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Krishnaji Ramchandra Vs. Raghunath Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 601 and 602 of 1950
Judge
Reported inAIR1954Bom125; (1953)55BOMLR741; ILR1954Bom187
ActsCode of Civil Procedure (CPC), 1908 - Sections 35 - Order 2, Rule 2, 2(1), 2(2) and 2(3) - Order 4 - Order 11, Rule 2 - Order 45, Rule 4; Evidence Act, 1872 - Sections 35
AppellantKrishnaji Ramchandra
RespondentRaghunath Shankar and anr.
Appellant AdvocateY.N. Chapekar and ;G.R. Madbhavi, Advs.
Respondent AdvocateM.G. Chitale, Adv.
Excerpt:
.....respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - 79 and 117 were filed on the same day and it may well be that those suits were filed simultaneously, although the two suits came to be numbered subsequently as 79 and 117. 11. now, mr. but that, i think, cannot clearly be the case in view of the judgment of their lordships of the privy council in -mahomed khalil khan v. that is precisely the view taken by this court in -ganesh..........the date of the institution of the suit. if that is so, then it is clear that when the plaintiff filed suit no. 633 of 1942, he did not include in that suit the whole of his claim in respect of the cause of action and, therefore, the plaintiff must be taken to have invited the operation of order 2, rule 2(2), because the plaintiff must be taken to have either omitted to sue or intentionally relinquished a portion of his claim. whether it is the result of an omission or the result of a relinquishment, it makes no difference--not any difference even when the plaintiff subsequently files a suit and that is the bar imposed by order 2. rule 2(2). it was suggested that in this case the persons in possession were different tenants and, therefore, the plaintiff was required to bring separate.....
Judgment:

1. These two appeals arise respectively from suits Nos. 19 and 117 of 1943 filed by the plaintiff appellant to recover from defendants l and 2 and their tenants possession of the suit property. The facts leading up to the suits are shortly these.

2. The property in dispute in suit No. 79. is survey No. 271 and a vacant house-site. The property in dispute in suit No. 117 consists of four fields. The fields bear survey Nos. 83/2 & 84 of Kuroli, survey No. 844/2 of Mahim and survey No. 17 of Bhandi-Shegaon. These properties originally belonged to the adoptive father of the plaintiff. There was a third suit (No. 633 of 1942) and the property in dispute in that suit consisted of two fields bearing survey Nos. 270 and 295. The plaintiff's case was that these properties belonged to Ramchandra who adopted the plaintiff in 1930 and died on 24-1-1931. It was alleged by the plaintiff that he obtained possession of these lands as the adopted sort of Ramchandra, but in October 1936 Shankar, the? deceased father of defendants 1 and 2, got the lands entered in his name in the record of rights, and relying upon the entries in the record of rights he dispossessed the plaintiff. As the plaintiff was dispossessed illegally, he filed the three suits for possession against Shankar's sons as defendants 1 and 2 and against the tenants in possession of the suit property.

3. Suit No. 633 was filed on 13-7-1942; suit No. 79 was filed on 25-1-1943, and suit No. 117 was filed also on 25-1-1943.

4. The principal defence in suit No. 633 was that the plaintiff was not entitled to those properties because the properties came to Shankar, the father, who was the nearest heir of Ramchandra in the watan family.

5. Suit No. 633 has been decreed and it is-necessary to refer to that suit save for the purpose of considering the bar under O. 2, B. 2, Civil P. C.

6. In suits Nos. 79 and 117 defendants 1 and 2 raised the plea, among others, that the plaintiff's suits were barred under Order 2, Rule 2, Civil P. C. There was, it appears, an 'ex parte' decree. Appeals were taken to the District Court and the learned Assistant Judge reversed the decrees and remanded the suits to the trial Court for disposal on the merits.

7. Upon the two suits going back to the trial Court, the trial Court then heard the two suits and dismissed them, save in the case of suit No. 79 with respect to the house-site, holding that suits Nos. 79 and 117 were barred under Order 2, Rule 2.

8. Prom these decrees appeals were preferred in the District Court and the learned Assistant Judge affirmed the view of the learned trial Judge, dismissed the plaintiff's appeals and confirmed the decrees of the trial Court. From the appellate decrees the plaintiff in suit No. 79 has preferred S. A. No. 601 and the plaintiff in suit No 117 has preferred S. A. No. 602. Both these appeals involve a common question of law and it will be convenient to dispose, as was done in the lower Court, of these two appeals also by a common judgment.

9. Mr. G. R. Madbhavi who appears for the plaintiff in each case contends that the plaintiff's suits are not barred under Order 2, Rule 2. Order 2, Rule 2, so fur as material, provides as follows:

'1. Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

2. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.''

Mr. Madbhavi says that inasmuch as suits Nos. 633, 79 and 117 were heard together, the bar imposed by Order 11, Rule. 2, does not apply. It is not in dispute that suit No. 633 was filed on 13-7-1942, while suits Nos. 79 and 117 were filed on 25-1-1943. It is clear that these two suits were not, therefore, filed together, although suits Nos. 79 and 117 were filed on the same day. The plaintiff in each case was the same. Defendants 1 and 2 in each case were also the same, but defendants, other than defendants 1 and 2, were different and those defendants were the tenants of defendants 1 and 2. In considering the question of the bar imposed by Order 2, Rule 2, it is necessary to consider what the plaintiff's claim was in respect of the cause of action. The plaintiff's case was that as the adopted son, he was entitled to possession of the properties in all the three suits. His title was, therefore, based upon his adoption. The defence was that defendants 1 and 2 were entitled to remain in possession as the nearest heirs of the plaintiffs father Ramchandra. But it is clear that the bar of Order 2, Rule 2, is to be looked to, from the point of view of the plaintiff's claim and not from the point of view of the defence.

10. Although suit No. 633 and suits Nos. 79 and 117 were filed on two different dates, a 'purshis' was filed in each suit asking that all the three suits should be heard together. The 'purshis' (exh. 80) in .suit No. 633 was filed on 1-7-1943. The 'purshis' in suit No. 79, which is exh. 17, was filed on 18-12-1944 and the 'purshis' in suit No. 117, which is exh. 23, was also filed on 18-12-1944. It is clear, therefore, that by common consent the three suits were to be heard together. With regard to the issues, the issues in all the three suits were framed on 12-2-1944. In suit No. 79 issue No. 8 ran as follows: 'Is the suit barred under O. 2, Rule 2? and a similar issue was framed in suit No. 117 which was issue No. 8 and it ran as follows: 'Is the suit barred by Order 2, Rule 2?' It is clear, therefore, that the issues in all the three suits were framed on the same day. The 'purshis', exh. 80 in suit No. 633 which was filed on behalf of the plaintiff and the defendants ran as follows:

'The aforesaid suit has been fixed today for the framing of issues. There are two other suits between the plaintiff and the defendants viz., suit No. 79 of 1943 and suit No. 117 of 1943 and the latter suits have been fixed for the filing of the written statement. All the aforesaid three suits are of the same nature and are between the same parties. So the issues in all the three suits should be framed at one and the same time.'

The 'Purshis', Exh. 17, signed by the pleader for the plaintiff and the pleader for the defendants stated that

'....suit No. 79 and suit No. 633 of 1942 and suit No. 117 of 1943 have been pending, between the same parties in this Court. The contentions of the parties in the three suits are the same and evidence is to be given in suit No. 633 of 1942 and the same is to be read in suit No. 79. All the three suits are to be heard together. Therefore, with suit No. 633 this suit should be fixed.'

The 'purshis', exh. 23, in suit No. 117 which was signed by the pleader for the plaintiff and the pleader for the defendants is in similar language. The question then arises whether the Courts below were right in saying that suits Nos. 79 and 117 are barred under Order 2, Rule 2. It has not been contended by Mr. Madbhavi that the cause of action in all the three suits is not the same. The plaintiff claimed his rights to the properties in the three suits by reason of his adoption and the plaintiff stated that he was entitled to possession of the properties as the adopted son of Ram-chandra because the defendants had no right to possession and also the defendants' tenants had no right to possession. But Mr. Madbhavi's principal argument is that in this case all the three suits were heard together and, therefore, the bar of Order 2, Rule 2, will not apply. A reference to the record in the three suits shows that there was no order of consolidation by the Court. The 'roznama' in suit No. 79 states that suits Nos. 79 and 633 were consolidated, but, as I said, there is no actual-order of consolidation and none has been pointed out to me. The entry in the 'roznama', therefore, cannot be said to amount to a consolidation and the entry in the 'roznama' cannot be said to be a judicial order. A 'roznama' merely records as to what happened on the day on which the suit was fixed for hearing. It is to be noted that the issues were framed in all the three suits on the same day. If there was an order for consolidation, then it is hardly likely that issues based upon Order 2, Rule 2. would at all arise in suits Nos. 79 and 117. If the suits were consolidated, it means that there was but one suit, and where there is one suit, the bar of Order 2, Rule 2, will not arise. The fact that issues under Order 2, Rule 2, were framed in suits Nos. 79 and 117 shows that there was no order of consolidation. It is not suggested that there was ever any order passed by the Court by way of an amendment, i.e., bringing the claims in suits Nos. 79 and 117 in the suit No. 633. The result, therefore, was that for the sake of convenience the three suits were heard together and evidence was recorded in suit No. 633. I have no doubt that it was easy for the plaintiff either to ask for an amendment bringing the claims in suits Nos. 79 and 117 in suit No. 633 or to apply to the Court asking that the three suits should be consolidated. There was neither any amendment made nor any order of consolidation. If so, the result is that the suits must be taken to be filed respectively on 13-7-1942, 25-1-1943, and 25-1-1943. But we are here concerned with the principal suit No. 633. It cannot be suggested that suits Nos. 79 and 117 were filed simultaneously with suit No. 633, because the interval between the institution of the three suits is an interval of 6-7 months. It is true that suits Nos. 79 and 117 were filed on the same day and it may well be that those suits were filed simultaneously, although the two suits came to be numbered subsequently as 79 and 117.

11. Now, Mr. Madbhavi argues that what we have to look to for the purpose of determining the bar of Order 2, Rule 2, is the point of time when the decree is passed and not the point of time when the suit is instituted. In this connection the language of Order 2, Rule 2(2), may be contrasted with the language of Order 2, Rule 2(3). Order 2, Rule 2(2), speaks of an omission to sue or intentionally relinquishing a portion of the claim, while Order 2, Rule 2(3), speaks of a person being entitled to more than one relief in respect of the cause of action, and while considering Order 2, Rule 2(3), one has to consider the question of the leave of the Court, No question of the leave of the Court arises under Order 2, Rule 2(2). In a case where the leave of the Court is to be sought, it may be possible to argue that the point of time is not the point of time of the institution of the suit, but the point of time is the point of time of the passing of the decree. But here again it is unnecessary to express any final opinion upon the question because that question does not strictly arise. Confining, therefore, my observations to Order 2, B. 2(2), the question for consideration is whether, as Mr. Madbhavi contends, the point of time is not the date of the filing of the suit but the date of the passing of the decree. But if one closely looks at the language of Order 2. Rule 2(2), it is clear that the point of time under Order 2, Rule 2(2), is the point of time of the institution of the suit. This is clear from-the language of the rule itself, because some meaning has to be given to the expression 'afterwards' occurring in Order 2, Rule 2(2), and the expression 'afterwards' can be construed only with reference to what precedes it, viz., omits to sue'. When, therefore, the two expressions 'omits to sue' and 'afterwards' are considered together, it must follow, I think, that the point of time is not the date of the passing of the decree but the date of the institution of the suit. If that is so, then it is clear that when the plaintiff filed suit No. 633 of 1942, he did not include in that suit the whole of his claim in respect of the cause of action and, therefore, the plaintiff must be taken to have invited the operation of Order 2, Rule 2(2), because the plaintiff must be taken to have either omitted to sue or intentionally relinquished a portion of his claim. Whether it is the result of an omission or the result of a relinquishment, it makes no difference--not any difference even when the plaintiff subsequently files a suit and that is the bar imposed by Order 2. Rule 2(2). It was suggested that in this case the persons in possession were different tenants and, therefore, the plaintiff was required to bring separate suits. But that, I think, cannot clearly be the case in view of the judgment of their Lordships of the Privy Council in -- 'Mahomed Khalil Khan v. Mahbub Ali Mian' . The possession of the tenants was under defendants 1 and 2 and if defendants 1 and 2 had no right to possession, it must follow that the tenants under defendants 1 and 2 had equally no right to possession. Reliance has been placed upon a decision of this Court reported in -- 'Ganesh Ramchandra v. Gopal Lakshman', : AIR1943Bom12 (B). But that was a case where two suits were filed simultaneously and it is difficult 10 say in a case where two suits are filed simultaneously which of the two suits was filed first. According to Order 4, every suit shall be instituted by presenting a plaint and the plaint has to be presented either to the Court or to the clerk on behalf of the Court. It is difficult to say afterwards in such circumstances when two suits are filed simultaneously which suit was instituted first. That is precisely the view taken by this Court in --'Ganesh Ramchandra's case, (B)'. That case is, in my opinion, therefore, distinguishable and cannot govern this case. Reliance was then placed upon a Calcutta decision reported in -- 'Upendra Narain Roy v. Janaki Nath Roy', AIR 1919 Cal 904 (C). But that case can again be distinguished because in that case there was actually a subsequent amendment allowed. This will be clear from a reference to page 906 of the report. Mr. Madbhavi also relied upon the case reported in -- 'Ramachandra Vithal v. Gajanan Narayan', AIR 1920 Bom 90 (D). That case also shows that the causes of action in the two suits were not the same, that different properties were involved in the two actions and different defendants were in possession. It is clear, however, that the circumstance of the properties being different or different defendants being in possession may or may not mike any difference. What is more is that for the operation of Order 2, Rule 2, it must be in respect of the cause of action, which means that it must be the particular cause of action. It is true that in Order 2, Rule 2(1), the words used are 'the cause of action', whereas the words used in Order 2, Rule 2(3), are 'the same cause of action'. Even so, 'the cause of action' as used in Order 2, Rule 2(1), must mean 'the particular cause of action'. Where there are different causes of. action, Order 2, Rule 2, will not apply; where the causes of action are the same, the bar imposed by Order 2, Rule 2, may apply.

12. For all these reasons the Courts below were, in my opinion, right in holding that the plaintiff's suits Nos. 70 and 117 of 1943 were barred. It follows that the decrees appealed from will be confirmed and these appeals will be dismissed.

13. As reagrds the costs of this appeal, there was, I think, some misapprehension in the mind of the pleader appearing for the plaintiff, it was probably thought that the moment the three suits are ordered to be heard together, there would be no question of Order 2, Rule 2, applying. It is noteworthy that the issues in the three suits were framed on the same day; the 'purshis' were filed and evidence was agreed to be given in the main suit No. 633. It was certainly open to the plaintiff either to have his plaint in suit No. 633 amended or to apply for an order of consolidation. But the importance of these steps was not realised and the result was that the plaintiff has been made to suffer for what appears to be evidently a technicality. In this connection it is pertinent to recall the observations of their Lordships of the Privy Council in 'Mohammod Khalil Khan's case. (A)', cited above. At page 87 this is what they say, after quoting an earlier judgment in the case of -- 'Kishan Narain v. Pala Mall', AIR 1922 PC 412 (E), (p. 414):

'..... it is the duty of the Courts to interpret and carry into effect those rules uninfluenced by the consideration of the individual loss that may be occasioned by disobedience of the provisions.'

If this test is applied, and remembering that the defendants took the plea of Order 2, Rule 2, at the earliest possible opportunity, it seems to me that there is no good reason as to why the plaintiff should be treated with any sympathy. The plaintiff had, I think, sufficient opportunity to correct what was initially a mistake, but the mistake was persisted in. If that is so, I do not see any valid ground for depriving the defendants of the costs of these two appeals.

14. The result is that S. A. No. 601 of 1950 fails and the same will be dismissed with costs, and for the same reasons S. A. No. 602 of 1950 also fails and that too will be dismissed with costs.

15. Appeals dismissed.


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