Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRP No.728/2002
th
% Date of decision: 15 December, 2009
ROSHAN LAL .…Petitioner
Through: Mr. Ashok Agrawal,Advocate.
Versus
SMT. MAN MOHAN KAUR & ORS. ... Respondents
Through: Mr. T.N. Saxena, Advocate.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
This revision petition under Section 115 of the CPC has been preferred with
1.
th
respect to the order dated 6 March, 2002 of the Additional District Judge holding the
suit of the petitioner/plaintiff for the relief of recovery of possession of portions of
ground, first and second floor of property No.C-8, Housing Society, NDSE, Part-I, New
Delhi from the respondents, to the extent of the recovery of portions of the ground floor
and first floor, to be barred under Order 2 Rule 2 of the CPC. The suit was ordered to
survive only in respect of recovery of possession of portions of the second floor of the
property.
2. Notice of this petition was issued and the Trial Court record sent for, though
subsequently the same was sent back. The respondents have filed their counter affidavit.
CRP No.728/2002 Page 1 of 8
The petition has been languishing for the last seven years. The counsels for the parties
have been heard.
3. Though no plea as to the maintainability of the revision petition has been raised
by the counsel for the respondents, neither in the counter affidavit filed nor during oral
hearing but so as not to form a precedent or not to create a confusion, it is clarified that
the order holding the suit or a part of it to be barred by Order 2 Rule 2 of the CPC is a
decree within the meaning of Section 2 (2) of the CPC and being a decree would be
appealable and the revision petition would not lie. However, it would not serve the ends
of justice, if this Court at this stage in view of the same refuses to entertain this petition
or relegates the petitioner to the remedy of appeal. Not only did the respondents not raise
any objection in this regard, but this Court also having entertained the petition and issued
notice thereof, compels me to now dispose of the matter on merits, since the appeal
against the order also lies before a Single Judge only of this Court, though before a
different roster.
4. It is expedient to set out the facts. The property No.C-8, Housing Society, NDSE,
Part-I, New Delhi belonged to one Sh. Tula Ram who died leaving wife Smt. Prem Lata
and adopted son viz. the respondent no.1 herein. The respondent no.2 is the wife of the
respondent no.1. Smt. Prem Lata being the widow of Sh. Tula Ram, after the demise of
Sh. Tula Ram, filed a suit for permanent injunction against the respondents herein and
also against the father and brothers of the respondent no.2 herein. In the plaint in the said
earlier suit, copy whereof has been handed over by the counsel for the petitioner during
the course of the hearing, it was stated that Sh. Tula Ram executed a Will in the shape of
a declaration and in which he debarred the respondent no.1 from inheriting any share in
the aforesaid house or in any of the immovable properties of Sh. Tula Ram; that the
respondents had harassed Sh. Tula Ram and Smt. Prem Lata during their lifetime and for
this reason Sh. Tula Ram had executed the declaration-cum-Will aforesaid. It was further
pleaded in the plaint in the earlier suit that on the demise of Sh. Tula Ram his wife Smt.
Prem Lata had become absolute and sole owner of the property; that on the ground floor
CRP No.728/2002 Page 2 of 8
of the said property there were various tenants and one shop was in unauthorized and
illegal possession of the respondent no.1; that the respondent no.1 was merely a licensee
of Sh. Tula Ram and was allowed to live in one room and after the death of Sh. Tula Ram
occupied the other rooms also and continued to be a licensee and which license
terminated on the death of Sh. Tula Ram; that Smt. Prem Lata requested the respondents
to vacate the shop and the house on the first floor but they refused and rather beat and
th
harass Smt. Prem Lata; that on 5 July, 1994, the defendants in that earlier suit had asked
Smt. Prem Lata to sign some paper for transfer of the property. It was pleaded in the
th
plaint that the cause of action for filing the suit arose on 5 July, 1994 when the
defendants in the suit extended the illegal threats to transfer the property and raised
unauthorized construction thereon. The suit was, therefore, instituted in the Court of
Civil Judge, Delhi for a decree for permanent injunction restraining the defendants in that
suit from selling, transferring or parting with possession of the property aforesaid.
5. The suit from which this petition arises was instituted by the petitioner herein,
also pleading that the property belonged to Sh. Tula Ram and on demise of Sh. Tula
Ram, Smt. Prem Lata had become the owner thereof; that Smt. Prem Lata had instituted
the suit aforesaid for permanent injunction; that the respondents continued to harass Smt.
Prem Lata and owing whereto Smt. Prem Lata executed a Will bequeathing the property
to the petitioner herein; that the respondent no.1 was allowed to occupy one shop, one
godown on the ground floor and part of the first floor and second floor of the said house
as licensee of Sh. Tula Ram and “were allowed to continue to reside as licensee of late
Smt. Prem Lata”; that after the death of Smt. Prem Lata, the petitioner/plaintiff became
the owner of the property by virtue of Will of Smt. Prem Lata and terminated the license
th
of the respondent no.1 vide notice dated 13 December, 1997 and upon the failure of the
respondents to vacate the property, the suit was filed for the relief of possession and
mesne profits. The property was valued for the relief of possession at Rs.2,00,000/- and
for the relief of mesne profits at Rs.95,000/-. A copy of the plaint in the said second suit
has also been handed over in the course of hearing.
CRP No.728/2002 Page 3 of 8
6. The respondents filed written statement, copy whereof was also handed over
during the course of hearing. In the said written statement no plea of Order 2 Rule 2 of
the CPC was taken. The counsel for the petitioner contends that the court of Additional
District Judge where the second suit was pending however of its own, in view of the
statement in the plaint in the second suit that earlier a suit for permanent injunction had
been filed by Smt. Prem Lata, considered the aspect of Order 2 Rule 2 of the CPC and by
the order impugned in this petition held the suit qua the portions of the ground floor and
the first floor which were the subject matter of the earlier suit for injunction filed by Smt.
Prem Lata to be barred by Order 2 Rule 2 of the CPC. The Trial Court in arriving at the
said conclusion held that the properties in the two suits were common except for the
second floor; that the petitioner/plaintiff herein also describes the respondents as
licensees under Smt. Prem Lata; that the notice got issued by the petitioner/plaintiff to the
respondents of termination of license did not create any new cause of action in favour of
the petitioner because Smt. Prem Lata herself has pleaded that she had asked the
respondents to vacate and that since license of the respondents 1 & 2 stood terminated
during the lifetime of Smt. Prem Lata and she was fully entitled to sue for possession and
mesne profits and having not done so and having confined the relief in the first suit to
that of injunction only, the second suit for possession and mesne profits qua ground floor
and first floor was barred by Order 2 Rule 2 of the CPC.
7. The counsel for the petitioner has made only one submission. He has contended
that the earlier suit for injunction filed by Smt. Prem Lata was not decided on merits; that
th
on 16 August, 1995, the respondents which were defendants in that suit had made a
statement that the suit be decreed; In view of the admission of the claim by the
defendants in that suit, the suit was decreed and a decree sheet was drawn up.
8. Per contra, the counsel for the respondent has relied on:-
(i) Sardar Balbir Singh Vs. Atma Ram Srivastava AIR 1977 Allahabad 211 (FB)
which is however not found to support the case of the respondents. It rather
CRP No.728/2002 Page 4 of 8
distinguishes a cause of action from a right of action and lays down that there may
be several rights of action and one cause of action and rights may accrue at
different times from the same cause.
(ii) Gajanan R. Salvi Vs. Satish Shankar Gupte AIR 2004 Bombay 455 where an
earlier suit for injunction simplicitor, without the relief of specific performance of
agreement to sell which was also available was held to bar a subsequent suit for
specific performance.
(iii) Shankar Sitaram Sontakke Vs. Balkrishna Sitaram Sontakke AIR 1954 SC 352
where also the plea of Order 2 Rule 2 was upheld.
(iv) Bhau Daji Khade Vs. Patlu Malu Sable AIR 1923 Bombay 63 where also on
facts the plea of Order 2 Rule 2 was upheld.
(v) Indubai Vs. Jawaharlal AIR 1990 MP 80 laying down the ingredients for
applicability of Order 2 Rule 2 of the CPC.
9. Order 2 Rule 2 of the CPC is based on the principle that the defendant should not
be twice vexed for one and the same cause. It does not require that when a transaction or
right gives right to several causes of action they should be all combined in one suit or that
the plaintiff must lay his claim alternatively in the same suit for those different causes of
action. The rule is directed against two evils, the splitting of claim and the splitting of
remedies. The rule does not preclude a second suit based on a distinct and a separate
cause of action. To make the rule applicable, three conditions must be satisfied, viz. first
that previous and the present suits must arise out of the same cause of action; secondly,
they must be between the same parties; and thirdly that the earlier suit must have been
decided on merits. However the rule being penal in nature has to be considered strictly
though mandatorily.
CRP No.728/2002 Page 5 of 8
10. The Trial Court in the present case committed a grave illegality in, in the absence
of the plea of the Order 2 Rule 2 of the CPC in the written statement, entertaining the said
plea and apparently in the absence of the records of the first suit. The Supreme Court in
Rekabdas A. Oswal Vs. Deepak Jewellers (1999) 6 SCC 40 has held that plea of bar of
Order 2 Rule 2 must be taken expressly, if not taken, the court should not entertain and
decide the plea suo moto. The Supreme Court in Bengal Waterproof Limited v. Bombay
Waterproof Manufacturing Company AIR 1997 SC 1398 has also held that the plea
under Order 2 Rule 2 cannot be inferred and in the absence of being carved out in the
pleadings and the pleadings/record of the earlier suit being brought before the Court. It is
this error which appears to have led the Trial Court to have decided the suit on Order 2
Rule 2 of the CPC without noticing that in the earlier suit on the basis whereof the suit for
possession qua the ground floor and the first floor has been held to be barred, no finding
on merits or decision was given.
11. I am of the opinion that where the earlier suit was not contested by the parties and
was not decided on merits, as in the present case, the question of the subsequent suit even
if on the same cause of action being barred by Order 2 Rule 2 of the CPC does not arise.
Reliance in this regard can be placed on Amar Singh Vs Man Phool
MANU/PH/0394/1991. Observations to the said effect can also be found in the Division
Bench judgment of this court in State Bank of India Vs Sanjeev Malik 1996 (36) DRJ
484.
12. I am even otherwise not satisfied as to the applicability of Order 2 Rule 2 as to the
two suits in the present case. It cannot be lost sight of that the first suit was by a mother
against the son; the mother after the demise of her husband though claiming to be an
exclusive owner of the property was only seeking to restrain the son from dealing with
the property but not wanting to dispossess the son from the property. The second suit
was filed after the demise of the mother and by the petitioner claiming to be owner. From
a reading of the plaint in the first suit, it cannot be said that the cause of action for that
suit was against of the respondents for refusing to vacate the premises inspite of
CRP No.728/2002 Page 6 of 8
termination of the license. The cause of action for the first suit was the threat meted out
by the respondents to transfer the property. The suit was filed to redress that threat only
and in the face of the pleadings it cannot be said that any cause of action for the relief of
possession had then accrued. Though, it was pleaded that the license granted by Sh. Tula
Ram to the respondents to use the property terminated on the demise of Sh. Tula Ram
and Smt. Prem Lata had also asked the respondents to vacate but in the cause of action
paragraph in the plaint, the date of cause of action given was not of the date of death of
Sh. Tula Ram or of the date on which Smt. Prem Lata called upon the respondents to
vacate the premises. The only date given was of when the respondents were stated to
have attempted to make Smt. Prem Lata sign certain papers for transfer of the property.
The law does not compel a person to seek dispossession of a licensee specially when such
licensee is a close relative or a child and the law cannot be understood as depriving such
person or his successors from claiming the relief of possession from such licensee merely
because earlier a suit for keeping the licensee in check was filed. The Trial Court also
glossed over an important averment in the second suit; in paragraph 5 of the plaint, it was
mentioned that after the death of Sh. Tula Ram, Smt. Prem Lata had allowed the
respondents to continue in the property, thus, it was not the case of the petitioner/plaintiff
in the plaint that the possession/occupation of the respondents/defendant on the property
was illegal since the demise of Sh. Tula Ram and since Smt. Prem Lata had asked the
respondents to leave the property. The cause of action pleaded in the second suit from
which this petition arises was certainly distinct from the cause of action for the first suit.
13. For Order 2 Rule 2 of the CPC to apply, it is also necessary that the first suit
should have been instituted in the court competent to grant relief claimed in the
subsequent suit which is sought to be barred under Order 2 Rule 2 of the CPC. The first
suit was valued for the purpose of court fees at Rs.130/- and filed in the Court of the
lowest pecuniary jurisdiction. It was not the case of the respondents who in any case had
failed to take any plea under Order 2 Rule 2 of the CPC nor held by the trial court that the
suit for possession could also lie in the Court of the minimum pecuniary jurisdiction. The
CRP No.728/2002 Page 7 of 8
second suit for possession was filed on the basis of the market value of the property and
in the Court of the Additional District.
14. This court in Citibank N.A. v. Juggilal Kamlapat Jute Mills Co. Ltd. AIR 1982
Delhi 487 has held that an earlier suit by the bank against principal debtor on the basis of
equitable mortgage without impleading surety therein did not bar a subsequent suit based
upon deed or guarantee against both principal debtor and surety. It was held that the
cause of action in both the suits was different. Similarly, in State of Maharashtra v.
National Construction Company AIR 1996 SC 2367, the first suit to enforce bank
guarantee was held not to bar a second suit to claim damages for breach of contract
relating to which bank guarantee was given. Similarly, this Court in Jaswant Rai Vs. Lal
Chand 1981 2 Rent Law Reporter 125 has also held that a suit for mandatory injunction
directing the defendant to vacate and to remove things in the shop on the basis of a claim
of a master against the servant did not bar a subsequent suit for possession based upon
title against unauthorized occupation. It was held that since the relief for possession was
not necessary for the first suit to succeed and the same could lie without said relief for
possession being claimed, the relief for possession could not be said to have been
abandoned and the bar of Order 2 Rule 2 is not attracted. Similarly this court in Girdhari
Lal Dhara Vs. Amin Chand MANU/DE/0856/2001 held a subsequent suit for
possession to be not barred by earlier suit for mesne profits.
th
14. The petition therefore succeeds. The order dated 6 March, 2002 holding the suit
for possession qua ground floor and first floor to be barred by Order 2 Rule 2 of the CPC
is set aside. The petitioner/plaintiff shall be entitled to approach the Trial Court for
adjudication of the claim for possession of the ground and the first floor of the property
along with claim for possession of the second floor for which the suit was continued
before the Trial Court. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
December 15, 2009/ gsr
CRP No.728/2002 Page 8 of 8
+ CRP No.728/2002
th
% Date of decision: 15 December, 2009
ROSHAN LAL .…Petitioner
Through: Mr. Ashok Agrawal,Advocate.
Versus
SMT. MAN MOHAN KAUR & ORS. ... Respondents
Through: Mr. T.N. Saxena, Advocate.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
This revision petition under Section 115 of the CPC has been preferred with
1.
th
respect to the order dated 6 March, 2002 of the Additional District Judge holding the
suit of the petitioner/plaintiff for the relief of recovery of possession of portions of
ground, first and second floor of property No.C-8, Housing Society, NDSE, Part-I, New
Delhi from the respondents, to the extent of the recovery of portions of the ground floor
and first floor, to be barred under Order 2 Rule 2 of the CPC. The suit was ordered to
survive only in respect of recovery of possession of portions of the second floor of the
property.
2. Notice of this petition was issued and the Trial Court record sent for, though
subsequently the same was sent back. The respondents have filed their counter affidavit.
CRP No.728/2002 Page 1 of 8
The petition has been languishing for the last seven years. The counsels for the parties
have been heard.
3. Though no plea as to the maintainability of the revision petition has been raised
by the counsel for the respondents, neither in the counter affidavit filed nor during oral
hearing but so as not to form a precedent or not to create a confusion, it is clarified that
the order holding the suit or a part of it to be barred by Order 2 Rule 2 of the CPC is a
decree within the meaning of Section 2 (2) of the CPC and being a decree would be
appealable and the revision petition would not lie. However, it would not serve the ends
of justice, if this Court at this stage in view of the same refuses to entertain this petition
or relegates the petitioner to the remedy of appeal. Not only did the respondents not raise
any objection in this regard, but this Court also having entertained the petition and issued
notice thereof, compels me to now dispose of the matter on merits, since the appeal
against the order also lies before a Single Judge only of this Court, though before a
different roster.
4. It is expedient to set out the facts. The property No.C-8, Housing Society, NDSE,
Part-I, New Delhi belonged to one Sh. Tula Ram who died leaving wife Smt. Prem Lata
and adopted son viz. the respondent no.1 herein. The respondent no.2 is the wife of the
respondent no.1. Smt. Prem Lata being the widow of Sh. Tula Ram, after the demise of
Sh. Tula Ram, filed a suit for permanent injunction against the respondents herein and
also against the father and brothers of the respondent no.2 herein. In the plaint in the said
earlier suit, copy whereof has been handed over by the counsel for the petitioner during
the course of the hearing, it was stated that Sh. Tula Ram executed a Will in the shape of
a declaration and in which he debarred the respondent no.1 from inheriting any share in
the aforesaid house or in any of the immovable properties of Sh. Tula Ram; that the
respondents had harassed Sh. Tula Ram and Smt. Prem Lata during their lifetime and for
this reason Sh. Tula Ram had executed the declaration-cum-Will aforesaid. It was further
pleaded in the plaint in the earlier suit that on the demise of Sh. Tula Ram his wife Smt.
Prem Lata had become absolute and sole owner of the property; that on the ground floor
CRP No.728/2002 Page 2 of 8
of the said property there were various tenants and one shop was in unauthorized and
illegal possession of the respondent no.1; that the respondent no.1 was merely a licensee
of Sh. Tula Ram and was allowed to live in one room and after the death of Sh. Tula Ram
occupied the other rooms also and continued to be a licensee and which license
terminated on the death of Sh. Tula Ram; that Smt. Prem Lata requested the respondents
to vacate the shop and the house on the first floor but they refused and rather beat and
th
harass Smt. Prem Lata; that on 5 July, 1994, the defendants in that earlier suit had asked
Smt. Prem Lata to sign some paper for transfer of the property. It was pleaded in the
th
plaint that the cause of action for filing the suit arose on 5 July, 1994 when the
defendants in the suit extended the illegal threats to transfer the property and raised
unauthorized construction thereon. The suit was, therefore, instituted in the Court of
Civil Judge, Delhi for a decree for permanent injunction restraining the defendants in that
suit from selling, transferring or parting with possession of the property aforesaid.
5. The suit from which this petition arises was instituted by the petitioner herein,
also pleading that the property belonged to Sh. Tula Ram and on demise of Sh. Tula
Ram, Smt. Prem Lata had become the owner thereof; that Smt. Prem Lata had instituted
the suit aforesaid for permanent injunction; that the respondents continued to harass Smt.
Prem Lata and owing whereto Smt. Prem Lata executed a Will bequeathing the property
to the petitioner herein; that the respondent no.1 was allowed to occupy one shop, one
godown on the ground floor and part of the first floor and second floor of the said house
as licensee of Sh. Tula Ram and “were allowed to continue to reside as licensee of late
Smt. Prem Lata”; that after the death of Smt. Prem Lata, the petitioner/plaintiff became
the owner of the property by virtue of Will of Smt. Prem Lata and terminated the license
th
of the respondent no.1 vide notice dated 13 December, 1997 and upon the failure of the
respondents to vacate the property, the suit was filed for the relief of possession and
mesne profits. The property was valued for the relief of possession at Rs.2,00,000/- and
for the relief of mesne profits at Rs.95,000/-. A copy of the plaint in the said second suit
has also been handed over in the course of hearing.
CRP No.728/2002 Page 3 of 8
6. The respondents filed written statement, copy whereof was also handed over
during the course of hearing. In the said written statement no plea of Order 2 Rule 2 of
the CPC was taken. The counsel for the petitioner contends that the court of Additional
District Judge where the second suit was pending however of its own, in view of the
statement in the plaint in the second suit that earlier a suit for permanent injunction had
been filed by Smt. Prem Lata, considered the aspect of Order 2 Rule 2 of the CPC and by
the order impugned in this petition held the suit qua the portions of the ground floor and
the first floor which were the subject matter of the earlier suit for injunction filed by Smt.
Prem Lata to be barred by Order 2 Rule 2 of the CPC. The Trial Court in arriving at the
said conclusion held that the properties in the two suits were common except for the
second floor; that the petitioner/plaintiff herein also describes the respondents as
licensees under Smt. Prem Lata; that the notice got issued by the petitioner/plaintiff to the
respondents of termination of license did not create any new cause of action in favour of
the petitioner because Smt. Prem Lata herself has pleaded that she had asked the
respondents to vacate and that since license of the respondents 1 & 2 stood terminated
during the lifetime of Smt. Prem Lata and she was fully entitled to sue for possession and
mesne profits and having not done so and having confined the relief in the first suit to
that of injunction only, the second suit for possession and mesne profits qua ground floor
and first floor was barred by Order 2 Rule 2 of the CPC.
7. The counsel for the petitioner has made only one submission. He has contended
that the earlier suit for injunction filed by Smt. Prem Lata was not decided on merits; that
th
on 16 August, 1995, the respondents which were defendants in that suit had made a
statement that the suit be decreed; In view of the admission of the claim by the
defendants in that suit, the suit was decreed and a decree sheet was drawn up.
8. Per contra, the counsel for the respondent has relied on:-
(i) Sardar Balbir Singh Vs. Atma Ram Srivastava AIR 1977 Allahabad 211 (FB)
which is however not found to support the case of the respondents. It rather
CRP No.728/2002 Page 4 of 8
distinguishes a cause of action from a right of action and lays down that there may
be several rights of action and one cause of action and rights may accrue at
different times from the same cause.
(ii) Gajanan R. Salvi Vs. Satish Shankar Gupte AIR 2004 Bombay 455 where an
earlier suit for injunction simplicitor, without the relief of specific performance of
agreement to sell which was also available was held to bar a subsequent suit for
specific performance.
(iii) Shankar Sitaram Sontakke Vs. Balkrishna Sitaram Sontakke AIR 1954 SC 352
where also the plea of Order 2 Rule 2 was upheld.
(iv) Bhau Daji Khade Vs. Patlu Malu Sable AIR 1923 Bombay 63 where also on
facts the plea of Order 2 Rule 2 was upheld.
(v) Indubai Vs. Jawaharlal AIR 1990 MP 80 laying down the ingredients for
applicability of Order 2 Rule 2 of the CPC.
9. Order 2 Rule 2 of the CPC is based on the principle that the defendant should not
be twice vexed for one and the same cause. It does not require that when a transaction or
right gives right to several causes of action they should be all combined in one suit or that
the plaintiff must lay his claim alternatively in the same suit for those different causes of
action. The rule is directed against two evils, the splitting of claim and the splitting of
remedies. The rule does not preclude a second suit based on a distinct and a separate
cause of action. To make the rule applicable, three conditions must be satisfied, viz. first
that previous and the present suits must arise out of the same cause of action; secondly,
they must be between the same parties; and thirdly that the earlier suit must have been
decided on merits. However the rule being penal in nature has to be considered strictly
though mandatorily.
CRP No.728/2002 Page 5 of 8
10. The Trial Court in the present case committed a grave illegality in, in the absence
of the plea of the Order 2 Rule 2 of the CPC in the written statement, entertaining the said
plea and apparently in the absence of the records of the first suit. The Supreme Court in
Rekabdas A. Oswal Vs. Deepak Jewellers (1999) 6 SCC 40 has held that plea of bar of
Order 2 Rule 2 must be taken expressly, if not taken, the court should not entertain and
decide the plea suo moto. The Supreme Court in Bengal Waterproof Limited v. Bombay
Waterproof Manufacturing Company AIR 1997 SC 1398 has also held that the plea
under Order 2 Rule 2 cannot be inferred and in the absence of being carved out in the
pleadings and the pleadings/record of the earlier suit being brought before the Court. It is
this error which appears to have led the Trial Court to have decided the suit on Order 2
Rule 2 of the CPC without noticing that in the earlier suit on the basis whereof the suit for
possession qua the ground floor and the first floor has been held to be barred, no finding
on merits or decision was given.
11. I am of the opinion that where the earlier suit was not contested by the parties and
was not decided on merits, as in the present case, the question of the subsequent suit even
if on the same cause of action being barred by Order 2 Rule 2 of the CPC does not arise.
Reliance in this regard can be placed on Amar Singh Vs Man Phool
MANU/PH/0394/1991. Observations to the said effect can also be found in the Division
Bench judgment of this court in State Bank of India Vs Sanjeev Malik 1996 (36) DRJ
484.
12. I am even otherwise not satisfied as to the applicability of Order 2 Rule 2 as to the
two suits in the present case. It cannot be lost sight of that the first suit was by a mother
against the son; the mother after the demise of her husband though claiming to be an
exclusive owner of the property was only seeking to restrain the son from dealing with
the property but not wanting to dispossess the son from the property. The second suit
was filed after the demise of the mother and by the petitioner claiming to be owner. From
a reading of the plaint in the first suit, it cannot be said that the cause of action for that
suit was against of the respondents for refusing to vacate the premises inspite of
CRP No.728/2002 Page 6 of 8
termination of the license. The cause of action for the first suit was the threat meted out
by the respondents to transfer the property. The suit was filed to redress that threat only
and in the face of the pleadings it cannot be said that any cause of action for the relief of
possession had then accrued. Though, it was pleaded that the license granted by Sh. Tula
Ram to the respondents to use the property terminated on the demise of Sh. Tula Ram
and Smt. Prem Lata had also asked the respondents to vacate but in the cause of action
paragraph in the plaint, the date of cause of action given was not of the date of death of
Sh. Tula Ram or of the date on which Smt. Prem Lata called upon the respondents to
vacate the premises. The only date given was of when the respondents were stated to
have attempted to make Smt. Prem Lata sign certain papers for transfer of the property.
The law does not compel a person to seek dispossession of a licensee specially when such
licensee is a close relative or a child and the law cannot be understood as depriving such
person or his successors from claiming the relief of possession from such licensee merely
because earlier a suit for keeping the licensee in check was filed. The Trial Court also
glossed over an important averment in the second suit; in paragraph 5 of the plaint, it was
mentioned that after the death of Sh. Tula Ram, Smt. Prem Lata had allowed the
respondents to continue in the property, thus, it was not the case of the petitioner/plaintiff
in the plaint that the possession/occupation of the respondents/defendant on the property
was illegal since the demise of Sh. Tula Ram and since Smt. Prem Lata had asked the
respondents to leave the property. The cause of action pleaded in the second suit from
which this petition arises was certainly distinct from the cause of action for the first suit.
13. For Order 2 Rule 2 of the CPC to apply, it is also necessary that the first suit
should have been instituted in the court competent to grant relief claimed in the
subsequent suit which is sought to be barred under Order 2 Rule 2 of the CPC. The first
suit was valued for the purpose of court fees at Rs.130/- and filed in the Court of the
lowest pecuniary jurisdiction. It was not the case of the respondents who in any case had
failed to take any plea under Order 2 Rule 2 of the CPC nor held by the trial court that the
suit for possession could also lie in the Court of the minimum pecuniary jurisdiction. The
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second suit for possession was filed on the basis of the market value of the property and
in the Court of the Additional District.
14. This court in Citibank N.A. v. Juggilal Kamlapat Jute Mills Co. Ltd. AIR 1982
Delhi 487 has held that an earlier suit by the bank against principal debtor on the basis of
equitable mortgage without impleading surety therein did not bar a subsequent suit based
upon deed or guarantee against both principal debtor and surety. It was held that the
cause of action in both the suits was different. Similarly, in State of Maharashtra v.
National Construction Company AIR 1996 SC 2367, the first suit to enforce bank
guarantee was held not to bar a second suit to claim damages for breach of contract
relating to which bank guarantee was given. Similarly, this Court in Jaswant Rai Vs. Lal
Chand 1981 2 Rent Law Reporter 125 has also held that a suit for mandatory injunction
directing the defendant to vacate and to remove things in the shop on the basis of a claim
of a master against the servant did not bar a subsequent suit for possession based upon
title against unauthorized occupation. It was held that since the relief for possession was
not necessary for the first suit to succeed and the same could lie without said relief for
possession being claimed, the relief for possession could not be said to have been
abandoned and the bar of Order 2 Rule 2 is not attracted. Similarly this court in Girdhari
Lal Dhara Vs. Amin Chand MANU/DE/0856/2001 held a subsequent suit for
possession to be not barred by earlier suit for mesne profits.
th
14. The petition therefore succeeds. The order dated 6 March, 2002 holding the suit
for possession qua ground floor and first floor to be barred by Order 2 Rule 2 of the CPC
is set aside. The petitioner/plaintiff shall be entitled to approach the Trial Court for
adjudication of the claim for possession of the ground and the first floor of the property
along with claim for possession of the second floor for which the suit was continued
before the Trial Court. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
December 15, 2009/ gsr
CRP No.728/2002 Page 8 of 8