore, the Courts below were not correct in rejecting
the stand.
In response, Mr. T.L.V. Iyer, learned senior counsel
appearing for the respondents submitted that the High Court
has recorded categorical findings regarding ineligibility of
the appellant to get benefit under the Compensation Act.
Cause of action of the two suits were entirely different.
The first one was for confirmation of possession, and
present is one for recovery of possession. So, the High
Court was justified in its conclusions about not
applicability of Order II Rule 2 of the Code.
We shall first deal with the question regarding
applicability of Order II Rule 2 of the Code. Said
provision lays down the general principle that suit must
include whole claim which the plaintiff is entitled to make
in respect of a cause of action, and if he does not do so
then he is visited with the consequences indicated therein.
It provides that all reliefs arising out of the same cause
of action shall be set out in one and the same suit, and
further prescribes the consequences if the plaintiff omits
to do so. In other words Order II Rule 2 centers round one
and the same cause of action.
Order II Rule 2 with its sub rules and illustration
reads as follows:
"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
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respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several
reliefs. - A person entitled to more than
one relief in respect of the same cause of
action may sue for all or any of such
reliefs; but if he omits, except with the
leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any
relief so omitted.
Explanation. - For the purposes of this rule
an obligation and a collateral security for
its performance and successive claims
arising under the same obligation shall be
deemed respectively to constitute but one
cause of action.
Illustration
A lets a house to B at a yearly rent of Rs.
1200. The rent for the whole of the years
1905, 1906 and 1907 is due and unpaid. A
sues B in 1908 only for the rent due for
1906. A shall not afterwards sue B for the
rent due for 1905 or 1907."
A mere look at the 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) is concerned, 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 into 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 II, Rule 2, sub-rule
(3) that the second suit of the plaintiff filed is based on
the same cause of action on which its earlier suit was based
and that because it had not prayed for any relief and it had
not obtained leave of the court in that connection, it
cannot sue for that relief in the present second suit. A
Constitution Bench of this case of Gurbux Singh v. Bhooralal
(1964 (7) SCR 831) in this connection has laid down as
under:
"In order that a plea of a bar 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 more
than one relief the plaintiff, without leave
obtained from the Court, omitted to sue for
the relief which the second suit had been
filed. From this analysis it would be seen
that the defendant would have to establish
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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 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 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 identify
of the cause of action in the two suits. It
is common that the pleadings in C.S. No. 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, 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."
The above position was again illuminatingly highlighted
by this Court in Bengal Waterproof Limited v. Bombay
Waterproof Manufacturing Company and Another (1997 (1) SCC
99).
Order II Rule 2, sub-rule (3) requires that the cause
of action in the earlier suit must be the same on which the
subsequent suit is based. Therefore, there must be identical
cause of action in both the suits, to attract the bar of
Order II sub-rule (3). The illustrations given under the
rule clearly brings out this position. Above is the ambit
and scope of the provision as highlighted in Gurbux Singh’s
case (supra) by the Constitution Bench and in Bengal
Waterproof Limited (supra). The salutary principle behind
Order II Rule 2 is that a defendant or defendants should not
be vexed time and again for the same cause by splitting the
claim and the reliefs for being indicated in successive
litigations. It is, therefore, provided that the plaintiff
must not abandon any part of the claim without the leave of
the Court and must claim the whole relief or entire bundle
of reliefs available to him in respect of that very same
cause of action. He will thereafter be precluded from so
doing in any subsequent litigation that he may commence if
he has not obtained the prior permission of the Court.
Rule of res judicata is contained in Section 11 of the
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Code. Bereft of all its explanations, namely, Explanations I
to VIII, Section 11 is quoted below :
"11. Res judicata. - No court shall try any
suit or issue in which the matter directly
and substantially in issue has been directly
and substantially in issue in a former suit
between the same parties, or between parties
under whom they or any of them claim,
litigating under the same title, in a court
competent to try such subsequent suit or the
suit in which such issue has been
subsequently raise, and has been heard and
finally decided by such court."
"Res judicata pro veritate accipitur" is the full maxim
which has, over the years, shrunk to mere "res judicata".
Section 11 contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman
Jurisprudence "Interest reipublicae ut sit finis litium" (it
concerns the State that there be an end to law suits) and
partly on the maxim "Nemo debet bis vexari pro una at eadem
causa" (no man should be vexed twice over for the same
cause). The section does not affect the jurisdiction of the
court but operates as a bar to the trial of the suit or
issue, if the matter in the suit was directly and
substantially in issue (and finally decided) in the previous
suit between the same parties litigating under the same
title in a court, competent to try the subsequent suit in
which such issue has been raised.
The above position was noted in Deva Ram and Another v.
Ishwar Chand and Another (1995 (6) SCC 733).
The doctrine of res judicata differs from the principle
underlying Order II Rule 2 in that the former places
emphasis on the plaintiff’s duty to exhaust all available
grounds in support of his claim, while the latter requires
the plaintiff to claim all reliefs emanating from the same
cause of action. Order II concerns framing of a suit and
requires that the plaintiffs shall include whole of his
claim in the framing of the suit. Sub-rule (1), inter alia,
provides that every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of
the very same cause of action. If he relinquishes any claim
to bring the suit within the jurisdiction of any Court, he
will not be entitled to that relief in any subsequent suit.
Further sub-rule (3) provides that the person entitled to
more than one reliefs in respect of the same cause of action
may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for such relief
he shall not be afterwards be permitted to sue for relief
so omitted.
The expression "cause of action" has acquired a
judicially-settled meaning. In the restricted sense cause of
action means the circumstances forming the infraction of the
right or the immediate occasion for the action. In the wider
sense, it means the necessary conditions for the maintenance
of the suit, including not only the infraction of the right,
but the infraction coupled with the right itself.
Compendiously the expression means every fact which it would
be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court.
Every fact which is necessary to be proved, as distinguished
from every piece of evidence which is necessary to prove
each fact, comprises in "cause of action".
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In Halsbury’s Laws of England (Fourth Edition) it has
been stated as follows:
"’Cause of action’ has been defined as
meaning simply a factual situation the
existence of which entitles one person to
obtain from the Court a remedy against
another person. The phrase has been held
from earliest time to include every fact
which is material to be proved to entitle
the plaintiff to succeed, and every fact
which a defendant would have a right to
traverse. ’Cause of action’ has also been
taken to mean that particular act on the
part of the defendant which gives the
plaintiff his cause of complaint, or the
subject matter of grievance founding the
action, not merely the technical cause of
action."
As observed by the Privy Council in Payana v.
Pana Lana (1914) 41 IA 142, the rule is directed to
securing the exhaustion of the relief in respect of a
cause of action and not to the inclusion in one and
the same action or different causes of action, even
though they arise from the same transaction. One great
criterion is, when the question arises as to whether
the cause of action in the subsequent suit is
identical with that in the first suit whether the same
evidence will maintain both actions. (See Mohammad
Khalil Khan v. Mahbub Ali Mian (AIR 1949 P.C. 78)
In Inacio Martins (deceased through LRs.) v. Narayan
Hari Naik and Ors. (1993 (3) SCC 123), an almost identical
question arose. In that case, the plaintiff had prayed for
protection of his possession by a prohibitory injunction.
That prayer was refused. Subsequent suit was for recovery
of possession. This Court held that in the former suit the
only relief that the Court could have granted was in regard
to the declaration sought for which the Court could not have
granted in view of the provisions of Specific Relief Act.
The cause of action for the first suit was based on the
apprehension about likely forcible dispossession. The cause
of action of the suit was not on the premise that he had, in
fact, been illegally and forcefully dispossessed and needed
the Courts’ assistance for restoration of possession. In
that background this Court held that subsequent suit was
based on a distinct cause of action not found in or formed
the subject matter of the former suit. The ratio of the
decision has full application to the facts of the present
case.
In Deva Ram’s case (supra) it was held that where the
previous suit was for recovery for loan which was dismissed
on the ground that the document on the basis of which the
suit was filed was not a sale deed but agreement for sale,
subsequent suit for recovery of possession on the basis of
title was not hit by Order II Rule 2 as the cause of action
in the two suits were not identical or one and the same.
The Courts below were, therefore, justified in holding
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that Order II Rule 2 of the Code had no application to the
facts of the case. Consequently, the decree passed in
favour of the plaintiffs for recovery of possession shall
stand affirmed and the appeal to that extent shall stand
dismissed.
That brings us to the residual question about
eligibility of the appellant to make a claim for
compensation for the alleged improvements made. Section 2(d)
of the Compensation Act reads as follows:-
"2(d): "Tenant" \026 "tenant" with its
grammatical variations and cognate
expressions includes \026
(i) a person who, as lessee, sub-lessee,
mortgagee or sub-mortgagee or in good faith
believing himself to be lessee, sub-lessee,
mortgagee, or sub-mortgagee of land, is in
possession thereof.
(ii) a person who with the bona fide
intention of attorning and paying a
reasonable rent to the person entitled to
cultivate or let waste-land, but without the
permission of such person, brings such land,
under cultivation and is in occupation
thereof as cultivator; and
(iii) a person who comes into possession of
land belonging to another person and makes
improvements thereon in the bona fide belief
that he is entitled to make such
improvements."
It is to be noted that the three clauses of Section
2(d) use different expressions to meet different situations
and class of persons. While clause (i) refers to a person
who is a lessee or sub-lessee, or mortgagee or sub-mortgagee
or in "good faith" believing himself to be any one of the
above such persons, clause (ii) deals with a person with
"bona fide intention" by doing any one of the things
enumerated is in occupation as cultivator, and clause (iii)
deals with a person who comes into possession of land
belonging to another and makes improvement thereon in the
"bona fide belief" that he is entitled to make such
improvements. According to the appellant, both clauses (i)
and (iii) are applicable to him. Clause (i) deals with the
person who bona fide believes himself to be a lessee in
respect of land in question. The fact that he asserted a
claim for purchase of jenmam rights, irrespective of the
rejection of the claim would go to show that at any rate he
was believing in good faith to be one such person viz.,
lessee. Clause (iii) encompasses a person who come into
possession of land belonging to another person and makes
improvements thereon with the bona fide belief that he is
entitled to make such improvements. The appellant was
claiming himself to have been put in possession as the
nephew of late Narayanan Nair, and as a person in such
possession - claims to have made certain improvements.
Indisputably he was in possession. Though, in view of the
judgments of the Courts below his claim to assert a title in
him has been rejected and his possession cannot be a lawful
possession to deny the right of the real owner to recover
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possession or assert any adverse claim against the lawful
owner to any longer squat on the property \026 his initial
induction or entering into possession cannot be said to be
by way of encroachment. Whether such a person could not
claim to have entertained a bona fide belief that he is
entitled to make such improvements has to be factually
determined with reference to the point of time as to when he
really made such improvements. If the alleged improvements
are found to have been made after the disputes between
parties commenced then only it may not be in bona fide
belief. Improvements made, if any, even thereafter only
cannot fall under clause (iii). The Court dealing with the
matter is required to examine the claim and find out whether
the prescriptions in the different clauses individually or
cumulatively have any application to the claim of the
appellant for improvements alleged to have been made, if so
really made. The Courts below have noted that the appellant
made a claim that he was a lessee and thereafter made the
improvements. The Courts below do not appear to have
considered the issues arising at any rate in respect of the
claim for alleged improvements said to have been from
aforesaid angle. As factual adjudication is necessary as to
whether appellant acted in good faith or with bona fide
belief as envisaged, has to be decided taking into
consideration the materials placed before the Court in that
regard. It is, therefore, appropriate that the Trial Court
should consider this aspect afresh uninfluenced by any
observation made by it earlier or by the Appellate Courts.
We also do not express any conclusive opinion on the merit
of the claim except indicating the parameters relevant for
such consideration. For that limited purpose, the matter is
remitted to the Trial Court which shall make an endeavour to
adjudicate the matter within six months from the date of
judgment, after allowing the parties to place material in
support of their respective stands.
The appeal is partly allowed to the extent indicated
and in other respects shall stand dismissed. Costs made
easy.
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