Friday, 1 March 2019

Whether bar as per O 2 R 2 of CPC can be proved on basis of photocopy of plaint?

True it is that the defendants have filed a photo copy, we cannot ignore that the law laid down by the Supreme Court in the case of Gurbux Singh (supra) lays down the legal requirement of filing the plaint as evidence to prove that the earlier suit was filed on the same cause of action as the subsequent suit and at that time, though the plaintiff could have asked for relief/reliefs sought in the subsequent suit, he omitted to do so and then without the leave of the Court, filed subsequent suit. Therefore, as emphatically propounded by Their Lordships in the Supreme Court in the recent decision, filing of the plaint, that means, leading of plaint as evidence in support of plea of non-maintainability of suit under Order 2 Rule 2 CPC was imperative. We do not find that the defendant, later on, filed any certified copy of the plaint or that his prayer to lead secondary evidence was allowed and the fact of having filed a suit earlier on the same cause of action was proved by leading secondary evidence or the learned Trial Court called for records of the earlier suit. Therefore, as the photo copy of the plaint was not admissible in evidence, it cannot be said that the legal requirement of filing the plaint of the earlier suit was even substantially complied with. The submission of learned counsel for the respondent that, the certified copy of the judgment of the earlier case refers to material plea taken by the plaintiff in its plaint in the earlier suit should be taken as proof as to what was the pleading, made by the plaintiff in the earlier suit, cannot be accepted. True it is that while delivering judgment in the earlier case, learned Trial Court in that case, referred to the pleadings but that cannot be said to be complete plaint being on record before the Court to examine whether the second suit ought to be held to be not maintainable under Order 2 Rule 2 CPC. We wish to emphasize that Their Lordships in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra) noted that such a plea based on provisions contained in Order 2 Rule 2 CPC is a technical bar which has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning which learned counsel for the respondent seeks us to do. Learned Trial Court recorded finding based on inferential process of reasoning and committed manifest error in law. Therefore, the impugned judgment is liable to be interfered with in this appeal.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

FA No. 175 of 2011

Decided On: 09.07.2018

 Vikas Ahuja  Vs.  Jaiprakash Joshi and Ors.

Hon'ble Judges/Coram:
Manindra Mohan Shrivastava and Rajani Dubey, JJ.

Citation: AIR 2019 Chhat 15


1. This appeal is directed against impugned judgment and decree dated 06/10/2010 passed by the 10th Additional District Judge, Raipur passed in Civil Suit No. 3A/2009, by which, the plaintiff's suit has been dismissed as barred under Order 2 Rule 2 CPC.

2. Relevant facts necessary for decision in this appeal are that the plaintiff filed a suit seeking a decree of specific performance of contract on the pleadings inter alia that under an agreement dated 02/12/2005, the defendant agreed to sell the property in dispute for a consideration of Rs. 4,00,000/- in favour of the plaintiff and received advance of Rs. 51,000/-. According to the plaintiff, even though the plaintiff was ready and willing to perform his part of contract, the defendant was avoiding and despite notice, the defendant did not execute the sale deed, therefore, the plaintiff had to file suit. Pleading was also made that earlier, the plaintiff filed a suit seeking permanent injunction that despite agreement between the parties, the defendants are proceeding to sell the property in dispute. Therefore, the decree, as prayed for, may be granted. During the pendency of the suit, another suit for grant of decree of specific performance had to be brought under the changed circumstances.

3. Respondent/defendants filed a written statement and took a specific plea, founded under the provisions of Order 2 Rule 2 of CPC, regarding maintainability of the suit on the ground that the plaintiff, having omitted to seek relief of specific performance of contract, which he could have sought in the earlier suit, subsequent suit for such relief was barred under the law. Learned Trial Court on the basis of the pleadings of the parties framed issue with regard to maintainability as well as limitation. On the issue of maintainability, learned Trial Court held that the suit was barred as the plaintiff had earlier filed a suit seeking declaration and permanent injunction on the same cause of action as in the present suit. As the plaintiff could have asked for that relief, but he having not sought that relief in the earlier suit, subsequent suit was barred under the law.

4. Learned counsel for the appellant raises a short but pointed submission relying upon the Constitution Bench judgment in the case of Gurbux Singh Vs. Bhooralal MANU/SC/0241/1964 : AIR 1964 SC 1810 that in order to sustain a plea of maintainability of the suit under Order 2 Rule 2 CPC, the defendant was obliged under the law to file and prove in evidence, the plaint of the earlier suit that the cause of action of the earlier suit and subsequent suit being one and the same and on the basis of the said cause of action, the plaintiff though entitled to claim the reliefs, omitted to claim the relief sought subsequently in another suit, so plea of maintainability could not at all be entertained. It is further submitted that the defendant only filed a photo copy of the same, which is not admissible in evidence and learned Trial Court while framing issue with regard to maintainability, proceeded to pass an order and dismissed the suit.

5. On the other hand, learned counsel for the respondent submits that though there is no quarrel with the legal proposition laid down by the Supreme Court in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra), he would submit that there was substantial compliance of legal requirement of leading evidence by filing copy of the plaint as photo copy of the same was filed by the defendant along with their written statement and plaintiff, at no point of time, raised an objection to the admissibility of the said document. He would further submit that in any case, certified copy of the judgment dated 31/08/2009 passed in earlier suit i.e. Civil Suit No. 138A-/2007 was also on records of the case which contains complete details regarding the plea made in the earlier suit. It is also argued that the plaintiff did not dispute but himself pleaded in para 10 of the plaint in the present case that he did file a suit earlier seeking a decree of declaration and permanent injunction founded on the same cause of action.

6. Before we advert to the records of the case, the settled legal position with regard to legal requirement of leading in evidence, the plaint of the earlier suit needs to be dealt with. In the Constitution Bench judgment in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra), the legal position in this regard was summarised as below:--

"6. In order that a plea of a bar under O. 2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, 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 O. 2. r. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2. r. 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 O. 2. r. 2, Civil Procedure Code was not maintainable."
Learned counsel for the appellant has cited various decisions of the Supreme Court settling this legal issue in the cases of S. Nazeer Ahmed Vs. State Bank of Mysore and Ors. MANU/SC/7017/2007 : AIR 2007 SC 989, Alka Gupta Vs. Narender Kumar Gupta MANU/SC/0793/2010 : AIR 2010 SCW 7037 and Jayantilal Chimanlal Patel Vs. Vadilal Purushottamdas Patel MANU/SC/0242/2017 : (2017) AIR (SCW) 1157.

In the aforesaid latest decision in the case of Jayantilal MANU/SC/0242/2017 : (2017) AIR (SCW) 1157 (supra), reiterating the earlier decisions, Their Lordships in the Supreme Court again observed as below:

"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.

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 the 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)."

7. In the present case, the plaintiff stated the fact regarding filing of earlier suit in para 10 of the plaint as below:--



From the reading of the aforesaid pleading, all that can be said is that the plaintiff had only referred to the filing of an earlier suit and contents of para 10 of the present case cannot be said to be repetition of the complete pleading of the earlier suit.

True it is that the defendants have filed a photo copy, we cannot ignore that the law laid down by the Supreme Court in the case of Gurbux Singh (supra) lays down the legal requirement of filing the plaint as evidence to prove that the earlier suit was filed on the same cause of action as the subsequent suit and at that time, though the plaintiff could have asked for relief/reliefs sought in the subsequent suit, he omitted to do so and then without the leave of the Court, filed subsequent suit. Therefore, as emphatically propounded by Their Lordships in the Supreme Court in the recent decision, filing of the plaint, that means, leading of plaint as evidence in support of plea of non-maintainability of suit under Order 2 Rule 2 CPC was imperative. We do not find that the defendant, later on, filed any certified copy of the plaint or that his prayer to lead secondary evidence was allowed and the fact of having filed a suit earlier on the same cause of action was proved by leading secondary evidence or the learned Trial Court called for records of the earlier suit. Therefore, as the photo copy of the plaint was not admissible in evidence, it cannot be said that the legal requirement of filing the plaint of the earlier suit was even substantially complied with. The submission of learned counsel for the respondent that, the certified copy of the judgment of the earlier case refers to material plea taken by the plaintiff in its plaint in the earlier suit should be taken as proof as to what was the pleading, made by the plaintiff in the earlier suit, cannot be accepted. True it is that while delivering judgment in the earlier case, learned Trial Court in that case, referred to the pleadings but that cannot be said to be complete plaint being on record before the Court to examine whether the second suit ought to be held to be not maintainable under Order 2 Rule 2 CPC. We wish to emphasize that Their Lordships in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra) noted that such a plea based on provisions contained in Order 2 Rule 2 CPC is a technical bar which has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning which learned counsel for the respondent seeks us to do. Learned Trial Court recorded finding based on inferential process of reasoning and committed manifest error in law. Therefore, the impugned judgment is liable to be interfered with in this appeal. We accordingly allow this appeal and set aside the impugned judgment and decree. The matter is remanded to the Trial Court for consideration afresh in accordance with law.

8. Learned counsel for the respondent submits that he may be granted liberty to lead appropriate evidence in respect of the plaint filed in the earlier suit.

Such a liberty is not necessary. It will be open for the respondent to take such recourse as may be permissible to him under the law.

9. We should make it clear that we have not commented on the merits and tenability of the claim regarding non-maintainability of the suit because we have held the impugned order unsustainable in law merely for the reason that the plaint was not on record before the Court below.

Let appellate decree be drawn accordingly.




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