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2004(1) Supreme 867
SUPREME COURT OF INDIA
(From Kerala High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Kunjan Nair Sivaraman Nair -Appellant
versus
Narayanan Nair and Ors. -Respondents
Civil Appeal No. 838 of 2004
(Arising out of SLP (Civil) No. 7653/2002)
Decided on 6-2-2004
Counsel for the Parties :
For the Appellant : P. Krishnamoorthy, Sr. Advocate, Siby Sebastian and M.T. George, Advocates.
For the Respondents : T.L.V. Iyer, Sr. Advocate, Gopalakrishan R., Abhay Kumar, S.N. Jha and Subramonium Prasad, Advocates.
Held : We shall first deal with the question regarding applicability of Order II Rule 2 of the Code. Said provision lays down the general principle that suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not do so then he is visited with the consequences indicated therein. It provides that all reliefs arising out of the same cause of action shall be set out in one and the same suit, and further prescribes the consequences if the plaintiff omits to do so. In other words Order II Rule 2 centers round one and the same cause of action. (Para 6)
A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order II, Rule 2, sub-rule (3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. (Para 8)
Order II Rule 2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order II sub-rule (3). The illustrations given under the rule clearly brings out this position. (Para 10)
The salutary principle behind Order II Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief of entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court. (Para 10)
(ii) Civil Procedure Code, 1908-Section 11, Order II Rule 2-Res judicata-Rule of conclusiveness of judgment-Doctrine of res judicata and principle underlying Order II Rule 2-Distinction.
Held : Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. (Para 13)
The doctrine of res judicata differs from the principle underlying Order II Rule 2 in that the former places emphasis on the plaintiff s duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted. (Para 15)
(iii) Civil Procedure Code, 1908-Order II Rule 2-Kerala Compensation for Tenants Improvements Act, 1958- Plea of bar of-Suit seeking a decree for declaration of right and title to plaint schedule property and their possession-Plaintiffs case that plaint schedule property originally belonged to their deceased father and his mother on basis of a partition-Suit filed on ground that plaintiffs are only legal heirs and hence they had title over the plaint schedule property-Defendant 1 filed an application before the Land Tribunal to purchase jenmam right claiming to be cultivating tenant-Defendant s application dismissed-Plaintiffs title upheld but prayer for injunction rejected as possession was not found-Appeal against the judgment dismissed-Subsequently, suit filed claiming recovery of possession with mesne profits-Appellant defendant claiming that he was a co-owner, as plaintiffs father was his uncle and his son was residing in the property by constructing a building and effecting improvements-Claim to get value of building and improvements-Whether second suit was barred in terms of Order II Rule 2, CPC-(No)-Courts below were justified in holding that Order II Rule 2 of the Code had no application to facts of the case-Whether appellant could make a claim for compensation for alleged improvements made.
Subsequent suit was based on a distinct cause of action not found in or formed the subject matter of the former suit. (Para 19)
The Courts below were, therefore, justified in holding that Order II Rule 2 of the Code had no application to the facts of the case. Consequently, the decree passed in favour of the plaintiffs for recovery of possession shall stand affirmed and the appeal to that extent shall stand dismissed. (Para 21)
The appellant was claiming himself to have been put in possession as the nephew of late Narayanan Nair, and as a person in such possession - claims to have made certain improvements. Indisputably he was in possession. Though, in view of the judgments of the Courts below his claim to assert a title in him has been rejected and his possession cannot be a lawful possession to deny the right of the real owner to recover possession or assert any adverse claim against the lawful owner to any longer squat on the property - his initial induction or entering into possession cannot be said to be by way of encroachment. Whether such a person could not claim to have entertained a bona fide belief that he is entitled to make such improvements has to be factually determined with reference to the point of time as to when he really made such improvements. If the alleged improvements are found to have been made after the disputes between parties commenced then only it may not be in bona fide belief. Improvements made, if any, even thereafter only cannot fall under clause (iii). The Court dealing with the matter is required to examine the claim and find out whether the prescriptions in the different clauses individually or cumulatively have any application to the claim of the appellant for improvements alleged to have been made, if so really made. The Courts below have noted that the appellant made a claim that he was a lessee and thereafter made the improvements. The Courts below do not appear to have considered the issues arising at any rate in respect of the claim for alleged improvements said to have been from aforesaid angle. As factual adjudication is necessary as to whether appellant acted in good faith or with bona fide belief as envisaged, has to be decided taking into consideration the materials placed before the Court in that regard. It is, therefore, appropriate that the Trial Court should consider this aspect afresh uninfluenced by any observation made by it earlier or by the Appellate Courts. (Para 23)
Key Points: - The suit filed by the appellant is not barred under Order II Rule 2 because the cause of action in the present suit differs from that of the earlier suit (!) (!) . - The doctrine of res judicata under Section 11 requires the matter to have been directly and substantially in issue in a former suit between the same parties (!) (!) . - The appellant may be eligible for compensation for improvements under Section 2(d)(iii) if the improvements were made in good faith and on the basis of a bona fide belief of entitlement (!) (!) .
JUDGMENT
Arijit Pasayat, J.-Leave granted.
2. Appellant questions correctness of judgment rendered by learned Single Judge of the Kerala High Court which dismissed the Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short the Code ). The appellant was defendant No.1 in the suit for recovery of possession on the strength of title, instituted by 7 persons as plaintiff seeking recovery of possession. There were two defendants originally. As the first defendant died during the pendency of the first appeal before the Principal Sub Judge, Kottayam, his legal heirs were impleaded as respondents 9 to 13.
3. Case of the plaintiffs in nutshell was that the plaint schedule property originally belonged to their deceased father Narayanan Nair and his mother Kunjupennamma on the basis of a partition. On the death of mother, her right also devolved on Narayanan Nair who died on August, 1975. The suit was filed in Munsiff s Court, Palai on the ground that the plaintiffs are only legal heirs and hence they had title over the plaint schedule property. Defendant No.1 filed an application before the Land Tribunal, Palai to purchase the jenmam right claiming to be cultivating tenant. The same was dismissed. An appeal against the said order was also dismissed. The plaintiffs had earlier filed OS 208/77 seeking a decree for declaration of right and title to the plaint schedule property and their possession. Though their title was upheld but prayer for injunction was rejected as possession was not found. Appeal against the judgment in question did not bring any relief. Subsequently, the suit to which the present dispute relates was filed claiming recovery of possession with mesne profits. The appellant resisted the suit saying that he was a co-owner, as Narayanan Nair was his uncle. Both Narayanan Nair and his mother were looking after him and after the partition which took place when he was very young, Narayanan Nair gave the plaint schedule property to him and since then he was in possession and in enjoyment of the property. Though the application before the Land Tribunal and the appeal were dismissed, the rights obtained from Narayanan Nair and his mother remained unaffected. Even if title of the plaintiffs has been found in the earlier suit that was no longer in operation. It was further stated that his son is residing in the property by constructing a building and effecting improvements and, therefore, he is entitled to get value of the building and the improvements. Reference was made to the Kerala Compensation for Tenants Improvements Act, 1958 (in short the Compensation Act ). It was pointed out that the suit was barred in terms of Order II Rule 2 of the Code. The Trial Court framed 3 issues revolving round the question regarding applicability of Order II Rule 2 of the Code, and entitlement for the improvements claimed to have been made. The Courts below had found that the first suit was one for mere title and injunction, and the cause of action was not the same as that of the later suit; therefore, Order II Rule 2 of the Code had no application. Similarly, it was held that the provisions of Compensation Act had no application to the facts of the case as there was no material regarding any improvement. In any event, the appellant was not a tenant as defined under the Compensation Act.
4. Mr. P. Krishnamoorthy, learned senior counsel appearing for the appellant submitted that the conclusions of the Courts below are erroneous. Cause of action for both the suit was identical. In any event, the plaintiffs in the subsequent suit have claimed reliefs which were sought for in the earlier suit. To get the benefit of Section 2(d) of the Compensation Act the appellant is clearly eligible and, therefore, the Courts below were not correct in rejecting the stand.
5. In response, Mr. T.L.V. Iyer, learned senior counsel appearing for the respondents submitted that the High Court has recorded categorical findings regarding ineligi
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