A suit for damages for cutting and removing trees is not barred under Order 2 Rule 2, C.P.C., if the claim for damages was not included in an earlier suit for declaration of title and injunction, provided that the two suits are not based on the same cause of action.

1. Plaintiff in O.S.No.171 of 1985, who lost in both the Courts below have come upto with this second appeal, challenging the correctness of the judgments of both the Courts.

.2. Between the same parties, there was another suit as O.S.No. 212 of 1982, for declaration of title and consequential injunction. In that property, there were few trees which were cut and removed by the defendant. That suit was decreed and it was confirmed in appeal. By the time of institution of this suit, it was said that a second appeal is pending before this Court. Even at the time of filing the earlier suit, some of the trees were cut and removed by the defendants. Damages was not claimed, and plaintiff in that case reserved his right to file a suit separately, claiming the same.

3. After decree, the present suit was filed to recover the damages to the extent of Rs. 6,000. Defendant admitted that he cut and removed the trees. But the only point he urged before Court below was that the suit is barred under Or. 2, R.2, C.P.C. According to the defendant, the claim for damages is also based on the same cause of action, and the second suit for the said purpose is not maintainable. The claim for damages also ought to have been taken in the earlier suit, and plaintiffs having failed to do so, they are not entitled to file the present suit and recover the amount. Regarding the quantum, defendant contended that Rs. 6,000 claim by the plaintiffs is excessive or exaggerated. He has sold the timber only for Rs. 750.

4. Both the Courts below have held that the suit is barred under Or.2, R.2, C.P.C. and dismissed the suit. But for the technical plea, plaintiffs are entitled to a decree.

.5. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:-

.“ Whether the suit for damages for the recovery of the value of the trees cut and removed by the defendant would be hit under Order II Rule 2 of the Code of Civil Procedure, when the claim for damages was not included in the earlier suit, for declaration of title and for permanent injunction?”

6. According to me, the procedure adopted by the Courts below in accepting the contention of the defendant that the suit is barred under Order 2, Rule 2, C.P.C. is not sustainable.

7. Courts below failed to note that the plaintiffs are entitled to enforce their right through Court, and if that suit is to be dismissed on a technical ground, the technicality will have to be proved by the best possible evidence.

8. The mode of proof regarding contention in respect of Or.2, R.2, C.P.C. is settled by the Supreme Court in the decision reported in Gurbux Singh v. Bhooralal , AIR 1964 S.C. 1810 wherein their Lordships said that the mode of proof regarding the plea of Or.2, R.2, C.P.C. is the production of the pleadings itself in the earlier case, and not by any other mode, the relevant portion of the decision reads thus:-

“In order that a plea of a bar under O.2 R.2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit ha d been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for 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 the application of the bar. No doubt, a relief which is sought in a plaint would ordinarily be traceable to a particular cause of action but this might, by no means, be the