Back
1948 Supreme(SC) 45
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SIMONDS, LORD MORTON OF HENRYTON AND SIR MADHAVAN NAIR.
MOHAMMAD KHALIL KHAN - Appellant
Versus
MAHBUB ALI MIAN - Respondents
On appeal from the High Court at Allahabad.
Decided On : May. 31. 1948.
Solicitors for appellants :A. J. Hunter & Co. Solicitors for respondents: T. L. Wilson & Co.
A suit is barred under Order 2, Rule 2 CPC if it is based on the same cause of action as a previous suit. "Cause of action" comprises all essential facts necessary to prove the right to judgment, regardless of the specific property or defendants involved.
Headnote:(A) Code of Civil Procedure, 1908 - Order 2, Rule 2 - Cause of Action - Recovery of property - A suit for recovery of property is barred if the plaintiff omits to sue for a portion of the claim arising from the same cause of action in a previous suit - "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment - The test is whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit - If the essential facts required to establish title (such as ownership of the deceased, date of death, faith, and heirship) are identical for different properties, the cause of action is the same, regardless of the different items of property or different defendants involved. (Paras 14, 15, 16)
(B) Order 2, Rule 2 - Omission to sue - An attempt to amend a plaint to include an omitted claim, if rejected by the court, does not negate the fact that the claim was omitted and therefore does not remove the bar under Order 2, Rule 2. (Para 21)
(C) Principle of Approbate and Reprobate - A defendant who opposes an application to amend a plaint to include a claim is not precluded from subsequently raising a plea that the subsequent suit for that claim is barred by Order 2, Rule 2. (Para 22)
Facts of the case:
Plaintiffs filed a suit for possession of certain properties based on their status as heirs of a deceased person. In the first suit, they claimed only a portion of the deceased's estate. They later sought to amend the plaint to include other properties, but the application was rejected. Subsequently, they filed a second suit for the omitted properties. The defendants contended that the second suit was barred as it arose from the same cause of action as the first.
Findings of Court:
The court found that the cause of action for both suits was identical, as both were based on the same set of facts regarding the deceased's ownership and the plaintiffs' right to inherit. The omission of the second set of properties in the first suit triggered the bar under Order 2, Rule 2.
Issues: Whether the second suit for recovery of property was barred by Order 2, Rule 2 of the Code of Civil Procedure, 1908, on the ground that the claim was based on the same cause of action as a previous suit.
Ratio Decidendi: The cause of action is the foundation of the suit and consists of the essential facts necessary to prove the right to judgment. Where the right to multiple properties springs from the same source (such as inheritance from the same person), the cause of action is the same even if the properties are located in different districts or held by different persons. The rule aims to prevent the splitting of claims and multiplicity of suits.
Result: Appeal dismissed with costs.
Consolidated Appeal (No. 12 of 1945) resulting from the consolidation of two appeals, appeal No. 5 of 1942 and appeal No. 6 of 1942, from two decrees of the High Court (October 28, 1941), which affirmed two decrees, one of the Court of the Special Judge, First Class, Shahjahanpur, and one of the Court of the Civil Judge, Shahjahanpur, both dated January 14, 1939.
The following facts are taken from the judgment of the Judicial Committee. Appeal No. 6 of 1942 arose out of a suit (suit No. 2 of 1938) instituted (by appellant No. 1 and one Fida Ali Khan, on whose death appellants Nos. 2 to 5 were brought in as his representatives, for the recovery of certain property in the Shahjahanpur District. The respondents Nos. 1 to 4, hereinafter called the Mahbub brothers, and their respective wives respondents Nos. 5 to 8, to whom they had purported to transfer parts of the said property, were the defendants in the said suit. The suit was dismissed by the Civil Judge, Shahjahanpur, and the dismissal was confirmed by the High Court on appeal. Appeal No. 5 of 1942 arose out of an application, dated July 27, 1936, by three of the respondents in the above appeal under s. 4 of the United Provinces Encumbered Estates Act, 1934 (United Provinces Act XXV of 1934). In their statement under s. 8 of the Act they claimed as their own the property claimed by the appellants in appeal No. 6. Appellant No. 1 and Fida Ali Khan filed objections under s. 11 of the Act claiming the property as their own. Whilst those proceedings under the Act were pending they filed suit No. 2 of 1938 above referred to. As that suit was dismissed the Special Judge held in the proceedings under the Encumbered Estates Act that they were not proprietors of the property claimed by them in the said proceedings. An appeal by the appellants to the High Court in those proceedings was dismissed on October 28, 1941, on the ground that their appeal against the decree in suit No. 2 of 1938 had been dismissed.
The decision of the Board in appeal No. 5 of 1942 would depend on its decision in appeal No. 6 of 1942, which was the main appeal before the Board. The only question for decision in the main appeal was whether suit No. 2 of 1938 instituted by appellant No. 1 and Fida Ali Khan, since deceased, was barred by Or. 2, r. 2, of the Code of Civil Procedure, 1908. Both courts in India held that it was barred. If the question was decided in favour of the appellants, the other issues left undecided by the High Court would have to be decided. Order 2, r. 2, was as follows —
" (1.) Every suit shall include the whole of the claim which " the plaintiff is entitled to make in respect of the cause of " action ; but a plaintiff may relinquish any portion of his " claim in order to bring the suit within the jurisdiction of " any court.
" (2.) Where a plaintiff omits to sue in respect of, or " intentionally relinquishes, any portion of his claim, he shall " not afterwards sue in respect of the portion so omitted or " relinquished.
" (3.) A person entitled to more than one relief 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 all such reliefs, he shall not afterwards sue for any relief " so omitted.
" Explanation.—For the purposes of this rule an obligation " and a collateral security for its performance and successive " claims arising under the same obligation shall be deemed " respectively to constitute but one cause of action.
" Illustration.
"A lets a house to B at a yearly rent of Rs. 1,200. The " rent for the whole of the years 1905, 1906 and 1907 is due " and unpaid. A sues B in 1908 only for the rent due for " 1906. A shall not afterwards sue B for the rent for 1905 "or 1907."
The following pedigree elucidates the relationship of the parties —
Fazal Ali Khan
|
| |
x10080 | Muzaffar Ali Khan Amir Ali Khan
Gauhar Ali | |
Khan |
|
| | |
Muhammad Amjad Ali Khan |
Gaus Khan | |
| |
| | |
