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SUPREME COURT OF INDIA
Ashok Bhushan, K.M. Joseph, JJ.
Pramod Kumar & Anr. – Appellant
Versus
Zalak Singh & Ors. – Respondents
Civil Appeal Nos. 1055 of 2019
Decided On : 10-05-2019
(A) Civil Procedure Code, 1908 – Order II Rule 2 – Bar on subsequent suit – Bar of Constructive Res Judicata – Plaintiff is to include whole of claim which he is entitled to make, in respect of cause of action – However, it is open to him to relinquish any portion of claim – If a plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished – In respect of omission to include a part of claim or relinquishing a part of claim flowing from a cause of action, result is that plaintiff is totally barred from instituting a suit later in respect of claim so omitted or relinquished – However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from Court, then a second suit for a different relief than one claimed in earlier suit, can be prayed for. (Paras 26 and 27)
(B) Civil Procedure Code, 1908 – Order II Rule 2 – Bar on subsequent suit – Bar of Constructive Res Judicata – Defence which is set up by defendants, would be irrelevant to determine what cause of action means – Reliefs which are sought by plaintiffs, will not be determinative of what constitutes cause of action – Cause of action in both suits, must be identical – In order that it be identical, what matters is substance of matter. (Para 28)
(C) Limitation Act, 1963 – Article 109 – Civil Procedure Code, 1908 – Order II Rule 2 – Bar on subsequent suit – Period of limitation under Article 109 is different from period of limitation in respect of first sale deed, cannot operate so as to exclude bar under Order II Rule 2 – Principle underlying Order II Rule 2 is that no man can be vexed twice over same cause of action – All claims and reliefs which arise from a cause of action, must be comprehended in one single suit – Order II Rule 2 provides for principle of repose – If this be underlying object of Order II Rule 2, fact that at the time when first suit was filed even though second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, mere fact that a different period of limitation is provided, cannot stand in way of bar under Order II Rule 2. (Para 35)
(D) Civil Procedure Code, 1908 – Order II Rules 2 and 3 – Bar on subsequent suit – Law does not compel a litigant to combine one or more causes of action in a suit – It is open to a plaintiff to combine more than one cause of action against same parties in one suit – However, embargo in Order II Rule 2 will arise only if claim which is omitted or relinquished and reliefs which are omitted and not claimed, arise from one cause of action – If there is more than one cause of action, Order II Rule 2 will not apply – Order II Rule 2 manifests a technical rule as it has effect of posing an obstacle in path of a litigant ventilating his grievance in Courts – No person shall be vexed twice on same cause of action – On same cause of action, plaintiffs having omitted to sue in respect of sale deed in question, bar under Order II Rule 2 would apply – judgment of High Court set aside. (Paras 41 and 42)
Facts of Case:
By impugned judgment, High Court has set aside concurrent findings of Courts below resulting in dismissal of suit filed by respondents (plaintiffs) on the ground that suit was barred by Order II Rule 2 of CPC as also constructive res judicata. Question to decide, is whether High Court was right in holding that bar, under Order II Rule 2, will not apply in facts of this case.
Findings of Court:
This is a case where plaintiff ought to have included relief in form of setting aside second sale deed also. This is not a case where second sale deed had not been executed when plaintiff instituted the first suit. We are not, for a moment, declaring effect of sale deed having been executed subsequently to institution of suit as we do not have to pronounce on effect of such a sale.
Result : Appeal allowed.
JUDGMENT :
K.M. JOSEPH, J.
1. This appeal by special leave is directed against the judgment and order dated 31.08.2012 passed by the High Court in Second Appeal No. 5 of 1995. By the impugned judgment, the High Court has set aside the concurrent findings of the Courts below resulting in dismissal of the suit filed by the respondents (plaintiffs) on the ground that the suit was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to ‘the CPC’) as also constructive res judicata. The High Court has remanded the matter to the First Appellate Court to decide on merits.
2. One Tikaram was the husband of respondent No.4 and the father of respondent Nos. 1 to 3. He was holding 8.22 acres of land in Khasra No.189 at Village Gondia in his name. On 21.01.1959, he sold the land to the extent of 3.20 acres out of the total 8.22 acres to the appellants and thereafter, on 11.02.1959, he sold the remaining portion of 4.82 acres of land, which was the balance out of 8.22 acres, also to the appellants. Tikaram passed away on 15.07.1959.
The respondents filed a suit (bearing Civil Suit No. 131 of 1963) for setting aside the Sale Deed dated 21.01.1959 and for other reliefs. The allegation made by the respondents in the suit was that the land was a joint family ancestral property and he had sold it for immoral purposes and in a manner prejudicial to the interest of joint family. He was addicted to drink and there was no necessity to sell the property.
3. On 31.01.1969, the Trial Court dismissed the said suit holding that Tikaram was the owner of the property due to the partition effected in the year 1957. Hence, he had the right to sell the suit land. The appellants were bona fide purchasers.
4. Aggrieved by the decree of the Trial Court, the respondents filed an appeal (bearing Civil Appeal NO. 22 of 1969) on 10.02.1971.
5. The respondents again filed the present suit (bearing Civil Suit No. 34 of 1971) challenging the Sale Deed dated 11.02.1959 and seeking other reliefs. It is the said suit which came to be dismissed both by the Trial Court and the First Appellate Court. The Trial Court answered the issues including whether the Suit is barred under Order II Rule 2 and also affected by constructive res judicata. It found that the suit is liable to be dismissed on the ground of Order II Rule 2 and constructive res judicata. The dismissal by the Appellate Court was essentially on the basis of the provisions of Order II Rule 2 of the CPC as also constructive res judicata on the score that the second alienation dated 21.02.1959 ought to have been the subject matter of the earlier suit. The Appellate Court, in fact, found that the Trial Court was right in answering the other points. It is to be noted that the judgment of the Trial Court in the first suit came to be reversed in the civil appeal and the same has become final.
6. The High Court, however, reversing the orders of both the courts found that Order II Rule 2 will not be a bar. For Order II Rule 2, the cause of action in the first suit and the cause of action in the second suit must be identical. In this case, there were two alienations by the Tikaram giving rise to two cause of actions. It is also found that constructive res judicata will not apply.
7. We have heard learned counsel for the parties and perused the record.
8. Learned counsel for the appellants contended that the High Court has clearly erred in coming to the conclusion that Order II Rule 2 was not a bar. Order II Rule 2 is indeed attracted. He took us through the pleadings in the two suits and contended that the cause of action in the second suit is identical with the cause of action in the first suit. As on the date of the institution of the first suit, the second alienation was very much available to be impugned and it is not open to the respondents to split the cause of action in separate suits and s
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