Rajagopala Ayyangar, J.
1. The defendant is the appellant in this Court and the appeal is directed against an order of remand passed by the learned District Judge of Coimbatore. The question for consideration is as to the proper construction of Order 2, Rule 2, Civil P. C. The facts necessary to appreciate the point raised lie in a very narrow compass.
The defendant, who is the appellant here, executed a usufructuary mortgage in favour of the plaintiff-respondent on 21-9-1944 for a sum of Rs. 1000/-, and under the terms of this document the mortgagee was to continue in possession for a period of nine years and the mortgage was to be discharged by the mortgagee appropriating to his use the income to be derived from the property. But the mortgagor did not admittedly deliver possession of the properly to the mortgagee.
Consequently the mortgagee filed O. S. No. 304 of 1948 for the recovery or the consideration which he paid to the mortgagor. This suit was defended on the ground that a suit for recovery of the consideration was not maintainable, but mat the plaintiff, that is the mortgagee, should institute a suit for recovery of possession. This pica of the defendant was accepted and the suit O. S. No. 304 of 1948 was dismissed.
In accordance with the objection raised to the previous suit by the mortgagor, the mortgagee has filed the present suit for possession of the mortgaged property. Several defences were raised to this action on the merits and along with them a preliminary objection was raised that the suit was not maintainable on the ground that it was barred under Order 2, Rule 2, Civil P. C.
2. This issue about the applicability of Order 2, Rule 2 to the present case was tried as a preliminary issue and the learned Subordinate Judge of Coimbatore dismissed the suit upholding the preliminary point raised by the defendant. The plaintiff thereupon appealed to the District Court and the learned district Judge has reversed this judgment and decree of the learned Subordinate Judge holding that the suit was not barred and has remanded the suit for trial to the Subordinate Court. It is as against this order of remand that the defendant has preferred this appeal to this Court.
3. Notwithstanding that the defendant raised this objection about Order 2, Rule 2, ho placed before the Court no evidence regarding the pleadings in the previous action. The plaint in O. S. No. 304 of 1948, which is the whole basis of this plea or objec-tion under Order 2, Rule 2 was not made available to the Court, but he was content to proceed upon the Statement in the plaint regarding the nature of the previous action and it is on this basis that both the trial Court as well as the District Court on appeal, have proceeded with the matter.
I consider that this was a most unsatisfactory procedure to have adopted. When a party takes a defence like an objection under Order 2, Rule 2 or of res judicata, it is essential that he should place before-the Court the best evidence to support such a plea.
In the case of 'res jndicata' it has been repeatedly held both by the High Court and by the Privy Council that it is essential that the party pleading it should place before the court the judgment in the previous action as well as the pleadings so as to focus the attention of the Court on the pleadings in the previous case, the issues raised as well as the decision rendered on them.
Similarly, in the case of an objection under Order 2, Rule 2, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous action in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject-matter of the previous action. In the absence of these pleadings, the defendant ought not to have been permitted to raise this objection under Order 2, Rule 2
4. But, even on the footing that it was open to the defendant to have raised this issue, I do not consider that there are any merits in this plea. The question that has been mooted is as to whether Order 2, Rule 2, Civil P. C. is applicable to cases where on a single cause of action a party is entitled to more than one relief in the alternative and he chooses to pursue one of these alternative remedies in a previous action and having failed in it desires to agitate his right to the other relief.
Mr. Viswanatha Aiyar learned counsel for the appellant placed strong reliance upon the language of Sub-clause (2) of Order 2, Rule 2, which runs as follows:
'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.'
His contention is that the expression 'claim' in the sub-clause would include every relief which it would be open to a party to claim on any single cause of action whether it be cumulative or in the alternative. But, in my opinion, Sub-clause (2) has to bo read in conjunction with Sub-clause (3), which is really explanatory to what is contained in the first sub-clause. Sub-clause (3) reads as follows:
'A person entitled to more than one relief in respect of the same cause of action may sue for alt or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.' This sub-clause contemplates only cases where a person would be entitled to more than one relief cumulatively, for it sets out cases where a person is entitled to sue for all the reliefs, but sues only for one of them. It does not apply to a case where a party is entitled to only one out of several reliefs and where he cannot have all of them simul taneously.
5. A construction similar to the one which I consider is correct was adopted by a Division Bench of the Bombay High Court in - 'Shripad v. Sid-ram', : AIR1951Bom167 (A). Rajadhyaksha J., delivering the judgment of the Bench, dealing with a case where a party was entitled to alternative reliefs on a single cause of action but lias filed previously a suit only in respect of one of the reliefs, and the bar of Order 2, Rule 2 in respect of the second action says:
'Now looking at the plain wording of Order 2, Rule 2, Sub-rule (3), it seems to us that the proper construction to be placed on that sub-rule is that a person entitled to more than one relief in respect of the same cause of action must sue for all or any of such reliefs; hut if under an instrument under which he claims he can only sue for one of two or more alternative reliefs, then bar under Order 2, Rule 2 does not apply. It is not the mere existence of more than one relief only that brings tlie bar under) Order 2, Rule 2 into operation.
If he is entitled to more than one cumulative relief, but sues for only some of those reliefs and docs not choose to sue for the remaining reliefs, then his right to sue For the latter reliefs is barred under Order 2, Rule 2. If on the other band he is entitled to only one relief out of several alternative reliefs and he sued for one of them, his remedy to sue for the other alternative reliefs is not barred, for he cannot be said to have been entitled' to more than one relief.'
I respectfully agree with this construction of Order 2, Rule 2.
6. In this view, the judgment of the learned.District Judge is correct and the appeal fails andis dismissed with costs. Leave refused.