Whether it is necessary to file pleadings of previous suit for proving bar of O 2 R 2 of CPC?

Regarding the plea on the basis of Order 2 Rule 2 CPC it need only be noticed that Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, (1964) 7 SCR 831 held that the plea of a bar under Order 2 Rule 2 CPC being a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It was held 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.

"6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil 10 of 16 Procedure Code should succeed the defendant who raises the plea must make out; (i) 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. 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 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.

Punjab-Haryana High Court

Gurmit Kaur & Ors vs Harpal Singh on 21 February, 2019

                   RSA No.2719 of 2013 (O&M)                   


  Coram:      Hon'ble Mr. Justice Harinder Singh Sidhu

Citation: AIR 2019(NOC)731(P&H)

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To what extent deposition of witness made in earlier proceeding can be marked?

In view of the above precedential guidance, it is clear that as it is the case of the revision petitioner/respondent in the instant OP that the witness (PW 1) made a statement in his present 

deposition contrary to certain admissions, which he made in the deposition given by him in the former judicial proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination; and, on such confrontation, if he admits the confronted portions or statements in his previous deposition, such admissions can be recorded by the Trial Court in his present deposition; however, if, on such confrontation, he denies the previous statements in his previous/former deposition, which are contrary to his statements in his present deposition, then the confronted portions only of the previous deposition given in former judicial proceeding can be permitted to be marked, but, the entire deposition cannot be permitted to be marked in the instant case, in view of the facts and the legal position obtaining.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 4853 of 2018

Decided On: 25.04.2019

 Telanakula Kasi Viswanadham  Vs.  Pokuri Maruthi Prasad

Hon'ble Judges/Coram:

M. Seetharama Murti, J.

Citation: AIR 2019 AP 79

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What conditions are to be satisfied before deposition recorded in previous suit can be relied in subsequent suit?

6. As per the well settled law on the subject the following conditions are necessary to be satisfied before the evidence recorded in a previous judicial proceedings can be received in another judicial proceedings:-

(1) The evidence must have been given in a judicial proceeding or before any person authorized by law to take evidence;

(2) That the first proceeding was between the same parties as in the second proceeding or between representatives in interest of the parties;

(3) That the party against whom the deposition is tendered had the full opportunity of cross examining the deponent when the deposition was recorded;

(4) That the issues involved in both the proceedings are the same or are substantially the same;

(5) That the witness is incapable of being called at the subsequent proceeding on account of death, or incapability of giving evidence, or being kept out of the way by the other side, or an unreasonable amount of delay or expense etc.,

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

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Whether it is necessary for court to see pleadings of both suits to ascertain whether deposition recorded in previous suit is admissible in subsequent suit?

 Just like in a case of the res judicata etc., where the pleadings in the earlier and later to be filed to enable the Court to come to a conclusion that the issue in both the matters are the same, in a case of this nature also that if the Court has to come to a conclusion that the issues involved in both the suits are same/substantially the same and that the parties are same etc. Hence, there is a necessity for the Court to consider the pleadings or other material etc., in both the suits to come to this conclusion. The Court should also be convinced that the party, against whom the deposition is tendered, has had a full opportunity of cross-examining the defendants. For this the entire deposition of the witness must be filed and considered. Lastly, the Court should be convinced that the witness was "incapable" of giving evidence in the subsequent proceedings. The incapacity should not be temporary or momentary as it is when caused by the temporary weakness, illness etc. The Court should be clearly convinced on all these grounds and the party who wishes to file the deposition in the earlier suit should plead and prove these essential elements.

CONCLUSION:

10. In the case on hand the Trial Court did not have any material whatsoever to conclude (a) that the issues involved in both the proceedings are same or substantially the same; (b) that all the parties in the earlier suit had an opportunity of full and complete cross-examination of the witness whose deposition is sought to be marked; (c) that the witness was incapable of giving evidence because of his sickness or for some other similar reasons. As mentioned by this Court earlier, these are all the matters which have to be carefully assessed by the Court and proved by the petitioners. In fact, the affidavit filed in this case in support of the application to receive the deposition states that the witness in intentionally avoiding to give evidence (emphasis supplied), which clearly suggests that witness is conscious of what he is doing and is deliberately avoiding to give replies. In addition to this the counter filed also asserts that due to old age weakness and paralysis the witness was not giving evidence and the counter reiterates that he is not disabled.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

Hon'ble Judges/Coram:

D.V.S.S. Somayajulu, J.

Citation: AIR 2019 AP 18

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Whether court can stay suit proceeding as per S 151 of CPC?

Thus, section 10 of the Code bars the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Thus, section 10 of the Code specifically provides for the contingencies under which a subsequent suit can be stayed, viz., (i) where the issue is also directly and substantially in issue in a previously instituted suit; (ii) such suit is between the same parties, or between parties under whom they or any of them claim litigating under the same title; (iii) where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. There is no other provision in the Code which provides for stay of the suit by the court where the suit is instituted. Section 10 of the Code clearly exhausts the contingencies in which such power can be exercised. Therefore, if powers under section 151 of the Code are exercised, the same would clearly be in conflict with what had been expressly provided in section 10 of the Code and against the intentions of the legislature. Considering the scheme of the Code, it is apparent that the legislature intended the provisions of section 10 to be exhaustive insofar as the prohibition against proceeding with the subsequent suit is concerned. Therefore, the exercise of inherent powers under section 151 of the Code to stay the proceedings in contingencies not contemplated under section 10 of the Code would be against the legislative intention and against the interests of justice. Under the circumstances, the petitioner is not entitled to relief claimed in the application either under section 10 or section 151 of the Code.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 20580 of 2018

Decided On: 21.01.2019

HDFC Bank Limited Vs.  Ashima Limited

Hon'ble Judges/Coram:

Harsha Devani and Dr. A.P. Thaker, JJ.

Citation: AIR 2019 Guj 64

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Whether judgment passed by court in previous suit will be res judicata if limitation for appeal or review has not expired?

The conspectus of the above authorities shows that until the limitation period for filing of an appeal is over, the res remains sub judice. After the limitation period is over, the res decided by the first Court would then become judicata. However, questions arise as to what is to be done in matters where the hearing in the second case is shortly after the limitation period for filing an appeal in the first case has ended. At least two judgments, one of the Privy Council and one of the Bombay High Court, have referred to the fact that, in appropriate cases, the hearing in the second case may be adjourned or may be stayed in order to await the outcome of the appeal in the first case. See, Chandra Singh Dudhoria v. Midnapore Zemindary Co. Ltd. MANU/PR/0018/1941 : (1941) 69 IA 51 (PC) at 58-59 and Indra Singh and Sons Ltd. v. Shiavax. C. Cambata, MANU/MH/0018/1950 : ILR 1948 Bom 346 at 352.

23. If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding. If, however, a sufficiently long period has elapsed after limitation has expired, and no appeal has yet been filed in the first proceeding, the Court hearing the second proceeding would be justified in treating the first proceeding as res judicata. No hard and fast Rule can be applied. The entire fact circumstance in each case must be looked at before deciding whether to proceed with the second proceeding on the basis of res judicata or to adjourn and/or stay the second proceeding to await the outcome in the first proceeding. Many factors have to be considered before exercising this discretion-for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4233 of 2018 (Arising out of SLP (C) No. 25649 of 2017)

Decided On: 20.04.2018

Canara Bank Vs. N.G. Subbaraya Setty and Ors.

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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

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Whether issue of res judicata can be decided even though pleading of previous suit is not filed?

 Learned Court of First Instance had rightly observed that the plaintiffs could not have preferred their claim to the disputed land had they not been sons of Harbans Singh. The reasoning given by the Court of First Appeal while reversing the findings recorded under Issue No. 5 are without justified ground and the same are perverse and are liable to be reversed. Merely giving the reasoning that the plaintiffs were not parties to the suit of Harbans Singh does not make out a case that the present litigation is not covered as per principles of res judicata. Section 11 of the Code of Civil Procedure makes it ample clear that the former suit should be between the same parties or between the parties under whom they or any of them claim, litigating under the same title. The present case is certainly covered under the later part because the plaintiffs are claiming their title and litigating under the title of Harbans Singh only. Learned Court of First Appeal has completely ignored these facts while recording the findings and as such the said findings are hereby reversed.

27. The other reasoning given by learned Court of First Appeal in the present case are that copies of pleadings were not placed on the file.

28. The same reasoning is without any basis because facts to that extent were not disputed between the parties that the plaintiffs are sons of Harbans Singh and there was earlier round of litigation.

29. In view of the above, the findings recorded by learned Court of First Appeal on issue No. 5 are reversed. The present litigation is barred as per principles of res judicata and as such the plaintiffs have no locus standi to file the suit regarding the suit property. The findings on Issues No. 2,3 and 4 recorded by learned Court of First Appeal are also reversed.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 1748 of 1990 (O & M)

Decided On: 10.02.2015

 Harbhajan Singh Vs. Parduman Singh and Ors.

Hon'ble Judges/Coram:Dr. Shekher Dhawan, J.

Citation;AIR 2015(NOC)841 P&H

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Whether doctrine of Res judicata is applicable if raising of that issue in previous suit was discretionary?

Equivalent Citation: AIR1961Bom97, 1960(62)BOMLR360, ILR1960 Bom 493

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 115 of 1955

Decided On: 25.11.1959

Appellants: Mathurabai w/o Nilkanth Deshpande and Anr.
Vs.
Respondent: Ramkrishna Bhaskar Barve and Ors.

Hon'ble Judges/Coram:
S.P. Kotval and V.B. Raju, JJ.

Civil Procedure Code (Act V of 1908), Section 11 - Indian Contract Act (IX of 1872), Section 65 --Trustees of Deosthan unauthorizedly selling trust property to plaintiff--Suit for possession by Deosthan against plaintiff and trustees but trustees joined as formal parties and no relief claimed against them--Plaintiff contending that if sale void Deosthan to be ordered to refund consideration--Suit decreed and no appeal filed --Suit by plaintiff against trustees for recovering consideration--Whether judgment in former suit res judicata on question of liability of trustees--Discretionary relief claimed in former suit and issue raised on it--Whether principle of res judicata applies to such issue--Applicability of principle of res judicata where raising of issue not obligatory--Principle embodied in Section 65, Indian Contract Act, whether can be extended to property purchased from consideration of void contract.

A house belonging to a Deosthan was sold to the plaintiff for Rs. 2,000 by the defendants who were its trustees. Another trustee of the Deosthan filed a suit on its behalf against the plaintiff for a declaration that the sale of the house was void and for possession. The defendants were made formal parties to the suit and no relief was claimed against them. The plaintiff contended that if the sale deed was found to be void, the Deosthan should be put to terms and ordered to pay back Rs. 2,000. There was no prayer by the plaintiff that the defendants should be put to terms. The plaintiff's plea was rejected and the suit was decreed, the trial Judge finding that neither the Deosthan or the defendants could be put to terms before setting aside the sale. There was no appeal against the decree. Thereafter the plaintiff filed a suit against the defendants and the Deosthan and inter alia contended that a decree should be passed against the defendants for Rs. 2,000. On the question whether the judgment in the previous suit was res judicata on the question whether the defendants should be ordered to refund Rs. 2,000 to the plaintiff:-

Held:

That as the parties in the former suit had not joined issue on the question of the liability of the defendants to refund Rs. 2,000 and as there was no adverse finding in the judgment in the previous suit against the defendants, the judgment did not operate as res judicata on the question of the liability of the defendants to pay Rs. 2,000 to the plaintiff.

If a relief in a suit is claimed in fact, whether discretionary or not, and an issue raised on it the principle of res judicata would apply as the relief, though discretionary, having been claimed, it is a matter directly and substantially in issue. If a particular issue has not been raised, the principle of res judicata would still apply to it if that issue ought to have been made a ground of defence or attack. But this principle would not apply if the raising of that issue was discretionary and not obligatory.

The principle embodied in Section 65 of the Indian Contract Act, 1872, cannot be extended to properties purchased from the consideration of a void contract.

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When doctrine of res judicata is applicable between co-defendants?

 In the case reported as A.I.R.
(37) 1950 PC 17 (Chandu Lal v. Khalilur Rahaman) the
Privy Council has observed that doctrine of res judicata
applies as between parties who have been co-defendants
in a previous suit provided tests laid down by the Privy
Council are satisfied. The Privy Council has laid down
following three tests :-
(1) existence of conflict of interests between
co-defendants;
(2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief;
and
(3) decision given on the said question
between the co-defendants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.644 of 2004
 Gurudayalsing s/o Mehersing Bindra V Basant Singh s/o Mehersingh Bindra
CORAM: T.V. NALAWADE, J.
DATE : 21st APRIL 2014
Citation;2014 (4) ALLMR 692 Bom

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