The onus of proving delivery of possession and the application of Order II Rule 2 of the CPC were central to the court's decision.

RAJIV SAHAI ENDLAW, J.

1. The suit is ripe for framing of issues.

2. The counsel for the plaintiff and the counsel for both the defendants have handed over proposed issues which are taken on record.

3. The counsels have been heard on the framing of issues.

4. The plaintiff has instituted this suit for recovery of possession of immovable property and for recovery of Rs. 1,95,00,000/- from the defendants on account of damages. It is, inter alia, the case of the plaintiff that the plaintiff was a tenant under the defendants in the said immovable property and the defendants, without recourse to law, have forcibly taken possession of the property from the plaintiff and thereby causing loss of infrastructure and movable property of the plaintiff of the value of Rs. 1,25,00,000/- and loss due to interruption of business of Rs. 70 lacs to the plaintiff.

5. The defendants in their proposed issues have placed the onus of proving dispossession on the plaintiff. However, on enquiry that since the defendants also admit tenancy and there is no document of delivery of possession, why should the onus be on the defendants to prove delivery of possession by the plaintiff, the counsel for the defendants agrees.

6. The counsel for the defendants has also raised an issue of the present suit being barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (in short `CPC'). It is argued that the plaintiff, prior to instituting this suit, had instituted a suit for permanent injunction for restraining the defendants from interfering with the ingress and egress of the plaintiff and its officials and the suit is thus barred by Order II Rule 2 of the CPC. However, on enquiry it is stated that the earlier suit though instituted in this Court, on increase in minimum pecuniary jurisdiction of this Court, has been transferred to the Patiala House Courts.

7. The plea of the plaintiff in the plaint is that the plaintiff, after the ex parte ad interim order in the earlier suit having accessed the premises and having been dispossessed thereafter. If the defendants prove delivery of possession prior thereto, then the plaintiff will be entitled to recovery of possession or damages and the question of Order II Rule 2 of the CPC will also arise. However, if the defendants fail to prove the same, it cannot be said that the present suit is barred by Order II Rule 2 of the CPC. Moreover Supreme Court in Rathnavathi v. Kavita Ganashamdas (2015) 5 SCC 223 and Sucha Singh Sodhi v. Baldev Raj Walia 2018 SCC OnLine SC 373 has held that cause of action for a relief of permanent injunction and for a relief of specific performance is different and Order II Rule 2 of the CPC does apply. On the same ratio, cause of action for present suit and earlier suit are different and Order II Rule 2 of the CPC will apply. For this reason also, the plea of Order II Rule 2 is a substantial plea and it has been held in (i) Ashoka Estate Pvt. Ltd. v. Dewan Chand Builders Pvt. Ltd. 2009 (113) DRJ 193; (ii) P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd. (2013) 205 DLT 302; (iii) Precision Steels v. Reeta Salwan (2013) 205 DLT 695; (iv) Kawal Sachdeva v. Madhu Bala Rana 2013 SCC OnLine Del 1479; and, (v) Adarsh Kumar Puniyani v. Lajwanti Piplani 2015 SCC OnLine Del 14022 that the issues are to be framed on every plea taken in the pleadings and have to be framed only on substantial pleas which in the event of proving have a chance succeeding. It is found that allowing an issue to be framed would waste time and influence the outcome of the suit, such an issue need be framed.

8. The same is the position with respect to the issue proposed on authority of the person instituting the suit on behalf of the plaintiff. Even if it were to be proved that there is a defect in instituting, the same is rectifiable and in the event of plaintiff succeeding, possession and damages will be given to the plaintiff who was admittedly in possession and to anyone else. Thus, for framing of issues on the same,