TMI Blog2014 (10) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... onally relinquished any portion of his claim for the reason that the suit was for only injunction because of the threat from the side of the defendant to dispossess him from the suit property. It was only after the defendant in his suit for injunction disclosed the transfer of the suit property by the Housing Board to the defendant and thereafter denial by the defendant in response to the legal notice by the plaintiff, the cause of action arose for filing the suit for specific performance. As noticed above, the High Court, although formulated various points for consideration and decision, as quoted hereinabove, but has not considered other points in its right perspective. The High Court, being the final court of facts in a first appeal, is required to decide all the points formulated by it. In view of the same, the matter needs to be remanded back to the High Court to consider and decide other points formulated by it. Civil Appeal are allowed in part and the decision arrived at by the High Court against point no.4 holding that the suit was barred under Order 2 Rule 2 of the CPC is set aside. The matter is remanded back to the High Court to decide the appeals by recording its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter receiving the balance sale consideration. Time for performance of the agreement was tentatively fixed as four months and the same was extended until the defendant got the sale deed executed from the Housing Board. The parties agreed that the plaintiff shall prepare a plan for construction of a building in the said property and the defendant will sign the building plan and get the plan approved and the plaintiff thereafter shall construct the building in the suit housing plot at his own expenses. 3. Pursuant to the sale agreement, the plaintiff took possession of the suit property and completed the construction. According to the plaintiff, the defendant had been representing to the plaintiff that he has not yet got the sale deed executed in his favour from the Housing Board but attempted to forcibly take possession of the building constructed on the suit property by the plaintiff. So the plaintiff filed a suit being O.S. No.445/1985 on 11.9.1985 for permanent injunction restraining the defendant herein from taking forcible possession of the building constructed in the suit property. Pending the aforesaid suit, few days after, the plaintiff on 25.4.1986 filed aforesaid suit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suits filed by the appellant are identical, arose from the same transaction and that is why the trial court also had a common trial and decided the case by a common judgment. The plaintiff has not come forward with the suit in O.S. 252/1986 on the basis of the fact that the sale deed with respect to the suit property was obtained only on 18.2.1985 by the defendant from the Housing Board and the defendant failed to execute the sale deed in favour of the plaintiff pursuant to Ex.A1 agreement and so the prayer sought for in the said suit could have been sought for even in the Original Suit No.445/1985 as the pleading set out in the plaint in O.S. 252/1986 was available even on the date when O.S. No.445/1985 was filed. Since the plaintiff omitted to seek such a relief and did not obtain the leave of the Court to file the subsequent suit, it amounts to relinquishment of his rights which is sought for in O.S. 252/1986 and he cannot sustain the subsequent suit in O.S. 252/1986 for the relief sought for in that suit in view of Order 2, Rule 2 of the Code. 8. The High Court formulated as many as following six points for consideration to decide the appeals: (1) Whether Ex.A1 is enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Tamil Nadu Housing Board is a material fact to enforce the right and got the sale deed by the respondent/plaintiff arose only after getting the sale deed by the appellant/defendant from the Tamil Nadu Housing Board as contemplated under Ex.A1. The respondent/plaintiff suppressed the said material fact. Hence, even on that ground the suit in O.S. 252/1986 has to be rejected holding that the respondent/plaintiff is not entitled to equitable relief of specific performance of the Agreement in view of the above said fact. 15. In view of the findings given above with respect to point Nos.4 and 5, we are; not inclined to deal with the other points. 10. By impugned order dated 30.4.2004, the High Court allowed the appeals preferred by the defendant based on Order 2 Rule 2 with a direction to the defendant to pay the cost of construction (Rs.8,00,000/-) to the plaintiff and on such deposit, the plaintiff would hand over the suit property with building to the defendant and after handing over the same, he can withdraw the aforesaid amount along with the money already deposited, if any. Hence, present cross appeals by both sides. The High Court further held that no other points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in anticipation of the transfer of the property by the Housing Board in favour of the defendant. Lastly, it was contended that the provision of Order 2 Rule 2, CPC does not apply where the two suits are filed on different cause of action and the counsel relied upon the decision of this Court in the cases of Gurbux Singh vs. Bhooralal, (1964) 7 SCR 831; Kewal Singh vs. Lajwanti, (1980) 1 SCC 290 and in the case of Lakshmi alias Bhagyalakshmi and another vs. E. Jayaram (dead) by Lr., (2013) 9 SCC 311. 14. Mr. R. Balasubramanian, learned senior counsel appearing for the respondent-defendant, firstly submitted that if the allegations made in the plaint filed by the plaintiff-appellant are read together it would be clear that the plaintiff had knowledge about the sale deed executed by the Housing Board in favour of the defendant. It was only because of that the plaintiff in the plaint categorically stated that he reserves his right to file a suit for specific performance. According to the learned counsel, the causes of action in both the suits filed by the plaintiff are identical, and therefore, the subsequent suit for specific performance is not maintainable being barred under Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the defendant in the earlier suit took a defence that the sale agreement was allegedly given up or dropped by the plaintiff. The cause of action, as pleaded by the plaintiff in the subsequent suit, arose when defendant-respondent disclosed the transfer made by Housing Board in his favour and finally when the defendant was exhibiting an intention of not performing his part of the sale agreement and in reply to the lawyer s notice the defendant made a false allegation and denied to execute the sale deed as per the agreement. 18. A perusal of the pleadings in the two suits and the cause of action mentioned therein would show that the cause of action and reliefs sought for are quite distinct and are not same. 19. Indisputably, cause of action consists of a bundle of facts which will be necessary for the plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2 Rule 2 CPC will not apply. 20. The provision has been well discussed by the Privy Council in the case of Mohd. Khalil Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Order 2 Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished. 6. In the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, the Privy Council observed as follows: That the right and its infringement, and not the ground or origin of the right and its infringement, constitute the cause of action, but the cause of action for the Oudh suit (8 of 1928) so far as the Mahbub brothers are concerned was only a denial of title by them as that suit was mainly against Abadi Begam for possession of the Oudh property; whilst in the present suit the cause of action was wrongful possession by the Mahbub brothers of the Shahjahanpur property, and that the two causes of action were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint. The requirement of Order II Rule 2, Code of Civil Procedure 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 . It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. 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 he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. - see Mohd. Hqfiz v. Mohd. Zakaria AIR(1922) PC 23. 8. As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit. In that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff could not have asked for arrears of salary under the law as it then stood. The plaintiff did not know of or possess any such right. The plaintiff, therefore, cannot be said to have omitted to sue for any right. 26. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff did not seek the said relief nor was leave granted by the Madras High Court. In such circumstances, according to the defendant-petitioner, the suits filed by the plaintiff for specific performance i.e. OSs Nos. 202 and 203 were barred under the provisions of Order 2 Rule 2(3) CPC. xxxxxxxx 13. A reading of the plaints filed in CSs Nos. 831 and 833 of 2005 show clear averments to the effect that after execution of the agreements of sale dated 27-7-2005 the plaintiff received a letter dated 1-8-2005 from the defendant conveying the information that the Central Excise Department was contemplating issuance of a notice restraining alienation of the property. The advance amounts paid by the plaintiff to the defendant by cheques were also returned. According to the plaintiff it was surprised by the aforesaid stand of the defendant who had earlier represented that it had clear and marketable title to the property. In Para 5 of the plaint, it is stated that the encumbrance certificate dated 22-8-2005 made available to the plaintiff did not inspire [pic]confidence of the plaintiff as the same contained an entry dated 1-10-2004. The plaintiff, therefore, seriously doubted the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another case is not at all decisive. 31. In the case of Bharat Petroleum Corpn. Ltd. and Another vs. N.R. Vairamani and another, (2004) 8 SCC 579 at page 584, this Court observed :- 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear [pic]to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 (AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D) The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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