Gurbux Singh vs Bhooralal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 583 of 1961

Decision Date: 22 April 1964

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta

In the matter of Gurbux Singh versus Bhooralal, decided on 22 April 1964, the Supreme Court of India rendered its judgment. The bench was composed of Chief Justice P. B. Gajendragadkar and Justices N. Rajagopala Ayyangar, K. N. Wanchoo, M. Hidayatullah, M. Gupta and K. C. Das Gupta. The case was cited as 1964 AIR 1810 and 1964 SCR (7) 831 and concerned the provisions of the Civil Procedure Code, 1908, particularly Order 2, rules 2 and 3.

The plaintiff, who is also the respondent in the earlier suit, instituted a suit against the defendant, the appellant, seeking recovery of possession of certain land and the mesne profits accruing therefrom. In his pleading, the plaintiff asserted that he was the absolute owner of the property and that the defendant occupied the land wrongfully, thereby entitling the plaintiff to both possession and mesne profits. The plaintiff also referred to a prior suit, Civil Suit 28 of 1950, filed by himself and his mother, in which the same land was the subject of a claim for mesne profits for the period ending 1 February 1950. That earlier proceeding resulted in a decree granting the mesne profits claimed.

The defendant, in his written statement to the present suit, raised a technical objection based on Order 2, rule 2 of the Civil Procedure Code, alleging that the current suit was barred because it related to the same cause of action as the earlier suit. Before any evidence was adduced, the trial court considered this preliminary objection and concluded that the suit was indeed barred under Order 2, rule 2. Upon appeal, the appellate court reversed that finding, holding that a bar under Order 2, rule 2 could not be entertained where the pleadings of the former suit had not been produced in the present proceedings. Consequently, the appellate court set aside the trial court’s order. The defendant then appealed this reversal, but the High Court dismissed the appeal. The appellant obtained special leave to appeal the High Court’s judgment, leading to the present appeal before the Supreme Court.

The Supreme Court held that a plea under Order 2, rule 2 of the Code, which is premised on the existence of a former pleading, cannot be entertained unless the earlier pleading is produced before the court. The defendant must produce the pleadings from the prior suit to demonstrate that the cause of action in both suits is identical. In the present case, the plaintiff’s failure to produce the pleadings from Civil Suit 28 of 1950 meant that the trial court could not validly entertain the bar under Order 2, rule 2. Accordingly, the Court concluded that the plea of a bar should not have been entertained by the trial court, and the appeal was allowed.

The Court explained that a plea invoking the bar under Order 2 Rule 2 of the Code could be established only by producing the plaint of the earlier suit whose filing is alleged to create the bar. In the absence of that earlier plaint, the defendant could not ask the Court to guess or deduce what facts were asserted in it, nor could the Court infer those facts from the reliefs that were claimed in the earlier proceedings. Applying this principle to the present case, the Court held that the trial Court ought not to have entertained the bar plea under Order 2 Rule 2 because the appellant had not produced the pleadings of Civil Suit No. 28 of 1950 in support of that plea. The Court further set out the conditions that must be satisfied for a bar under Order 2 Rule 2(3) to succeed. First, the defendant must demonstrate that the second suit arises from the same cause of action as the earlier suit. Second, the defendant must show that, with respect to that cause of action, the plaintiff was entitled to more than one relief. Third, the plaintiff must have, without obtaining leave from the Court, failed to sue for one of the entitled reliefs in the earlier suit, thereby seeking it in the subsequent suit. The judgment then proceeded to the civil appellate jurisdiction, noting that Civil Appeal No. 583 of 1961 was filed by special leave against the judgment and decree dated 12 August 1959 of the Rajasthan High Court in Civil Miscellaneous First Appeal No. 50 of 1956. Counsel for the appellant and counsel for the respondent were listed, and the date of the judgment was recorded as 22 April 1964, delivered by Justice Ayyangar. The factual background described that the respondent, Bhooralal, had instituted Civil Suit 20‑1954 in the Subordinate Court of Kekri against the appellant, seeking possession of certain property and mesne profits. The plaint alleged that the plaintiff owned the property absolutely, that the defendant was in wrongful possession, and that despite demands the defendant had not vacated, making him liable for mesne profits. The plaint also referred to a prior suit filed by the plaintiff and his mother, Civil Suit 28 of 1950, in which the plaintiff had claimed mesne profits for the same property up to 10 February 1950, and it was asserted that mesne profits had been decreed in that earlier suit. In the appellant’s written statement, apart from contesting the plaintiff’s substantive claims, a technical plea regarding the maintainability of the suit was raised, stating that …

The appellant relied upon a contention that Order 2, Rule 2 of the Civil Procedure Code barred the suit. According to that pleading, when the earlier suit mentioned in paragraph 2 of the plaint was instituted, the plaintiff already possessed a cause of action for the reliefs sought. Because the plaintiff had failed to sue for possession in that earlier suit, the pleading asserted that he was consequently barred from claiming possession now, and that no second suit for recovery of mesne profits could be maintained at law. The pleading further argued that, having lost the remedy for possession, the plaintiff could not also pursue mesne profits. On the basis of these submissions, the learned Subordinate Judge formulated five issues, the fourth of which asked: “Whether Order 2, Rule 2 of the Civil Procedure Code is a bar?” Before any evidence was produced, the trial Judge considered issue 4 as a preliminary question, found that the suit was indeed barred by the cited provision, and ordered the suit to be dismissed. The plaintiff appealed that dismissal to the Additional District Judge. The appellate Court examined the bar under Order 2, Rule 2 on two alternative grounds. First, the learned District Judge observed that the pleadings in the earlier suit—Civil Suit 28 of 1950—had not been filed in the present case and were therefore not part of the record, leaving the precise allegations of the plaintiff in the prior suit unknown. Consequently, the District Judge held that the bar under Order 2, Rule 2 should not have been entertained at all. He also considered, hypothetically, whether the bar might succeed if it were available. Noting the existence of conflicting judicial opinions on this point, the Judge indicated that, had the issue required determination, he would have decided in favor of the plaintiff, treating the cause of action for mesne profits as distinct from the cause of action for possession of the property against a trespasser. However, because his initial finding was that there was no material on record to justify invoking the bar, the District Judge did not rely on any construction of Order 2, Rule 2(3). Accordingly, he set aside the earlier dismissal and remanded the matter to the trial Court for a decision on the merits in accordance with law. The appellant, dissatisfied with this outcome, filed a second appeal to the High Court of Rajasthan, where the learned Single Judge dismissed the appeal. After obtaining special leave, the appellants now bring the present appeal, noting that a conflict of judicial opinion persists regarding whether a suit for possession of immovable property and a suit for recovery of mesne profits from the same property arise from the same cause of action, a question that determines the applicability of the bar under Order 2, Rule 2.

In this case the Court considered whether a suit for possession of immoveable property and a suit for the recovery of mesne profits from the same property arise from a single cause of action. The Court explained that the two reliefs can be pursued together only when they share the same cause of action; otherwise the defence based on Order 2 Rule 2 of the Civil Procedure Code, raised by the appellant, could not succeed. The Court then quoted the relevant text of Order 2 Rule 2(3), which provides that a person entitled to more than one relief stemming from the same cause of action may sue for all such reliefs, but if the person, without obtaining the Court’s leave, omits to sue for any of those reliefs, he is barred from bringing a later suit for the omitted relief. The Court noted that several High Courts, especially the Madras High Court, have referred to Order 2 Rule 4 as an aid for interpreting the terms “cause of action” and “relief based on the same cause of action” in Order 2 Rule 2(3). Order 2 Rule 4 states that no cause of action shall, without the Court’s leave, be joined with a suit for recovery of immoveable property except for claims for mesne profits or arrears of rent, claims for damages arising from a breach of contract concerning the property, and claims where the relief sought is based on the same cause of action, subject to a proviso concerning foreclosure or redemption suits. By reading Order 2 Rule 2(3) together with Order 2 Rule 4, the Court observed that some authorities have held that the cause of action for a possession suit and the cause of action for a mesne‑profits suit are distinct. In contrast, the Allahabad High Court has held that both claims arise from the same wrongful possession of the property, and therefore the plaintiff who first sues for possession or for mesne profits alone is thereafter barred from suing for the other relief under Order 2 Rule 2(3). The trial judge, after noting the conflicting authorities, preferred the Allahabad view and consequently upheld the defence. At the appellate stage the learned District Judge favored the opposite view, and the learned Single Judge concurred with the District Judge, endorsing the Madras perspective over the Allahabad decisions.

The appellant’s counsel, referring to the judgment of the Allahabad High Court, argued that the view expressed by that court aligned more closely with legal principle and with the correct interpretation of Order 2 Rule 2(3) of the Civil Procedure Code. The Court, however, held that it was unnecessary to resolve that conflict of judicial opinion because, in its view, the learned District Judge had correctly concluded that the appellant had failed to place before the Court any material capable of supporting a plea under Order 2 Rule 2 of the Civil Procedure Code. The Court explained that for a defence based on the bar provided by Order 2 Rule 2(3) to succeed, the party raising the defence must satisfy three requirements. First, the second suit must relate to the same cause of action as the earlier suit. Second, the plaintiff in the earlier suit must have been entitled to more than one relief with respect to that cause of action. Third, having been entitled to multiple reliefs, the plaintiff must have proceeded with the second suit without obtaining leave of the Court for the relief that was omitted in the first proceeding. From this analysis, the Court observed that the defendant must first establish the exact cause of action upon which the earlier suit was based; without a clear identity between the cause of action in the earlier suit and that in the later suit, the bar under Order 2 Rule 2(3) cannot be invoked. The Court noted that although a relief claimed in a plaint is often traceable to a specific cause of action, this is not an absolute rule. Because the bar is a technical defence, it must be proved with certainty and cannot be presumed merely by inference. Accordingly, the Court held that the defence under Order 2 Rule 2 can be established only when the defendant produces the pleadings of the earlier suit as evidence and thereby demonstrates to the Court that the causes of action in the two suits are identical. It was a matter of common ground that the pleadings in Civil Suit 28 of 1950 had not been filed by the appellant in the present suit as evidence to support his plea under Order 2 Rule 2. Nevertheless, the learned trial Judge, despite the absence of those pleadings from the record, attempted to infer the earlier cause of action by deducing it from the reference to the previous suit contained in the plaint. At the appellate stage, the learned District Judge identified this gap in the appellant’s case and correctly pointed out, in the Court’s opinion, that without the earlier plaint being placed on the record, the defence of the bar under Order 2 Rule 2 could not be maintained. The appellant’s counsel subsequently reiterated his arguments, but the Court maintained that the necessary material to substantiate the plea was lacking.

In this case, counsel for the appellant referred the Court to a passage from the judgment of the learned High Court judge, which read: “The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court.” Counsel argued that this passage indicated that the parties had, by agreement, consented to make the pleadings of the earlier suit part of the record in the present suit. The Court was unable to accept this interpretation. The statement that “the two courts have, however, freely cited from the record of the earlier suit” was plainly inaccurate, because the learned District Judge had specifically held that the pleadings of the earlier suit were not part of the record and, on that basis, had rejected the plea of a bar under Order 2 Rule 2 of the Civil Procedure Code. Moreover, there was no basis to conclude that the learned judge had admitted those documents at the second‑appeal stage under Order 41 Rule 27 of the Civil Procedure Code by consent of the parties. The record contained no indication of any such agreement or order, even assuming that additional evidence could be admitted at the second appeal under Order 41 Rule 27. Consequently, the Court proceeded on the premise that the pleadings of the earlier suit were not part of the record in the present suit. Counsel further urged that the plaint in the present suit specifically referred to the prior suit as being for mesne profits, and since mesne profits could be claimed only against a trespasser, the earlier suit should have alleged that the defendant was a trespasser in wrongful possession, which alone could form the basis for claiming mesne profits. The Court was unable to accept this argument. First, it was admitted that the plaint in the present suit was drafted in Hindi and that the term “mesne profits” was an English translation of an expression used in the original text; the original Hindi plaint was not before the Court, making it impossible to verify whether the translation was accurate. Beyond this, the Court found that counsel’s argument must be rejected for a more fundamental reason: just as a plea of res judicata cannot be established without the judgment and decree that are pleaded as estoppel being on record, a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be sustained without proof of the plaint in the previous suit whose filing is alleged to create the bar.

In this case the Court explained that a statutory provision could not be applied unless the pleading in the earlier suit was produced, because the earlier suit was alleged to create a bar. The defence relied on the claim that the cause of action in the present suit was identical to the cause of action in the former suit; consequently, the defence had to establish what the cause of action in that earlier suit actually was. The Court noted that the cause of action consists of the factual allegations that the former plaintiff set out to support the relief he sought. Since the earlier plaint was not placed before the Court, the defendant could not ask the Court to guess or deduce what those factual allegations might have been in relation to the relief claimed at that time. The Court observed that it was possible that reliefs had been claimed without the necessary factual averments to justify them. Therefore, the mere occurrence of the expression “mesne profits” in the present plaint did not automatically mean that the defendant’s possession was alleged to be wrongful. The Court also observed that the term “mesne profits” might have been used in the present plaint without a proper understanding of its legal significance. What was essential, the Court held, was not how the particular sum was described, but the substantive allegation on which the claim to that sum rested and the legal relationship on which the relief was based. For these reasons, the Court concluded that a plea depending on the existence of a former pleading could not be entertained when the pleading on which it relied had not been produced. Accordingly, the Court found that the order of remand issued by the learned Additional District Judge and affirmed by the learned High Court Judge was correct. The merits of the suit had not yet been tried, and the order of remand was therefore affirmed. The appeal was dismissed, and no order as to costs was made.