TaxTMI 
TaxTMI 
2019 (11) TMI 1613
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....t to sell would be instituted, in spite of which no leave of the Court was sought Under Order 2 Rule 2(3) of the Code of Civil Procedure. This appeal thus arises from the concurrent findings which have been recorded by the Trial Court, the First Appellate Court and by the High Court in Second Appeal holding the suit to be barred. 3. The facts on which the appeal arises are as follows (parties will be referred to by their descriptions in the suit): The subject of the dispute is agricultural land bearing Gat. No. 111 admeasuring 3 H 05 R situated at Mauje Nayegaon, Taluka Nandura, District Buldhana. On 26 October 1995, the original Defendant entered into an agreement to sell in favour of the original Plaintiff in respect of the suit land for a total consideration of Rs. 1,80,000. At the time of the agreement to sell, an amount of Rs. 1,50,000 was paid by way of earnest to the Defendant. The agreement stipulated that the sale deed would be executed by 25 October 1996 against the payment of the remaining consideration in the amount of Rs. 30,000. On 11 October 1996, a notice was issued by the Plaintiff to the Defendant for performance of the contract. The Plaintiff claims t....
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....96 the Defendant did not remain present in the office of Sub-Registrar Nandura and did not register the said sale deed in favour of Plaintiff when the Plaintiff was present there with a cash of Rs. 30,000/- to be paid to the Defendant. Hence for getting the fulfilment of the agreement took place between Plaintiff and the Defendant on 26.10.1995 the Plaintiff will file a suit in the Court of Hon'ble Civil Judge Senior Division, Khamgaon. 4. The reliefs sought in the suit were a declaration that the Plaintiff was in possession of the land and a permanent injunction restraining the Defendant from obstructing the possession of the Plaintiff. The suit for injunction was instituted on 30 October 1996. Admittedly, no leave of the Court was sought Under Order 2 Rule 2(3) of the Code of Civil Procedure in the earlier suit to institute a suit for specific performance subsequently. 5. On 30 April 1997, the Appellant-Plaintiff instituted Special Suit No. 61/1997 before the Civil Judge, Senior Division, Khamgaon seeking specific performance of the agreement to sell the property. The earlier suit for injunction was dismissed in default on 16 September 2005. The Defendant contested the ....
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.... together with the relief of permanent injunction. The foundation for the relief of permanent injunction claimed in the earlier suit furnished a complete cause of action to sue for the relief of specific performance. All the essential ingredients on the basis of which the subsequent suit was instituted existed on the date when the earlier suit had been filed. Since the Plaintiff omitted to seek the relief of specific performance which was available when the earlier suit for injunction was instituted, the Court inferred that the Plaintiff had relinquished the claim for specific performance. Finally, the first appellate court also held that after exploring the possibility of remand, it had come to the conclusion that it was unnecessary to do so since the parties had proceeded fully to trial knowing their rival cases and had led evidence. In the circumstances, the absence of an issue did not (it was held) cause any prejudice, warranting a remand. The judgment of the first appellate court was upheld by the High Court in a Second Appeal on 6 January 2017. That is how the proceedings before this Court arise Under Article 136 of the Constitution. 6. Mr. Shashibhushan P. Adgaonkar, lear....
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....ent injunction. The foundation for the relief of permanent injunction claimed in the earlier suit furnished a complete cause of action to sue for the relief of specific performance. All the essential ingredients on the basis of which the subsequent suit was instituted existed on the date when the earlier suit had been filed. Since the Plaintiff omitted to seek the relief of specific performance which was available when the earlier suit for injunction was instituted, the Court inferred that the Plaintiff had relinquished the claim for specific performance. Finally, the first appellate court also held that after exploring the possibility of remand, it had come to the conclusion that it was unnecessary to do so since the parties had proceeded fully to trial knowing their rival cases and had led evidence. In the circumstances, the absence of an issue did not (it was held) cause any prejudice, warranting a remand. The judgment of the first appellate court was upheld by the High Court in a Second Appeal on 6 January 2017. That is how the proceedings before this Court arise Under Article 136 of the Constitution. 7. Mr. Shashibhushan P. Adgaonkar, learned Counsel appearing on behalf of ....
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....eing attracted. Learned Counsel submitted that the distinction with the situation as it arose before the Constitution Bench in Gurbux Singh (supra) is that in the present case, the plaint in the earlier suit was duly marked as an Exhibit without any objection from the Plaintiff. Learned Counsel in that regard has also relied upon on the decisions of this Court in Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013) 1 SCC 625 and Pramod Kumar v. Zalak Singh (2019) 6 SCC 621. 9. Order 2 Rule 2 is extracted below: 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-Where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several relief.-A person entitled to more than one relief in respect of the same....
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....ing in the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian (1947-48) 75 IA 121, the Privy Council held: (1) The correct test in cases falling Under Order 2 Rule 2, is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (2) The cause of action means every fact which will be necessary for the Plaintiff to prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered 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. In order to attract the applicability of the bar enunciated Under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arise....
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....for relief without the leave of the Court, the bar Under Order 2 Rule 2(3) would stand attracted. 13. But the case of the Plaintiff in appeal is that in order that the bar Under Order 2 Rule 2 be attracted, it is necessary that the plaint in the earlier suit must be proved in evidence. In the present case it was submitted that this was not done. The basis of above submission is the judgment of the Constitution Bench in Gurbux Singh (supra). Now it is necessary to analyse the facts which led to the decision of the Constitution Bench. The Respondent had instituted a suit against the claimant for possession of certain property and for mesne profits. The allegation in the plaint was that the Plaintiff was the absolute owner of the property of which the Defendant was in wrongful possession and that despite a demand he had failed to vacate the property, thereby attracting the liability to pay mesne profits. The plaint contained a reference to a previous suit instituted by the Plaintiff and his mother in which a claim had been made against the Defendant for the recovery of mesne profits in regard to the same property. It was also stated that mesne profits had been decreed in the suit. ....
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....it 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, 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. On the facts of the case, the Constitution Bench noted, that it was common ground that the pleadings in the earlier suit had not been filed by the Appellant in the subsequent suit as evidence in support of the plea Under Order 2 Rule 2. This Court observed that in the absence of the pleadings, the decision of the Trial judge was merely as a matter of opinion. This Court agreed with the view which had been taken by the District Judge who had noticed the deficiency in the case of the Appellant: without the plaint in the previous suit being on the record, a plea of the bar Under Order 2 Rule 2 was not maintainable. As a matter of fact, the High Co....
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....e cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the Plaintiff that it was in pursuance of the agreement to sell dated 26 October 1995 that he had been placed in possession of the property. Yet, without seeking the leave of the Court, the Plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, we agree with the finding which has been arrived at by all the three courts that the subsequent suit filed is barred Under Order 2 Rule 2 does not warrant any interference in this appeal. The appeal would accordingly have to stand dismissed and we order accordingly. 15. However, there is one aspect of the case which, in our view, warrants a recourse to the power of this Court Under Article 142 to render a complete justice between the parties. 16. Admittedly, the Plaintiff has paid over an amount of Rs. 1,50,000 to the Defendant at the time of execution of the agreement on 26 October 1995. Apart from this, the Plaintiff deposited the balance of the consideration of Rs. 30,000 before the first appellate court on 3 February 2012 (a copy of the receipt is ....