TaxTMI 
TaxTMI 
2019 (5) TMI 1866
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....of land in Khasra No. 189 at Village Gondia in his name. On 21.01.1959, he sold the land to the extent of 3.20 acres out of the total 8.22 acres to the Appellants and thereafter, on 11.02.1959, he sold the remaining portion of 4.82 acres of land, which was the balance out of 8.22 acres, also to the Appellants. Tikaram passed away on 15.07.1959. 3. The Respondents filed a suit (bearing Civil Suit No. 131 of 1963) for setting aside the Sale Deed dated 21.01.1959 and for other reliefs. The allegation made by the Respondents in the suit was that the land was a joint family ancestral property and he had sold it for immoral purposes and in a manner prejudicial to the interest of joint family. He was addicted to drink and there was no necessity to sell the property. 4. On 31.01.1969, the Trial Court dismissed the said suit holding that Tikaram was the owner of the property due to the partition effected in the year 1957. Hence, he had the right to sell the suit land. The Appellants were bona fide purchasers. 5. Aggrieved by the decree of the Trial Court, the Respondents filed an appeal (bearing Civil Appeal NO. 22 of 1969) on 10.02.1971. 6. The Respondents again filed the prese....
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....t the cause of action in both the suits are different. He also drew our attention to Article 109 of the Limitation Act, 1963, which reads as follows: 11. He would contend that the period of limitation as far as the second sale deed is different from the period of limitation as far as the first sale deed is concerned. The period of limitation as far as the second alienation is concerned will expire only on the expiry of 12 years from the date of taking of possession by the alienee. He further relied on the judgment of this Court in Alka Gupta v. Narender Gupta (2010) 10 SCC 141. 12. The first question, which we are called upon to decide, is whether the High Court was right in holding that the bar, Under Order II Rule 2, will not apply in the facts of this case. 13. Before, we advert to the decisions on the point it would be profitable to refer to the pleadings in two suits. 14. In Civil Suit No. 131 of 1963, we notice the following pleadings. The Respondents (Plaintiffs) are Hindus governed by Mitakshara School of Law as administered by Benaras School. Tikaram's father died when Tikaram was a minor. During the minority of Tikaram, the property was managed by his moth....
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.... to be set aside for this reason. Thereafter, there were certain further allegations with which we are not concerned. 17. The reliefs sought by the Plaintiffs in the plaint were to declare the sale deed as not binding on the interest of Plaintiff No. 4 and for delivery of possession to her or in the alternative a decree for setting aside the sale deed dated 21.01.1959 and for delivery of possession to the Plaintiff, enquiry as to mesne profits and for mandatory injunction to demolish certain constructions. 18. Let us now look at the pleadings in the second suit viz. Civil Suit No. 34 of 1971. 19. Herein also, the Plaintiffs and the Defendants are the same. It is stated inter alia as follows: The Bhumidhari land Kh. No. 189 area 8.22 acres situated in village Gondia is the ancestral property of Plaintiff Nos. 1, 2 and 3. Plaintiff No. 4 is the mother of Plaintiff Nos. 1 to 3. The Plaintiffs are Hindu and are governed by Mitakshara Law as administered by Benaras School. The same allegations were raised about Tikaram having fallen into immoral habits and growing into an incorrigible drunkard and selling joint family ancestral lands for immoral purposes. It also refer....
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....s a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907. 22. Thereafter, the High Court proceeds to take a case where A owns two houses and he let them to B. A suit is filed in respect of arrears of rent in respect of one house, though arrears were there in respect of the other house also. The High Court takes the view that it is the choice of the Plaintiff either to unite or not to unite both the causes of action and the second suit would not be barred. 23. In the case of Mohammad Khalil Khan v. Mehbub Ali Mian AIR (36) 1949 Privy Council 78, the earlier suit related to the property at Oudh. The parties belonged to the Sunni sect and the properties belonged to one Rani Barkatunnissa who owned properties at Shahjahanpur and Oudh. The first suit did not include the property at Shahjahanpur. The Court proceeded to uphold the views taken by the Courts in India and maintained the finding that second suit, in relation to the property at Shahjahanpur, was barred by virtue of Order II Rule 2. It would be profi....
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....ered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the Defendant nor does it depend upon the character of the relief prayed for by the Plaintiff. It refers.. to the media upon which the Plaintiff asks the Court to arrive at a conclusion in his favour. 25. Still further, in paragraph 63, the Court has proceeded to conclude as follows: 63. The Plaintiffs' cause of action to recover the properties consists of those facts which would entitle them to establish their title to the properties. These facts are the same with respect to both properties, these being, that Rani Barkatunnissa was the owner of the properties; that she died on 13th February, 1927, that she was a Sunni by faith and that they are her heirs under the Muhammadan law. Having regard to the conduct of the parties their Lordships take the view that the course of dealing by the parties in respect of both properties was the same and the denial of the Plaintiffs' title to the Oudh property and the possession of the Shahjahanpur property by the Defendants obtained as a result of that denial formed part of....
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....he same cause of action. The consequences of such omission will be to preclude Plaintiff from suing for any relief which is so omitted. The only exception is when he obtains leave of the Court. In a recent judgment of this Court, the distinction between Order II Rule 2(1) and Order II Rule 2(3) has been succinctly brought out in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. (2013) 1 SCC 625,. This Court, inter alia, has held as follows: Order 2 Rule 1 Code of Civil Procedure requires every suit to include the whole of the claim to which the Plaintiff is entitled in respect of any particular cause of action. However, the Plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 Code of Civil Procedure contemplates a situation where a Plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the Plaintiff so acts, Order 2 Rule 2 makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. Leave of the Court is contemplated by Order 2 Rule 2(3) in situations where a Plaintiff being entitled to more ....
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....e of action, as explained by the Privy Council in Mohammad Khalil Khan case (supra), means the Media through which the Plaintiff seeks to persuade the Court to grant him relief. It could, therefore, be said to be the factual and legal basis or premise upon which the Court is invited by the Plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter. 30. In Coffee Board case (supra), the Respondent purchased coffee at the export auctions and exported them to certain countries. He filed two suits. The Coffee Board had provided for stamps system for exporting of coffee. Complaint of the Plaintiff was that the Defendants failed to supply the stamps but there was delay and it resulted in losses. This is what the Court held: 12. The courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the Plaintiff in his plaints filed in the relevant suits (see S. Nazeer Ahmed v. State Bank of Mysore 2007 (11) SCC 75). Considering the technicality of the plea of Order 2 Rule 2, both the plai....
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....nership deed was executed till 31.07.2004. According to the Appellant, the partnership was one at will and was dissolved. This Court overturned the view of the High Court that the suit was barred by Order II Rule 2 and by the principles of constructive res judicata. The Court followed the judgment of this Court in Gurbux Singh v. Bhooralal AIR 1964 SC 1810, and inter alia, held as follows: A Division Bench upheld that decision on the grounds that the suit was barred by Order 2 Rule 2 Code of Civil Procedure and that the Appellant had settled all her claims with the Respondent under the bayana agreement dated 29.06.2004. The present appeal was then filed by special leave. The cause of action for the first suit was non-payment of price under the agreement of sale dated 29.06.2004, whereas the cause of action for the second suit was non-settling of accounts of a dissolved partnership constituted under the deed dated 05.04.2000. Merely because the agreement of sale related to an immovable property at R and the business run therein under the name of Takshila Institute and the second suit referred to a partnership in regard to business run at P also under the same name ....
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.... of the claim raised in the first application. The bar enacted by Order 2 Rule 2 Code of Civil Procedure is clearly not attracted. 35. In S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75, the Appellant/Defendant borrowed some money from the Plaintiff's bank by hypothecating and by mortgaging two items. The money suit filed by the bank was decreed. The proceedings in execution was unsuccessful as the bus, which was hypothecated, could not be traced. The bank prayed to proceed against the mortgaged property in execution. It was resisted by the Appellant by pointing out that there was no decree on the mortgage and the bank could only attach the properties and could not sell it straightaway. The said objection was upheld. Thereupon, the bank instituted the second suit for enforcement of the equitable mortgage. This Court proceeded to take a view that the cause of action in the second suit was different. The Court also further drew support from Order XXXIV Rule 14 and proceeded to hold as follows: 14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order 2 Rule 2 of the Code in view ....
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....Respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation as already noted. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. We are of the view that this argument proceeds on a misapprehension as to what constitutes the cause of action. Cause of action has been explained in many decisions. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Court's intervention is sought by the Plaintiff. 38. What is the legal basis/factual matrix premised on which the Plaintiff seeks a decree? 39. In this case, we have noticed the pleadings. The case of the Plaintiffs appears to be that the property is ancestral property. Their late father Tikaram was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres falling in Kh. No. 189....