Saturday, 26 December 2015

Whether plea of res judicata and O 2 R 2 of CPC can be decided in application for rejection of plaint?


 In order to attract the bar under Order 2 Rule 2, it has to be specifically
pleaded by the defendant in the suit and the trial Court should have
specifically framed a specific issue in that regard wherein the pleading in
the earlier suit must be examined and the plaintiff is given an opportunity
to demonstrate that the cause of action in the subsequent suit is different.
Perusal of the case file of the Court below would show that alongwith the
application under Section 11 read with Order 2 Rule 2 of CPC, the order
of the earlier Civil Suit No.20-A/2003 was placed on record. The
Supreme Court in case of Coffee Board v. Ramesh Exports Private
Limited reported in (2014) 6 SCC 424, has reiterated the principles laid
down in case of Alka Gupta v. Narender Kumar Gupta {(2010) 10 SCC
141} and Gurbux Singh v. Bhooralal {AIR 1964 SC 1810} and had
reaffirm the proposition which reads as under :
“11. The bar of Order 2 Rule 2 comes into operation
where the cause of action on which the previous suit
was filed, forms the foundation of the subsequent suit;
and when the plaintiff could have claimed the relief
sought in the subsequent suit, in the earlier suit; and
both the suits are between the same parties.
Furthermore, the bar under Order 2 Rule 2 must be
specifically pleaded by the defendant in the suit and the
trial court should specifically frame a specific issue in
that regard wherein the pleading in the earlier suit must
be examined and the plaintiff is given an opportunity to
demonstrate that the cause of action in the subsequent
suit is different. This was held by this Court in Alka
Gupta v. Narender Kumar Gupta, which referred to the
decision of this Court in Gurbux Singh v. Bhooralal,
wherein it was held that :
“13.....'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: (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, 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 no scope for the application of the bar'.”
 Therefore, necessarily in order to come to a finding and examining the
cause of action pleaded by the plaintiff in the suit in between the suit filed
earlier whether was one and same, there should have been proper
opportunity of hearing by framing the issue in this regard. If certain facts
are not pleaded in the written statement, the same cannot be substituted
by way of an application and take the place of pleading. Furthermore, as
has been followed by this Court in case of Ballu Ram Sahu & Another
v. Smt. Lata Sahu & Another reported in 2014 (3) C.G.L.J. 99 and held
by the Supreme Court in case of Madhukar D. Shende v. Tarabai Aba
Shedage reported in (2002) 2 SCC 85 that the question of res judicata is
a mixed question of law and fact and if the plea has not been raised by
filing pleadings and the issues have not been framed, it cannot be held
that the defendant has established the plea of res judicata by raising
appropriate pleading. The plea therefore in the instant case cannot be
considered on the basis of the application under Section 11 readwith
Order 2 Rule 2 of CPC in absence of any issues.

HIGH COURT OF CHHATTISGARH, BILASPUR
 F.A. No. 220 of 2 0 12
Sardar Satpal Singh, S/o. Sardar Late Vidyal Singh, 
Versus
Smt. Saroj Shukla, 
Hon'ble Shri Justice Goutam Bhaduri
Order dated;03/08 /2015
Citation;AIR 2015 Chhatisgarh 170

1. This appeal is against the judgment and decree dated 06.10.2012
passed in Civil Suit No.02-A/2012 by the Second Additional District
Judge, Ambikapur, whereby, the suit filed by the appellant/plaintiff was
dismissed with a finding that the suit filed is barred under the provisions
of Section 11 and Order 2 Rule 2 of CPC.
2. The brief facts of the case are that a civil suit for specific performance of
contract for sale dated 04.07.1987 in respect of the land bearing Khasra
No.1245 & 1246 alongwith the superstructure was filed against the
respondents. It was contended that pursuant to sell the entire sale
consideration of Rs.55,000/- has been paid to the respondents. ThePage 2
prayer made in such suit was for execution of the sale deed in terms of
the agreement entered in between the parties. After issuance of notice,
the written statement was filed wherein all the averments of the plaint
were denied. In the plaint, the periodical payments of sale consideration
were shown to be made at para 5 from 04.07.1987 to 11.10.2004 and
was stated that entire sale consideration was paid. The said averments
however were denied to the extent that the amount was not paid in lieu of
the sale consideration but was adjusted towards the rent proceed. On the
basis of pleadings of parties, the learned Court below framed the issues,
which reads as under :
 - okn fo"k; -
¼vkt fnukad&27-08-2012 dks ikfjr½
1- D;k oknh d s i{k esa Lo- t;ukFk 'kqDyk us oknxzLr Hkwfe dk
fodz; djus gsrq fodz; vuqc a/ki= fnukad&04-07-1987 dks
fu"ikfnr fd;k gS \
2- D;k mDr vuqc a/k d s lac a/k esa oknh us Lo0t;ukFk 'kqDyk dks
55]000@& :0 vnk fd;k gS \
3- D;k oknh vkSj Lo0t;ukFk 'kqDyk d s chp oknxzLr Hkwfe dk
izFke fodz; vuqc a/ki= fnukad&09-01-1985 dks gqvk Fkk \
4- D;k oknh }kjk izLrqr okn vof/k ckf/kr gS \
5- D;k oknh us okn dk mfpr ewY;kadu dj mfpr U;k;'kqYd
vnk ugha fd;k gS \
6- lgk;rk ,o a okn O;;
3. During the course of trial, after framing of the issues, an application was
preferred by the defendants/respondents under Section 11 read with
Order 2 Rule 2 of CPC. In such application, it was contended that earlier
to the present suit i.e. Civil Suit No.02-A/2012, earlier a suit was filed
before the Fifth Civil Judge Class-II, Ambikapur, which was numbered asPage 3
Civil Suit No.20-A/2003 in respect of same agreement of sale. It was
stated that the said civil suit was decided against the plaintiff, which was
subject of First Appeal before the First Additional District Judge,
Ambikapur. The said first appeal was decided on 10.02.2005 and
subsequently the same was subject of challenge in the Second Appeal
before the High Court and the Second Appeal was decided on
20.09.2011. Consequently, it was pleaded that earlier issues were
decided in Civil Suit No.20-A/2003 wherein the legality of agreement of
sale was held in affirmative but relief for specific performance was not
sought. Therefore, the subsequent Civil Suit No.02-A/2012, the present
suit, is barred as the judgment and decree passed in Civil Suit No.20-
A/2003 has attained its finality.
4. In reply to the application, the appellant/plaintiff denied the averments
and stated that the earlier civil suit was with respect to the declaration
and injunction and in such civil suit because of the pecuniary jurisdiction,
the suit was dismissed. Thereby, the finding of such earlier Civil Suit
No.20-A/2003 would be an outcome of the result by a Court having no
pecuniary jurisdiction. The trial Court thereafter on the basis of such
application under Section 11 read with Order 2 Rule 2 of CPC, passed
the impugned order dismissing the suit as barred and hence it is subject
of challenge before this Court.
5. Mr. A.K.Prasad, learned counsel for the appellant, would submit that the
order passed by the Additional District Judge whereby it was held that the
present suit is barred under Section 11 readwith Order 2 Rule 2 of CPC
is without any substance on record as these facts were neither pleaded in
the written statement by the defendants nor any issues were framed in
this regard. He submits that in order to attract the provisions of bar under
Section 11 readwith Order 2 Rule 2 of CPC, it should have beenPage 4
established on record on the basis of pleading and issues. Therefore
without framing of issues the provisions of Order 2 Rule 2 of CPC cannot
be invoked. He placed his reliance in (2014) 6 SCC 424 and would
submit that in order to attract the bar under Order 2 Rule 2 of CPC it
should have been pleaded by the defendant in the suit and the specific
issues should have been made in this regard. He further placed his
reliance in 2014 (3) C.G.L.J. 99 and stated that since the res judicata is a
mixed question of law and fact and if the plea has not been raised by
filing pleadings and the issues have not been framed, the same cannot
be decided as has been done in the instant matter. He further placed his
reliance in (2010) 10 SCC 141 and would submit that the plea of res
judicata is a restraint on the right of a plaintiff to have an adjudication on
his claim and therefore the suit cannot be short-circuited by deciding
issues of fact without there proper pleading and issues. He therefore
prays that the judgment and decree dated 06.10.2012 be set aside.
6. Per contra, Mr. B.P.Sharma alongwith Mr. Rahul Mishra, learned counsel
appearing for the respondents vehemently opposed the argument. He
would submit that the pleading is not necessary in view of the fact that
the decision of an earlier suit was admitted by the plaintiff in the reply to
the application under Section 11 read with Order 2 Rule 2 of CPC. He
referred to Section 11 and explanation clause 8 of CPC and would submit
that according to the provisions, even the adjudication is outcome of
Court of limited jurisdiction, the finding would be within the ambit of
Section 11. He placed his reliance in 2010 AIR SCW 6761 and stated
that in a suit for declaration of title and injunction when there is an
omission to claim relief of specific performance of agreement to sell, it
would amount to relinquishment of that part of claim. It is contended that
in the earlier suit for declaration and injunction, no claim was made forPage 5
specific performance of the agreement. He further placed his reliance in
(1994) 2 SCC 14. It was further contended that in a suit or proceeding,
notwithstanding the fact that the Court with limited or special jurisdiction
was not a competent Court to try the suit, the finding in such earlier suit
would be a res judicata by application of Explanation VIII to Section 11. It
is submitted that Section 11 aims to prevent multiplicity of the
proceedings and accords finality to an issue, so that parties are not
vexed twice and vexatious litigation would be put to an end. He lastly
placed his reliance in (2013) 1 SCC 625 and would submit that in case
the plaintiff omits to claim any relief or relinquishes a part of the claim in
absence of any leave to obtain the same, the subsequently relief would
be barred as in the instant case in the earlier round of litigation, the
plaintiff has not reserved his right of leave to claim the relief as
contemplated under Order 2 Rule 2 of CPC. Therefore, the subsequent
suit for specific performance is barred and the order is well merited.
7. I have heard learned counsel appearing for the parties at length and
perused the record.
8. Reading of the plaint would show that a suit for specific performance was
filed before the Court of Additional District Judge, Ambikapur, which was
numbered as Civil Suit No.02-A/2012. In such suit, the averments were
made to the extent that an agreement for sale dated 04.07.1987 was
executed between the parties in respect of certain properties i.e. land
bearing Khasra No.1245 & 1246 along with the superstructure made
therein at 1200 sq.ft. and further averments of the plaint would show that
the entire sale consideration of Rs.55,000/- having been paid, the prayer
was made that the sale deed be executed in favour of the plaintiff and the
decree be passed accordingly. In reply to plaint averments the pleadings
were denied except the fact that with respect to the sale consideration. ItPage 6
was contended in written statement that the amount of sale consideration
was not paid for the alleged agreement but the payments made were
adjusted as against the oral rent agreement as with the lapse of time
since the rent had increased.
9. At para 15 of the written statement, faintly it was stated that after death of
the original defendant, different litigations were pending in between the
parties before the High Court and Supreme Court and false & vexatious
litigation were proceeded. On reading of the plaint and the written
statement, admittedly, there is no pleading to the fact that in respect of
the same suit property, earlier civil suit was filed by the plaintiff for
declaration and injunction wherein the plea for specific performance of
the agreement was not claimed. Consequently, on the basis of the
pleading of the parties when the issues were framed as has been shown
at para 2 the issue with respect to the fact that the suit is barred under
Section 11 read with Order 2 Rule 2 of CPC was not framed by the Court.
10. The documents would show that for the first time, an application was
moved under Section 11 read with Order 2 Rule 2 of CPC by the
defendants wherein it was contended that on the earlier point of time in
between the same parties a civil suit was filed bearing No.20-A/2003
before the Fifth Civil Judge Class-II, which was decided on 14.10.2004.
The copy of the said order was also enclosed alongwith such application
wherein perusal of such order of civil suit it reflects that an issue was also
framed that whether an agreement to sell dated 04.07.1987 was
executed in favour of the plaintiff or not. Further, the finding was also
arrived at by the Court in affirmative. In such application, it was further
contended that in view of the decision of the earlier Civil Suit No.20-
A/2003, the subsequent Civil Suit No.02-A/2012 would be barred since
no relief or prayer for specific performance was made in earlier suit.Page 7
11. Therefore, perusal of written statement and application under Section 11
red with Order 2 Rule 2 of CPC would show that plea of res judicata and
bar of suit was raised by way of application and not in the written
statement. Therefore, no issues were framed on this aspect.
12. The object of Order 2 Rule 2 of CPC is to ensure that no defendant is
sued or vexed twice in regard to the same cause of action and second to
prevent a plaintiff from splitting of claims and remedies based on the
same cause of action. The effect of Order 2 Rule 2 of CPC is to bar a
plaintiff who had earlier claimed certain remedies in regard to a cause of
action, from filing a second suit in regard to other reliefs based on the
same cause of action. It does not however bar a second suit based on a
different and distinct cause of action.
13. It is a settled proposition that the plea of res judicata is a restraint on the
right of a plaintiff to have an adjudication of his claim. The plea has to be
clearly established. The plaintiff who is sought to be prevented by the bar
of constructive res judicata should have notice about the plea and have
an opportunity to put forth his contentions against the same. Reading of
the written statement in this case would show that there is no pleading
made with respect to the res judicata. It was only for the first time in the
application under Section 11 read with Order 2 Rule 2 of CPC such plea
was raised by the defendants. As has been held by the Supreme Court in
case of Alka Gupta v. Narendra Kumar Gupta reported in (2010) 10
SCC 141, the Court will not make a roving enquiry into the alleged
conduct of the plaintiff, tenability of the claim, the strength and validity
and contents of documents, without a trial and on that basis dismiss a
suit. The Court has specifically stated that the suit cannot be shortcircuited
by deciding issues of fact merely on pleadings and documents
produced without a trial. Page 8
14. In order to attract the bar under Order 2 Rule 2, it has to be specifically
pleaded by the defendant in the suit and the trial Court should have
specifically framed a specific issue in that regard wherein the pleading in
the earlier suit must be examined and the plaintiff is given an opportunity
to demonstrate that the cause of action in the subsequent suit is different.
Perusal of the case file of the Court below would show that alongwith the
application under Section 11 read with Order 2 Rule 2 of CPC, the order
of the earlier Civil Suit No.20-A/2003 was placed on record. The
Supreme Court in case of Coffee Board v. Ramesh Exports Private
Limited reported in (2014) 6 SCC 424, has reiterated the principles laid
down in case of Alka Gupta v. Narender Kumar Gupta {(2010) 10 SCC
141} and Gurbux Singh v. Bhooralal {AIR 1964 SC 1810} and had
reaffirm the proposition which reads as under :
“11. The bar of Order 2 Rule 2 comes into operation
where the cause of action on which the previous suit
was filed, forms the foundation of the subsequent suit;
and when the plaintiff could have claimed the relief
sought in the subsequent suit, in the earlier suit; and
both the suits are between the same parties.
Furthermore, the bar under Order 2 Rule 2 must be
specifically pleaded by the defendant in the suit and the
trial court should specifically frame a specific issue in
that regard wherein the pleading in the earlier suit must
be examined and the plaintiff is given an opportunity to
demonstrate that the cause of action in the subsequent
suit is different. This was held by this Court in Alka
Gupta v. Narender Kumar Gupta, which referred to the
decision of this Court in Gurbux Singh v. Bhooralal,
wherein it was held that :
“13.....'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: (1) that the second suit was in respect ofPage 9
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, 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 no scope for the application of the bar'.”
15. Therefore, necessarily in order to come to a finding and examining the
cause of action pleaded by the plaintiff in the suit in between the suit filed
earlier whether was one and same, there should have been proper
opportunity of hearing by framing the issue in this regard. If certain facts
are not pleaded in the written statement, the same cannot be substituted
by way of an application and take the place of pleading. Furthermore, as
has been followed by this Court in case of Ballu Ram Sahu & Another
v. Smt. Lata Sahu & Another reported in 2014 (3) C.G.L.J. 99 and held
by the Supreme Court in case of Madhukar D. Shende v. Tarabai Aba
Shedage reported in (2002) 2 SCC 85 that the question of res judicata is
a mixed question of law and fact and if the plea has not been raised by
filing pleadings and the issues have not been framed, it cannot be held
that the defendant has established the plea of res judicata by raising
appropriate pleading. The plea therefore in the instant case cannot be
considered on the basis of the application under Section 11 readwith
Order 2 Rule 2 of CPC in absence of any issues.Page 10
16. The argument which has been advanced by the learned counsel for the
defendants holds the sway on the merit of the case and the same cannot
be applied in the facts when the pleading of res judicata was not made in
the written statement. There is no dispute of legal proposition, which has
been advanced by the respondents but the same can only be considered
after framing of the issues by the learned Court below.
17. In the result, the appeal is allowed. The case is remitted back to the
Court below and if the parties choose to amend their pleadings, if so
advised, the Court may frame issue to adjudicate the matter afresh on
merits to decide the plea of res judicata.
18. In facts of the case, no order asto cost.
Sd/-
(Goutam Bhaduri)
Judge
 Ashok
Print Page

No comments:

Post a Comment