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2012 Supreme(Bom) 1634
In the High Court of Bombay at Nagpur
M.N. GILANI, J.
Zalaksingh s/o Tikarambhau Bisen & Others
Versus
Pramodkumar s/o Prahaladrai Agrawal & Another
Second Appeal No.5 of 1995
Decided on : 31-08-2012
For the Appellants:R.K. Borkar, Advocate.
For the Respondent:V.R. Mundra, Advocate.
Headnote:Civil Procedure Code, 1908 - Section 11, Order II, Rule 2 - Constructive res judicata and bar under Order II, Rule 2.
Principle of res judicata, governs both parties, plaintiff as well as defendant however Order II, Rule 2 only applies to plaintiff and bars suit. - Doctrine of res judicata differs from bar under Order II, Rule 2. The former enjoins duty on the plaintiff or defendant to bring forward all the grounds of attack in respect of his claim whereas later requires plaintiff to claim all reliefs flowing from the same cause of action. The principle of res judicata governs both the parties, plaintiff as well as the defendant, however, Order II, Rule 2 only applies to the plaintiff and bars the suit.
Constructive res judicata, principle behind which is that if a party had an opportu nity to raise a matter in a suit, it would be considered to have been raised and decided. The underlined object is to cut short litigation between the parties so that a person may not be vexed again with regard to the same matter. It would be an abuse of the process of Court to allow a new proceeding to be started in respect of the same issue. The rationality of constructive res judicata is that the party should raise all his available pleas at the first instance and raising them at each successive stage is prohibited.
In the instant case the defendants by entering into two sale transactions at different point of time invited two separate actions, certainly, both these causes of action could have been joined together and in that event there would have been no misjoinder of the causes of action, however, this does not mean that the failure on the part of the plaintiffs to join both these distinct causes of action together invited bar of Order II, Rule 2 or Section 11, Explanation IV. Assuming that there were two pronotes giving simultaneous causes of action to the plaintiff to file suit in respect of both the pronotes but the plaintiff filed suit only in respect of one pronote. First suit is either dismissed or decreed. Can it be said that the second suit filed by him in respect of the other pronote is barred only on the ground that the defendants were the same and when the first suit was filed the cause of action to file the second suit had already been arisen. Conclusion deducible from the above is if properties are distinct, if pronotes are different or when the dispute arises out of breach of different contracts, although parties are same, the second suit for similar property or for other pronote or for breach of other similar nature of contract cannot be held to be barred. Neither Order II, Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one suit for various causes of action. What is essential is that the party is bound to put forward his whole case as plaintiff or defendant in respect of the same subject-matter of the suit. If the plaintiff omits to raise certain ground in respect of his claim, he will not subsequently be permitted to raise such ground in respect of his claim, if the subject-matters are separate and distinct, the second suit for such distinct subject-matter would not attract bar of Section 11 Explanation IV.
Civil Procedure Code, 1908 - Order II, Rule 2 - Bar to second suit.
When subsequent suit is based on cause of action different from that in first suit, subsequent suit is not barred. - The plaintiff is to include whole of his claim in respect of a cause of action. It, however, allows him to give up, abandon any part of his claim. When he omits to sue or relinquishes any part of his claim, he is not allowed afterwards to sue for the portion so omitted. Where the plaintiff is entitled to more than one relief in respect of same cause of action and omits without the leave of the Court any relief, he cannot thereafter sue for the relief so omitted. All successive claims arising under the same obligation shall be deemed to constitute one cause of action. However, Unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based, there would be no scope for application of Order II, Rule 2. Even when several causes of action arise from one transaction plaintiff is not obliged to sue for all of them in one suit. What the rule lays down is that if there is one entire cause of action, the plaintiff cannot split up the same into parts so as to bring separate suits in respect of those parts. When the subsequent suit is based on cause of action different from that in first suit, the subsequent suit is not barred.
In the instant case when first alienation of the land was made by executing a registered sale deed cause of action arose to the plaintiffs to challenge the same. Ignoring the second alienation, they filed the suit. remedies. By restricting suit to first alienation, the plaintiffs did not split up the claims or split up the remedies. The execution of the second sale deed for different area of the land although in favour of the same party is a distinct and separate cause of action. Even it cannot be said to be two causes of action arising out of the same transaction. Two sets of bundle of facts arising out of two different transactions and between similar parties would give rise to distinct causes of action and not one. Thus, two alienations of separate area of the lands on different dates although in favour of the same parties would not give rise to only one cause of action and would not cast a duty on a party to challenge the said alienations in one suit. Since there were two distinct alienations for distinct areas of lands filing of two separate suits questioning such alienations cannot attract bar of Order II, Rule 2.
1. This second appeal is directed against the judgment and decree dated 3rd September 1994 passed by Additional District Judge, Gondia in Regular Civil Appeal No.74/1994 whereby judgment and decree dated 31/7/1992 passed by the trial court in Regular Civil Suit no.34/1971 dismissing the suit was confirmed.
2. One Tikaram died leaving behind him three sons who are original plaintiffs 1 to 3 – appellants 1 to 3 herein and a widow who is original plaintiff no.4 – appellant no.4 herein. Plaintiffs pleaded that the land Khasra No.189, area 8.22 acres, situated at village Gondia (Buzruk.) was their ancestral property. During his life time Tikaram was addicted to vices. On 21/1/1959 Tikaram sold the land area 3.20 aces out of Kh. No. 189 to the defendants by executing sale deed. Plaintiffs filed Regular Civil Suit no.131/1963 against the defendants for setting aside the said sale deed. The judgment and decree passed in that suit was challenged in an appeal and now it has reached to finality. Again Tikaram had sold remaining portion of 4.82 acres of land out of same khasra number to the same defendants vide registered sale deed dated 11/2/1959. To challenge second alienation plaintiffs filed second suit being Regular Civil Suit No.34/1971. The defendants filed written statement at Exh.16 and resisted the suit inter alia on the grounds that the plaintiffs omitted to include the claim in respect of land covered under second sale deed when they had filed first suit being R.C.S. No.131/1963 and as such second suit is barred under Order 2 Rule 2 of the Civil Procedure Code. The learned trial court, mainly, relying upon the decision in case of Mohammad Khalil Khan V/s. Mehbub Ali Mian reported in AIR (36) 1949 Privy Council 78 held that the suit is barred under Order 2 Rule 2 and also on the principle of constructive res judicata as explained under section 11 Explanation IV of the Code.
3. The first appellate court formulated following point for its determination:
“Whether the suit is barred by Constructive res judicata and as per Order 2, Rule 2 of the Code?”
4. After considering the rival submissions, the first appellate court concluded thus:
“Hence, I conclude that the cause of action for both these suits was identical. On the same facts, the plaintiffs are claiming different reliefs in both the suits and such relief cannot be claimed by them in view of Order 2 Rule 2 especially explanation and illustration given below Order 2 Rule 2. The explanation says that, the successive claims arising under the obligation shall be deemed to constitute but one cause of action. In my opinion the word “And” appearing in this explanation to Order 2 Rule 2 should be read as disjunctive and therefore, cancellation of first sale-deed and the second sale-deed are two successive claims arising under the same obligation namely (want of legal necessity, want of benefit of estate, and joint family nature of the property) which create obligation on the defendants not to purchase the land from Tikaram and hence, it forms identical cause of action from both suits and therefore, the later suit is barred under Order 2 Rule 2 of Civil Procedure Code.”
5. This Court while admitting the appeal formulated following substantial questions of law:
“(1) Whether in the facts and circumstances of the case, the courts below were justified in holding that the two sale deeds dated 22.1.59 and 11.2.59 gave rise to the single cause of action and non-inclusion of challenge of sale deed dated 11.2.59 in Reg. C.S. No.131 of 63 amounted to relinquishment of part of that claim?
(2) Whether both the courts below were right in holding that the second suit challenging second sale deed was barred by the principles of constructive res judicata?”
6. Before I, proceed to consider the rival submissions advanced at the bar, for better appreciation of the facts of the case prayer clauses in both the suits are reproduced below:
7. R.C.S. No.131/1963
“(A) A decree declaring that the sal
