TMI Blog2017 (2) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... me is not distinguishable. It is mandatory that to sustain a plea under Order 2 Rule 2 of the Code of Civil Procedure, the Defendant is obliged under law to prove the plaint and the proof has to be as per the law of evidence. Matter remanded to the High Court for proper appreciation of the material on record and to deal with the contentions raised by the Appellants therein in accordance with law within the parameters of the revisional jurisdiction - appeal allowed by way of remand. - Civil Appeal Nos. 3056-3057 of 2017 (Arising out of S.L.P. (C) Nos. 28075-28076 of 2014) - - - Dated:- 21-2-2017 - Dipak Misra, A.M. Khanwilkar And Mohan M. Shantanagoudar, JJ. For the Appellant : Pyoli, Somesh Chandra Jha and Ejaz M. Qureshi, Advs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was assailed in Civil Appeal No. 61 of 2004. The appeal arising out of the first suit and the appeal arising out of the second suit were taken up together and were dismissed by the common judgment dated 24th March, 2006. 6. The dissatisfaction of the non-success compelled the Appellant to file two civil revision applications, namely, Civil Revision Application Nos. 172 and 173 of 2006. The High Court by the common order dated 1st April, 2014, dismissed both the civil revision applications. 7. It is submitted by Ms. Pyoli, learned Counsel appearing for the Appellant that all the courts have fallen into error by applying the principle under Order 2 Rule 2 of the Code of Civil Procedure when the plaint in the earlier suit was not proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily 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 Code of Civil Procedure 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 Code of Civil Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit and proving it as per law is imperative to sustain the plea of Order 2 Rule 2 Code of Civil Procedure. Unless that is done, the stand would not be entertainable. 12. In this regard, we may refer to the Full Bench decision of the High Court of Patna in Jichhu Ram and Ors. v. Pearey Pasi and Anr. AIR 1967 Pat 423, wherein the Full Bench was called upon to appreciate the ratio laid down in the case of Gurbux Singh (supra). In that context, the Full Bench has held thus: 7. These observations are fatal to the Defendants' contention in this litigation. Though the bar of Order 2, Rule 2, was one of the issues expressly raised before the original court (issue No. 5), the Defendants did not prove the plaint in the previous rent suit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a in Jichhu Ram (supra). 14. In view of the aforesaid, we are not able to sustain the conclusion arrived at by the High Court on the basis that the suit instituted by the Plaintiff-Appellant was hit by Order 2 Rule 2 Code of Civil Procedure. However, the controversy does not end there. The trial court and the appellate court have adverted to the merits of the case, that is, whether the tenant had constructed any permanent structure without the consent of the landlord. It is manifest that the High Court has not adverted to the same. 15. In view of the aforesaid, we are inclined to remit the matter to the High Court for proper appreciation of the material on record and to deal with the contentions raised by the Appellants therein in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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