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Rakha Singh Vs. Amrit Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Regular Second Appeal No. 169 of 1975
Judge
Reported inAIR1984P& H47
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rules 2 and 4
AppellantRakha Singh
RespondentAmrit Lal and ors.
Cases ReferredDhani Ram Bishan Das v. Rattan Das
Excerpt:
.....order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........of the mutation of his estate in favour of the respondents. the appellant instituted the earlier suit claiming himself to be a co-heir on the basis of a compromise deed which was alleged by him to he a will. he could claim whole of the property of hako on the basis of his being an adopted son. however, he did not choose to do so probably for the reason that he had agreed earlier that his adoption would be considered null and void. after taking into consideration all the facts and circumstance. i am of the opinion that the cause of action in the earlier suit and the present one is the same and the plaintiff in the earlier suit omitted to sue in respect of a portion of the claim. therefore, the case squarely falls within the purview of sub-rule (2), r. (2) ibid. in the aforesaid view, 1.....
Judgment:

1. This second appeal has been filed by the plaintiff against the Judgment and decree of the Senior Subordinate Judge, Hoshiarpur, dated 22nd October, 1974.

2. Briefly, the facts are that Hako son of Jhori was the owner of the property in dispute. He, it is alleged, adopted the plaintiff as his son and executed a registered adoption-deed dated 9th August, 1949, in that regard. He died in 1961. On his death, the land was mutated in the names of the defendants who are the sons of his daughter. The plaintiff instituted a suit for declaration that he being the adopted son of Hako was entitled to the property and the mutation had been wrongly sanctioned in the names of the defendants.

3. The suit was contested by the defendants who pleaded that the plaintiff along with his brothers and other collaterals filed a suit for injunction against them on the basis of a will of Hako in 1965 and the same was dismissed on 31st October, 1966, by Mr. T. N. Gupta, Subordinate Judge, Hoshiarpur. An appeal against that judgment was dismissed by the Additional District Judge, Hoshiarpur, on 16th April, 1969. It is alleged that in that suit the plaintiff did not allege that he was the adopted son of Hako. On the other hand, he treated the adoption-deed as cancelled and filed the suit on the basis of an alleged will. In the circumstances, the suit is barred under O. 2, R. 2, Code of Civil Procedure, and by the principle of res judicata.

4. The, trial Court hold that the suit was barred under O. 2, R. 2 of the Code and also by the principle of rea judicata. Consequently, it dismissed the suit. On appeal before the Senior Subordinate Judge, the judgment and decree of the trial Court were affirmed. The plaintiff has come up in second appeal to this Court.

5. Before dealing with the arguments of the learned counsel, it will be proper to give a re'sume' of the earlier litigation between the parties. Hako, after executing the adoption-deed in favour of the plaintiff, alienated some of his property in favour of Jagat Singh and Harnam Singh. his collaterals. The plaintiff filed a usual declaratory suit challenging the alienation. The suit was dismissed and the plaintiff filed an appeal against the judgment of the trial Court. During the pendency of the appeal, a compromise was effected between the parties on 21st May, 1950 according to which it was agreed that the alienation by Hako and the adoption of the plaintiff by him would be considered as null and void. It was further agreed that the property of Hako would be divided in equal shares between the other three branches of Jhori. The plaintiff is the grandson of Jhori and nephew of Hako. After the death of Hako, the plaintiff along with his brothers and other heirs, filed a suit against the defendants on the basis of the compromise-deed dated 21st May, 1950. mentioning it as a will which was dismissed by Mr. T. N. Gupta, Subordinate Judge. Copy of that judgment Is Exhibit D-1. On appeal, the judgment and decree of the trial Court were affirmed by the Additional District Judge, as already stated above.

6. The learned counsel for the appellant has argued that the earlier suit was filed on the basis of a compromise-deed dated 21st May, 1950, by several persons who were entitled to inherit the estate of the deceased and the present suit has been filed by the plaintiff on the basis of his adoption. He submits that the causes of action in both the cases are different and, therefore, the present suit Is not barred by the. provisions of O. 2, R. 2 of the Code. In support of his contention, he has referred to Sadhu Singh v. Pritam Singh, AIR 1976 Punj and Har 38 (FB), Balbir Singh v. Atma Ram Srivastava, AIR 1977 All 211 (FB), Union of India v. S. Kesar Singh. AIR 1978 J and K 102 and Mohinder Singh Jubbal v. Grindlays Bank Ltd., AIR 1982 Punj and Har 295.

7. I have heard the learned counsel at a considerable length but regret my inability to accept the contention. Before dealing with the contention, it will be advantageous to read O. 2, R. 2 of the Code. which is as follows:--

2. Suit to include the whole claim.--(1). Every suit shall include the whole of the claim which the plaintiff is entitled 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) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquished any. portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.--A person entitled to more cause of action may sue for all or any than one relief in respect of the same of such reliefs; but if he omits, except r with the leave of the Court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive cl aims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'

It is evident from the rule that it precludes splitting up of a cause of action. It is based on the principle that a defendant should not be harassed twice on the same cause of action. The rule provides that if the plaintiff omits any portion of the claim which he is entitled to make or omits on e of the reliefs. in case he is entitled to more than one relief, in respect of a cause of action, he shall not afterwards be entitled to sue for a part of the claim or the relief so omitted. The words 'cause of action' have not been defined anywhere in the Code. The expression means all the facts which are necessary to be proved by the plaintiff in order to obtain a decree in his favour. in order to find out whether the cause of faction in two suits is the same or not. it is not only the facts which would entitle the plaintiff to a relief, should he the same but also the infringement of his rights at the hands of the defendants should have arisen in substance out of the same transaction. While determining the cause of action in two suits. the substance rather than the form should be taken into consideration. Rule 2, ibid was interpreted by the Supreme Court in Sidramappa v. Rajashetty, AIR 1970 SC 1059, wherein it was observed as follows (at p, 1060):--

'....... The requirement of O. 2, R. 2. is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'...... Cause of action is a cause of action which, gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which him limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.'

8. Adverting to the facts of the present case, it is clear that, the cause of action arose to the plaintiff on account of death of Hako and attestation of the mutation of his estate in favour of the respondents. The appellant instituted the earlier suit claiming himself to be a co-heir on the basis of a compromise deed which was alleged by him to he a will. He could claim whole of the property of Hako on the basis of his being an adopted son. However, he did not choose to do so probably for the reason that he had agreed earlier that his adoption would be considered null and void. After taking into consideration all the facts and circumstance. I am of the opinion that the cause of action in the earlier suit and the present one is the same and the plaintiff in the earlier suit omitted to sue in respect of a portion of the claim. Therefore, the case squarely falls within the purview of sub-rule (2), R. (2) ibid. In the aforesaid view, 1 am fortified by the observations of Rangoon High Court in Ma Pwa Shin v. U Po Sin, AIR 1937 Rangoon 324. In that case, the plaintiff, on the death of her grand-father was entitled to the estate as the sole heir. Being wrongly advised, she filed a suit for partition of half the property basing the claim as co-heir. The suit was dismissed on some technical ground. Subsequently, she brought a suit for posession of the entire property. It was held that sub-rule (2), R. 2, applied and she could claim even the portion of the property which she omitted in the first suit. The following observations as extracted in the head-note may be read with advantage:--

'The 'cause of action' consists of the facts upon which the plaintiff is entitled to base a 'claim' in a suit with reference to the subject matter of the dispute. The claim he actually does make cannot he material because what the rule makes the deciding factor is the claim which he is 'entitled' to make. It is most important to appreciate that it is the claim which he is 'entitled to make' and not the claim he makes that is made the criterion under O. 2, R. 2, Civil P. C. The application of O. 2, R,. 2 is not made test depend upon the succeed or failure of the first suit. It depends upon 'omission to sue' and that omission may occur whenever a suit is started, be it successful or not, in which the claim subsequently sought to be sued for again might have been raised in respect of the same cause of action. but was not.'

The cases referred 'to by the learned counsel for the appellant are distinguishable. In Sadhu Sadhu Singh's case (AIR 1976 Punj & Har 38) (FB) (supra), the earlier suit was filed for possession and the latter for mesne profits. The Full Bench held that the suit for mesne profits was not barred under O. 2, R. 2 read with R. 4. It may he highlighted that in that case, R. 2 was interpreted in the light of R. 4. In Balbir Singh's case (AIR 1977 All 211) (FB) (supra), the landlord instituted a suit for arrears of rent and mesne profits. While filing the suit. leave of the Court was obtained to file the suit for ejectment subsequently, which was granted. After filing the first suit. the second suit for ejectment was filed. It was observed that the second suit was not barred by the provisions of O 2, R. 2, as the plaintiff had obtained leave of the Court under O. 2, R. 2 (3) of the Code for filing a suit for ejectment subsequently. The facts in Kesar Singh's case (AIR 1978 J & K 102) (supra) are also different. Therein it was observed that a subsequent quit for damages arising out of a breach of contract could not be said to he barred under O. 2, R. 2. Civil P. C Similarly, the facts of the other two cases referred to by the learned counsel are different. In my view, the ratio in all these cases in not applicable to the present case. consequently, I reject the contention of Mr. Ahluwalia.

9. He has next contended that the principle of constructive res judicata is not applicable to the present case and the findings of the courts below to the contrary are erroneous. I do not find any force in this submission too. section 11 Civil P. C. relates to the principle of res judicata relevant part of which reads as follows:--

'11. Res judicata

No Court shall any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.--

'Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'

From a reading of the section. it is evident that a decision of a Court is final not only if it has been decided in an earlier suit between the same parties but also if the matter might or ought to have been made ground of defence or attack in the former suit. The principle underlying the Explanation is that if a party had an opportunity to raise a matter in a suit that should be considered to have been raised and decided, The object of the principle is to cut short litigation between the parties so that a person may not be vexed again and again with regard to the same matter. The facts of the present case have been given in detail above. The plaintiff could take the pleas, which have been taken by him now, in the earlier suit. Therefore, the principle of constructive m judicata is applicable.

10. In the above view, I am fortified by the observations of this Court in Dhani Ram Bishan Das v. Rattan Das AIR 1961 Punj 563. in that case, the plaintiffs claimed ownership of certain land on the ground of inheritance. That suit having been dismisses, they filed another suit claiming ownership of the same property on the ground of their right claimed in both the suits was the same although on different grounds and as such the second suit by the plaintiffs was barred under the principle of res judicata. I am in respectful agreement with the above observations.

11. for the aforesaid reasons, I do not find any merit in this appeal and dismiss the same with costs.

12. Appeal dismissed.


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