MAIN POINT
Filing of earlier suit and proving it imperative for invoking Order II, Rule 2.

JUDGMENT

Dipak Misra, J.

Leave granted.

2. The appellant-landlord instituted HRP Suit No.686 of 1992, seeking permanent injunction against the original tenant, the predecessor-in-interest of the respondents 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 1st 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 v. 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 2