2004 (2) TMI 731 - SC - Indian Laws

Subsequent suit for possession maintainable despite earlier injunction dismissal due to distinct causes of action under Order II Rule 2 CPC

SC held that subsequent suit for recovery of possession was maintainable despite earlier suit for prohibitory injunction being dismissed. The causes of ... Order II Rule 2 - suit to include whole claim; bar on suing subsequently for omitted reliefs - Res judicata - conclusive effect of prior adjudication under Section 11 - Cause of action - identity test; whether same evidence will maintain both actions - Definition of 'tenant' under the Kerala Compensation for Tenants Improvements Act - Section 2(d): good faith / bona fide belief and improvementsOrder II Rule 2 - suit to include whole claim; bar on suing subsequently for omitted reliefs - Cause of action - identity test; whether same evidence will maintain both actions - Whether the second suit for recovery of possession was barred by Order II Rule 2 of the Code because reliefs available in respect of the same cause of action were omitted in the earlier suit. - HELD THAT: - Order II Rule 2 requires that all reliefs arising out of the same cause of action be claimed in one suit; sub rule (3) bars subsequent suits for omitted reliefs unless leave was obtained. The essential inquiry is identity of cause of action between the earlier and later suits, which must be shown by the defendant and established on the record - ordinarily by placing pleadings of the previous suit - and the test includes whether the same evidence would support both actions. Applying these principles to the facts, the earlier proceeding sought declaration and injunction (protection against apprehended dispossession) while the later suit sought recovery of possession (assertion of actual dispossession and title). The Court held that the causes of action were not identical and that Order II Rule 2 did not apply to bar the subsequent suit; consequently the decree for recovery of possession was affirmed.Order II Rule 2 did not bar the subsequent suit; the decree for recovery of possession is affirmed.Definition of 'tenant' under the Kerala Compensation for Tenants Improvements Act - Section 2(d): good faith / bona fide belief and improvements - Factual determination of bona fide belief / good faith - Whether the appellant is entitled to compensation for improvements under Section 2(d) of the Compensation Act. - HELD THAT: - Section 2(d) describes different categories of persons who may qualify as 'tenant' for purposes of compensation for improvements, including those who are in possession in 'good faith' believing themselves to be lessees and those who make improvements in the 'bona fide belief' that they are entitled to do so. Entitlement under clause (iii) depends on the state of mind when the improvements were made; improvements made after litigation commenced or when a bona fide belief is lacking will not qualify. The appellate courts did not undertake the necessary factual enquiry into when and in what belief the alleged improvements were effected. Because the question turns on factual findings (good faith / bona fide belief and timing of improvements) the Court declined to decide the merit and remitted the claim for fresh consideration by the Trial Court, directing it to examine materials and adjudicate the claim within six months.Claim for compensation under Section 2(d) is remitted to the Trial Court for factual determination of good faith/bona fide belief and timing of improvements; no conclusive appellate finding on merits.Final Conclusion: The appeal is partly allowed: the High Court's dismissal of the contention based on Order II Rule 2 is upheld and the decree for recovery of possession is affirmed; the appellant's claim for compensation for alleged improvements under the Compensation Act is remitted to the Trial Court for fresh factual adjudication within six months. Issues Involved:1. Applicability of Order II Rule 2 of the Code of Civil Procedure, 1908.2. Eligibility for compensation under the Kerala Compensation for Tenants Improvements Act, 1958.Issue-wise Detailed Analysis:1. Applicability of Order II Rule 2 of the Code of Civil Procedure, 1908:The appellant contested the applicability of Order II Rule 2, arguing that the cause of action for both the suits was identical, and the plaintiffs in the subsequent suit had claimed reliefs that were sought in the earlier suit. Order II Rule 2 mandates that a suit must include the whole claim arising from a single cause of action, and if a plaintiff omits any portion of the claim, they cannot later sue for it. The rule emphasizes that all reliefs from the same cause of action should be included in one suit to avoid multiple litigations for the same cause.The Court examined whether the cause of action in the earlier suit was identical to that in the subsequent suit. The earlier suit was for confirmation of possession, while the present suit was for recovery of possession. The Court cited the case of Gurbux Singh v. Bhooralal, which laid down that for a plea under Order II Rule 2 to succeed, the defendant must prove that the second suit is based on the same cause of action as the first. The Court also referenced Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and Another, which reiterated that the cause of action must be identical in both suits to attract the bar of Order II Rule 2.The Court concluded that the cause of action in the two suits was different. The first suit was based on an apprehension of dispossession, while the subsequent suit was based on actual dispossession. Therefore, Order II Rule 2 did not apply, and the decree for recovery of possession in favor of the plaintiffs was affirmed.2. Eligibility for Compensation under the Kerala Compensation for Tenants Improvements Act, 1958:The appellant claimed compensation for improvements made to the property under Section 2(d) of the Compensation Act, which defines a 'tenant' and includes persons who, in good faith, believe themselves to be lessees or who make improvements under a bona fide belief of entitlement. The appellant argued that he fell under clauses (i) and (iii) of Section 2(d), asserting that he believed himself to be a lessee and had made improvements in good faith.The Court noted that the three clauses of Section 2(d) address different situations:- Clause (i) pertains to persons who in good faith believe themselves to be lessees.- Clause (ii) deals with persons who cultivate land with the intention of attorning and paying rent.- Clause (iii) covers persons who make improvements under a bona fide belief of entitlement.The Court found that the appellant's claim required factual determination regarding the timing and nature of the improvements. If the improvements were made after disputes began, they might not be considered bona fide. The Trial Court had not adequately considered whether the appellant acted in good faith or with a bona fide belief when making the improvements.The Court remitted the matter to the Trial Court for fresh consideration of the appellant's claim for compensation, instructing it to adjudicate the matter within six months and allow the parties to present evidence.Conclusion:The appeal was partly allowed, affirming the decree for recovery of possession but remitting the matter of compensation for improvements to the Trial Court for further adjudication. The Court emphasized the need for factual determination regarding the appellant's good faith and bona fide belief in making the improvements.