Friday, 14 April 2017

Whether court can entertain plea of bar of O 2 R 2 of CPC if plaint of previous case is not proved?

In this context, learned counsel for the respondent has drawn
our attention to the Constitution Bench decision in Gurbux Singh vs.
Bhooralal AIR 1964 SC 1810
. In the said case, this Court while considering the issue of
Order II Rule 2 has opined thus:-
“6. .....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 of the 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 CS 28 of
1950 were not filed by the appellant in the present suit as
evidence in support of his plea under Order 2 Rule 2 of the
Civil Procedure Code. The learned trial Judge, however,
without these pleadings being on the record inferred what the
cause of action 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 of
the Civil Procedure Code was not maintainable.
7. ......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 on 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.”
[Emphasis supplied]
11. From the aforesaid statement of law, it is clearly discernible that
filing of the plaint of earlier suit and proving it as per law is imperative
to sustain the plea of Order 2 Rule 2 CPC. Unless that is done, the
stand would not be entertainable.
12. In this regard, we may refer to the Full Bench decision of the
High Court of Patna in Jichhu Ram and Others vs. Pearey Pasi and
Another  AIR 1967 Patna 423
, wherein the Full Bench was called upon to appreciate the
ratio laid down in the case of Gurbux Singh (supra). In that context,
the Full Bench has held thus:-

“7. These observations are fatal to the defendants'
contention in this litigation. Though the bar of Order 2, rule
2, was one of the issues expressly raised before the original
court (issue no.5), the defendants did not prove the plaint in
the previous rent suit. The only documents proved on their
behalf are copies of the order sheets in the execution case
(Exts. A and B). Mr. Chatterji, however, urged that from
certain admissions made in the plaint in this litigation this
Court should reasonably infer what was the nature of the
allegation in the previous rent suit, and by this process of
reasoning decide whether the cause of action in the two suits
was identical. This approach was condemned by their
Lordships of the Supreme Court in the aforesaid judgment
with these words:
“As the plea is a technical bar it has to be
established satisfactorily and cannot be presumed
merely on the basis of inferential reasoning.”
Their Lordships condemned the action of the learned trial
Judge in that court in inferring “what the cause of action
should have been from a reference to the previous suit
contained in the plaint as a matter of deduction.” I must,
therefore, reject this contention of Mr. Chatterji.”
13. Though Mr. Tanmay Agarwal, learned counsel for the
respondents has made enormous effort to distinguish the decision in
Gurbux Singh (supra), in our considered opinion, the same is not
distinguishable. It is mandatory that to sustain a plea under Order 2
Rule 2 of the Code of Civil Procedure, the defendant is obliged under
law to prove the plaint and the proof has to be as per the law of
evidence. We have no hesitation in saying that the ratio in Gurbux
Singh (supra) has been properly appreciated by the Full Bench of the
High Court of Patna in Jichhu Ram (supra).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3056-3057 OF 2017

Jayantilal Chimanlal Patel 
 V
Vadilal Purushottamdas Patel 
Dated:February 21, 2017.
Citation: AIR 2017 SC 1157


2. The appellant-landlord instituted HRP Suit No.686 of 1992,
seeking permanent injunction against the original tenant, the
predecessor-in-interest of the re
spondents herein, restraining them
from constructing any permanent structure on the tenanted premises
and further from subletting the same or transfer it in any manner. The
learned trial Judge vide judgment and decree dated 12th March, 1999,
partially decreed the suit restraining the respondents from subletting
or transferring the suit premises.
3. Being grieved by the aforesaid judgment, the appellant preferred
Civil Appeal No.79 of 1999. It is necessary to state here that the
appellant also initiated an action for eviction forming the subject
matter of HRP Suit No.1804 of 1998 before the Small Causes Court,
Ahmedabad, on the ground that the respondent-original tenant had
erected permanent structure on the premises without the consent of
the landlord. It is apt to note here that the same is one of the grounds
as find mention under Section 13 of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947, (for short, 'the 1947 Act')
which is applicable in the State of Gujarat.
4. The learned trial Judge dismissed the suit being hit by the
principle of Order 2 Rule 2 of the Code of Civil Procedure, as well as
on merits.
5. The said judgment and decree was assailed in Civil Appeal No.61
of 2004. The appeal arising out of the first suit and the appeal arising
out of the second suit were taken up together and were dismissed by
the common judgment dated 24th March, 2006.
6. The dissatisfaction of the non-success compelled the appellant to
file two civil revision applications, namely, Civil Revision Application
Nos.172 and 173 of 2006. The High Court by the common order dated
1
st April, 2014, dismissed both the civil revision applications.
7. It is submitted by Ms. Pyoli, learned counsel appearing for the
appellant that all the courts have fallen into error by applying the
principle under Order 2 Rule 2 of the Code of Civil Procedure when the
plaint in the earlier suit was not proved being marked as an exhibit.
Additionally, it is urged by her that the High Court has not addressed
to the merits of the case, but has been totally guided by the issue that
the suit was barred by Order 2 Rule 2.
8. Mr. Tanmay Agarwal, learned counsel appearing for the
respondents, per contra, would contend that the High Court has
correctly appreciated the spirit of Order 2 Rule 2 of the Code of Civil
Procedure by taking into consideration the findings recorded in the
earlier judgment and, therefore, this Court should not entertain any
attack on the judgment on the said score. As far as the delineation on
the merits is concerned, it is urged by Mr. Agarwal that the analysis
made by the High Court on that score, especially in paragraphs 10
and 10.1, are absolutely unimpeachable.
9. To appreciate the submissions raised at the Bar, we have
carefully perused the common order passed by the High Court in both
the civil revision applications. As we find that the High Court has
adverted at length to the facet of Order 2 Rule 2. On a scrutiny of the
entire judgment, we do not find that there is any mention that the
plaint in the earlier suit was proved.
10. In this context, learned counsel for the respondent has drawn
our attention to the Constitution Bench decision in Gurbux Singh vs.
Bhooralal1
. In the said case, this Court while considering the issue of
Order II Rule 2 has opined thus:-
“6. .....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 of the 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 CS 28 of
1950 were not filed by the appellant in the present suit as
evidence in support of his plea under Order 2 Rule 2 of the
Civil Procedure Code. The learned trial Judge, however,
without these pleadings being on the record inferred what the
cause of action 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 of
1
 AIR 1964 SC 1810
the Civil Procedure Code was not maintainable.
7. ......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 on 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.”
[Emphasis supplied]
11. From the aforesaid statement of law, it is clearly discernible that
filing of the plaint of earlier suit and proving it as per law is imperative
to sustain the plea of Order 2 Rule 2 CPC. Unless that is done, the
stand would not be entertainable.
12. In this regard, we may refer to the Full Bench decision of the
High Court of Patna in Jichhu Ram and Others vs. Pearey Pasi and
Another2
, wherein the Full Bench was called upon to appreciate the
ratio laid down in the case of Gurbux Singh (supra). In that context,
the Full Bench has held thus:-
2
 AIR 1967 Patna 423
“7. These observations are fatal to the defendants'
contention in this litigation. Though the bar of Order 2, rule
2, was one of the issues expressly raised before the original
court (issue no.5), the defendants did not prove the plaint in
the previous rent suit. The only documents proved on their
behalf are copies of the order sheets in the execution case
(Exts. A and B). Mr. Chatterji, however, urged that from
certain admissions made in the plaint in this litigation this
Court should reasonably infer what was the nature of the
allegation in the previous rent suit, and by this process of
reasoning decide whether the cause of action in the two suits
was identical. This approach was condemned by their
Lordships of the Supreme Court in the aforesaid judgment
with these words:
“As the plea is a technical bar it has to be
established satisfactorily and cannot be presumed
merely on the basis of inferential reasoning.”
Their Lordships condemned the action of the learned trial
Judge in that court in inferring “what the cause of action
should have been from a reference to the previous suit
contained in the plaint as a matter of deduction.” I must,
therefore, reject this contention of Mr. Chatterji.”
13. Though Mr. Tanmay Agarwal, learned counsel for the
respondents has made enormous effort to distinguish the decision in
Gurbux Singh (supra), in our considered opinion, the same is not
distinguishable. It is mandatory that to sustain a plea under Order 2
Rule 2 of the Code of Civil Procedure, the defendant is obliged under
law to prove the plaint and the proof has to be as per the law of
evidence. We have no hesitation in saying that the ratio in Gurbux
Singh (supra) has been properly appreciated by the Full Bench of the
High Court of Patna in Jichhu Ram (supra).
14. In view of the aforesaid, we are not able to sustain the conclusion
arrived at by the High Court on the basis that the suit instituted by
the plaintiff-appellant was hit by Order 2 Rule 2 CPC. However, the
controversy does not end there. The trial court and the appellate
court have adverted to the merits of the case, that is, whether the
tenant had constructed any permanent structure without the consent
of the landlord. It is manifest that the High Court has not adverted to
the same.
15. In view of the aforesaid, we are inclined to remit the matter to the
High Court for proper appreciation of the material on record and to
deal with the contentions raised by the appellants therein in
accordance with law within the parameters of the revisional
jurisdiction. We may hasten to clarify that if the High Court from the
original records finds that the plaint had been brought on record and
proved as per law, it would be bound to advert to the plea of Order 2
Rule 2 within the parameters of the said principle. Be it noted, if the
plaint has not been brought on record and proved, prayer for
amendment shall not be entertained to bring the plaint on record by
way of additional evidence by taking recourse to Order XLI Rule 27 of
the Code of Civil Procedure. In that event, the High Court shall
proceed only to deal with the merits of the case, that is, whether the
plaintiff has made out a case under Section 13(b) of the 1947 Act.
16. We may hasten to add that as far as the revision arising out of
refusal of the order of injunction is concerned, it does not deserve to
be dwelt upon by the High Court as we do not see there is any
justification to do so. The conclusion on that score by the High Court
is justified. Therefore, the civil appeal arising out of Civil Revision
Application No.172 of 2016, stands dismissed. What is required to be
deliberated by the High Court is whether the grounds urged for
eviction have been established by the landlord or not. That is the
subject matter of Civil Revision Application No.173 of 2006. The same
alone shall be dealt with.
17. In view of the aforesaid, the appeal relating to eviction is allowed
and the judgment of the High Court in that regard is set aside and the
matter is remitted to the High Court for reconsideration on merits.
There shall be no order as to costs. As we are remitting the matter, we
request the High Court to dispose of the civil revision application
within six months.

...........................................J.
 (Dipak Misra)
...........................................J.
 (A.M. Khanwilkar)
...........................................J.
(Mohan M. Shantanagoudar)
New Delhi;
February 21, 2017.
Print Page

No comments:

Post a comment