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TMI Blog2017 (2) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... onstructing any permanent structure on the tenanted premises and further from subletting the same or transfer it in any manner. The learned trial Judge vide judgment and decree dated 12th March, 1999, partially decreed the suit restraining the Respondents from subletting or transferring the suit premises. 3. Being grieved by the aforesaid judgment, the Appellant preferred Civil Appeal No. 79 of 1999. It is necessary to state here that the Appellant also initiated an action for eviction forming the subject matter of HRP Suit No. 1804 of 1998 before the Small Causes Court, Ahmedabad, on the ground that the Respondent-original tenant had erected permanent structure on the premises without the consent of the landlord. It is apt to note here th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spirit of Order 2 Rule 2 of the Code of Civil Procedure by taking into consideration the findings recorded in the earlier judgment and, therefore, this Court should not entertain any attack on the judgment on the said score. As far as the delineation on the merits is concerned, it is urged by Mr. Agarwal that the analysis made by the High Court on that score, especially in paragraphs 10 and 10.1, are absolutely unimpeachable. 9. To appreciate the submissions raised at the Bar, we have carefully perused the common order passed by the High Court in both the civil revision applications. As we find that the High Court has adverted at length to the facet of Order 2 Rule 2. On a scrutiny of the entire judgment, we do not find that there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Code of Civil Procedure cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the Plaintiff had then alleged to support the right to the relief that he claimed. Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suits was identical. This approach was condemned by their Lordships of the Supreme Court in the aforesaid judgment with these words: As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. Their Lordships condemned the action of the learned trial Judge in that court in inferring "what the cause of action should have been from a reference to the previous suit contained in the plaint as a matter of deduction." I must, therefore, reject this contention of Mr. Chatterji. 13. Though Mr. Tanmay Agarwal, learned Counsel for the Respondents has made enormous effort to distinguish the decision in Gurbux Singh (supra), in our considered opinion, the same is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for amendment shall not be entertained to bring the plaint on record by way of additional evidence by taking recourse to Order XLI Rule 27 of the Code of Civil Procedure. In that event, the High Court shall proceed only to deal with the merits of the case, that is, whether the Plaintiff has made out a case Under Section 13(b) of the 1947 Act. 16. We may hasten to add that as far as the revision arising out of refusal of the order of injunction is concerned, it does not deserve to be dwelt upon by the High Court as we do not see there is any justification to do so. The conclusion on that score by the High Court is justified. Therefore, the civil appeal arising out of Civil Revision Application No. 172 of 2016, stands dismissed. What is r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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