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2015 Supreme(Bom) 309
IN THE HIGH COURT OF BOMBAY at Aurangabad
A.I.S. CHEEMA, J.
Sayyed Noor – Appellant
Versus
Sayyed Minya & Others – Respondent
Civil Revision Application No. 150 of 2014
Decided on: 10-03-2015
Advocate Appeared:
For the Applicant:A.M. Nagarkar, Advocate.
For the Respondents:R1, Swati Nakhate, holding for Mansi P. Joshi, Advocate, R2 to R5, None.
Headnote:Civil Procedure Code, 1908 - Order II, Rule 2, Order XXIII, Rule 1 Applicability of constructive res judicata. - Where earlier suit for possession filed in year 2011 against defendants was withdrawn unconditionally without taking permission of Court under Order XXIII, Rule 1(3) therefore subsequent suit filed in year 2013 not maintainable. The plaintiff filed a suit in 2013 for possession of land and for removing obstruction of way against the defendant and his children. In 2011 the plaintiff had filed a suit claiming possession of the same land from the defendant which was withdrawn by him unconditionally without taking permission of the Court under sub-rule (3) of Rule 1 of Order XXIII.
Held, the plaintiff would be precluded from instituting fresh suit in respect of the same "subject-matter", The subject-matter of both the suits is same that, the plaintiff is claiming that his land to the extent of 40 R has been encroached by the defendant from the west of field of defendant and he wants encroachment removed. In view of Order XXIII, Rule 4 of CPC, the subsequent suit of 2013 would not be maintainable. From the comparison of both the plaints, it is quite clear that, the plaintiff had in the earlier suit 2011 also claimed possession of 40 R land from the western side of the field of defendant claiming that it was his land which had been encroached.
In that earlier suit, he referred to the measurement dated 8. 12.2010. Thus, at least from 8.12.2010 plaintiff claimed he knew of the encroachment. Looking to the map filed by the plaintiff, with his plaint in suit filed in 2013, if the said encroachment was there even when the earlier suit was filed, the plaintiff did not claim in that suit that the encroachment has obstructed his right of way of 20 ft. x 600 ft. from the northern part of field of defendant.
Order II, Rule 2 of CPC requires that, suit should include the whole claim which the plaintiff is entitled to make. Plaintiff cannot first bring suit only to remove encroachment and later another suit to remove some encroachment and consequential obstruction to alleged way. If right of way was there, it was obstructed even at the time of earlier suit due to alleged encroachment. Plaintiff should have in earlier suit itself claimed that the encroachment has further obstructed his right of way. Plaintiff does not appear to have done this when earlier suit in 2011 was filed.
Under Order II, Rule 2 of CPC, such claim must be deemed to have been relinquished and so barred. As regards the claim of possession of 1 acre land from the western side of the land of defendant, which according to plaintiff had been encroached, both the suits are clearly based on same cause of action. In 2013, merely by saying that plaintiff went to the defendant No. 1 on 14.11.2013 requesting to give back the possession of encroached land does not make out fresh cause of action.
1. This revision has been filed by Sayyed Noor – original defendant No.1 (hereinafter referred to as 'defendant' of Regular Civil Suit No.404/2013, filed by respondent No.1 – original plaintiff (hereinafter referred to as plaintiff). The plaint filed as R.C.S. No.404/2013 before the Civil Judge, Junior Division, Gangapur is for possession of 40 R land from Gat No.97, situated at Jogeshwari, Taluka Gangapur and for removing the obstruction to way of 20 ft. x 600 ft. The suit has been brought against applicant – defendant No.1 as well as his children – respondents No.2 to 5 - original defendant No.2 to 5.
2. The defendant filed application Exhibit 16 in the suit, claiming that in view of provisions of Order II Rule 2 and Order VII Rule 11 of the Code of Civil Procedure (C.P.C. for short), the suit deserved to be dismissed as there was earlier R.C.S. No.30/2011 filed by plaintiff for the same cause of action and which suit had been withdrawn unconditionally and so the suit was barred. The application of the defendant came to be dismissed by Jt. Civil Judge, Junior Division, Gangapur and hence, the present revision application.
3. I have heard learned counsel for the applicant – defendant No.1 and learned counsel for respondent No.1 – original plaintiff. Respondents Nos.2 to 5 are stated to be formal respondents in the revision filed by the defendant No.1. It has been argued by learned counsel for the defendant that for the same property in dispute, earlier plaintiff had filed R.C.S. No.54/2009 simplicitor claiming injunction against the defendant on the plea that defendant No.1 was encroaching land, with help of defendants Nos.2 to 4 arrayed therein. That suit came to be dismissed on 30.11.2010 after the suit was contested. Then the plaintiff filed R.C.S. No.30/2011 claiming possession of the same 40 R of land from the defendant. In the said suit, the present defendant had rather filed application against the plaintiff and injunction was granted in favour of the defendant. Subsequently, however, the plaintiff withdrew that suit unconditionally. Later on, the present suit R.C.S. No.404/2013 has been filed claiming possession of the same 40 R land and further claiming removal of obstruction to the alleged way. The learned counsel submitted that, as per Order II Rule 2 of C.P.C., it was necessary for the plaintiff to include the whole claim in the earlier suit R.C.S. No.30/2011 and could not split claim and having not done so, and having withdrawn the suit unconditionally, the subsequent suit could not be instituted for the same matter. The learned counsel relied on the case of “State Bank of India Vs. Gracure Pharmaceuticals Ltd.”, reported in AIR 2014 SC 731 to claim that the defendant cannot be vexed twice for the same cause of action by filing separate suits. According to the learned counsel, the trial Court, by the impugned order, rejected the application by referring to untenable reasoning that earlier suit R.C.S. No.30/2011 was only against Sayyed Noor (defendant No.1) and now his children have been added.
4. The learned counsel for the respondent No.1 submitted that, as claimed by the respondent No.1 in affidavit-in-reply in para 15 shows, the nature of suit of R.C.S. No.30/2011 and the nature of suit R.C.S. No.404/2013 were totally different. It has been argued by the learned counsel that the cause of action for both the suits are different and that the impugned order passed by the trial Court below Exhibit 16 was correct, legal and proper. According to the counsel, earlier suit R.C.S. No.54/2009 was not in respect of recovery of possession and it was simplicitor suit for injunction while R.C.S. No.404/2013 is on different cause of action and for different relief.
5. The questions before me are:-
(1) Whether the impugned order is illegal or is suffering from material irregularity ?
(2) Is the R.C.S. No.404/2013 filed by plaintiff barred in view of the unconditional withdrawal of R.C.S. No.30/2011 ?
6. The counsel for defe
