http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GURBUX SINGH

       Vs.

RESPONDENT: BHOORALAL

DATE OF JUDGMENT: 22/04/1964

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS

CITATION:  1964 AIR 1810            1964 SCR  (7) 831

ACT: Civil  Procedure-Suit filed for recovery of  possession  and mesne profits-In a previous suit a decree for mesne  profits was  passed  in respect of the same  land-Whether  cause  of action  same  in both suits-Subsequent suit  whether  barred under  provisions of the Code-Code of Civil Procedure,  1908 (Act 5 of 1908), Order 2 rr. (2) and (3).

HEADNOTE: The  plaintiff-respondent brought a suit against the  appel- lant for recovery of possession of certain property and  for mesne profits.  The plaintiff claimed recovery of possession and  mesne  profits on the ground that he was  the  absolute owner  of  the  property described in  the  plaint  and  the defendant  was in, wrongful possession of the same.  In  the plaint the plaintiff made reference to a previous suit  that had  been  filed  by him and his mother (C.S.  28  of  1950) wherein a claim had been made against the defendant for  the recovery of the mesne profits in regard to the same property for  the period ending February 1.0, 1950.  In the  previous suit  the  mense profits had been decreed.  In  his  written statement in the present suit the defendant appellant raised a technical plea under Order 2 rule 2 of the Civil Procedure Code to the maintainability of the suit. Before  evidence was led by the parties the trial court  de- cided  this preliminary issue raised by the defendant.   The trial court held that the suit was barred under 0. 2 r. 2 of the Code.  On appeal, the Appellate Court held that the plea of  a bar under Order 2 rule 2, Civil Procedum  Code  should not  have teen entertained at all because the  pleadings  in the  earlier suit C.S. 28 of 1950 had not been filed in  the present case. Therefore,  the Appellate Court set aside the order  of  the trial Court.  Against this order the defendant preferred  an appeal which was dismissed by the High Court.  The appellant obtained  special  leave against the judgment  of  the  High Court. Hence the appeal-- Held:(i)  A plea under Order 2 rule 2 of the Code  based  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

the  existence  of a former pleading cannot  be  entertained when  the pleading on which it rests has not been  produced. It  is for this reason that a plea of a bar under 0. 2 r.  2 of  the Code 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.  In other words a plea under 0. 2 r. 2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without  placing before the court the plaint in which  those facts were alleged, the defendant cannot invite the court to speculate  or  infer by a process of  deduction  what  those facts might be with reference to the reliefs which were then claimed.   On the facts of this case it has to be held  that the  plea  of a bar under 0, 2 r. 2 of the Code  should  not have been entertained at all by 832 the  trial Court because the pleadings in civil suit No.  28 of  1950 were not filed by the appellant in support of  this plea. (ii)in order that a plea of a bar under 0. 2 r. 2 (3) of the Code  should succeed the defendant who raises the plea  must make out (i) that the second suit was in respect of the same cause  of  action  as that on which the  previous  suit  was based;  (ii)  that in respect of that cause  of  action  the plaintiff  was entitled to more that one relief  (iii)  that being  thus  entitled  to more than  one  relief  plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 583 of  1961. Appeal  by special leave from the Judgment and decree  dated August 12, 1959, of the Rajasthan High Court in Civil  Misc. First Appeal No. 50 of 1956. Gopal Singh, for the appellant. B. P. Maheshwari, for the respondent. April 22, 1964.  The Judgment of the Court was delivered by AYYANGAR,  J.--The  facts  giving rise to  this  appeal,  by special  leave,  are  briefly  as  folows:  The  respondent- Bhooralal-brought a suit-Civil Suit 20 1954-in the Court  of the  Subordinate  Judge,  First  Class,  Kekri  against  the appellant claiming possession of certain property which  was described  in  the  plaint  and  for  mesne  profits.    The allegation  in  the plaint was that the  plaintiff  was  the absolute  owner of the said property of which the  defendant was  in wrongful possession and that in spite of demands  he had  failed to vacate the same and was therefore  liable  to pay  the  mesne  profits claimed.  In  the  plaint  he  made reference to a previous suit that had been filed by him  and his  mother (C.S. 28 of 1950) wherein a claim had been  made against the defendant for the recovery of the mesne  profits in  regard to the same property for the period  ending  with February  10, 1950.  It was also stated that  mesne  profits had been decreed in the said suit.  In the Written Statement that  was filed by the present appellant, besides  disputing the claim of the plaintiff to the reliefs prayed for on  the merits, a technical plea to the maintainability of the  suit was also raised in these terms:               "That  0. 2. r. 2, Civil Procedure Code  is  a               bar to the suit.  When the suit referred to in               paragraph  2  of  the  plaint  was  filed  the               plaintiff  had  a  cause  of  action  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

             reliefs  also.  He having omitted to  sue  for               possession  in that suit, is now  barred  from               claiming relief of possession.  No second suit               for recovery of mesne profits is  maintainable               in law.               833               Since  the plaintiff had lost his  remedy  for               the  relief  of  possession  he  cannot   seek               recovery of mesne profits also." On  these pleadings the learned Subordinate Judge  framed  5 issues and of these the 4th issue ran: "Whether  0.  2.  r. 2, Civil Procedure  Code  is  a  bar?". Before  evidence  was  led by the parties issue  no.  4  was argued before the learned trial Judge as a preliminary issue and the Court recorded a finding that the suit was barred by the provision named and directed the dismissal of the suit. The  plaintiff preferred an appeal from this decree  to  the additional District Judge and the appellate Court considered this  plea  as  regards  the bar under 0.  2.  r.  2,  Civil Procedure  Code  on  two alternative bases.   In  the  first place,  the  learned  District Judge pointed  out  that  the pleadings  in the earlier suit-C.S. 28 of 1950-had not  been field  in the case and made part of the record, so  that  it was not known what the precise allegations of the  plaintiff in  his  previous suit were.  For this  reason  the  learned District Judge held that the plea of a bar under 0. 2. r. 2, Civil  Procedure  Code should not have been  entertained  at all.  He also considered the question as to whether, if  the plea  was  available, it could have succeeded.  On  this  he referred  to the conflict of Judicial opinion on this  point and  held that if the point did arise for decision he  would have  decided  in favour of the plaintiff  and  treated  the cause  of action for a suit for mesne profits  as  different from  the  cause of action for the relief of  possession  of property  from  a  trespasser.  In  view,  however,  of  his finding on the first point as to there being no material  on the  record to justify the plea of a bar under 0. 2.  r.  2, Civil Procedure Code the learned District Judge did not rest his  decision  on  his  view  of  the  law  as  regards  the construction of 0. 2. r. 2(3).  In the circumstances he  set aside the dismissal of the suit and remanded it to the trial Court for being decided on the merits in accordance with the law. The  defendant-the  appellant before us-preferred  a  second appeal to the High Court of Rajasthan and the learned Single Judge dismissed this appeal.  It is from this judgment  that the  appellants have preferred this appeal  after  obtaining special leave. As  already  indicated,  there is  a  conflict  of  judicial opinion  on  the question whether a suit for  possession  of immoveable  property  and a suit for the recovery  of  mesne profits  from the same property are both based on  the  same cause  of  action, for it is only if these two  reliefs  are based  on "the same cause of action" that the plea of 0.  2. r. 2., Civil Procedure Code 1, P(D)ISCI-27 834 that  was  raised by the appellant  could  succeed.   Clause (3)of O.  2. r. 2, Civil Procedure Code that is relevant  in this context reads:               (3)   A  person  entitled  to  more  than  one               relief in respect of the same cause of  action               may sue for all or any of such reliefs, but if               he omits, except with the leave of the  Court,               to  sue  for all such reliefs,  he  shall  not               afterwards sue for any reliefs so omitted."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

Some  of the High Courts, notably Madras, have in this  con- nection, referred to the terms of 0. 2. r. 4 which runs:               "R.  4. No cause of action shall, unless  with               the leave of the Court, be joined with a  suit               for  the  recovery  of  immoveable   property,               except-               (a)   claims  for mesne profits or arrears  of               rent in respect of the property claimed or any               part thereof;               (b)   claims  for  damages for breach  of  any               contract under which the property or any  part               thereof is held; and               (c)   claims  in  which the relief  sought  is               based on the same cause of action:               Provided  that nothing in this rule  shall  be               deemed  to  prevent any party in  a  suit  for               foreclosure  or redemption from asking  to  be               put   into   possession   of   the   mortgaged               property". as an aid to the construction of the term ’cause of  action’ and  the  expression  ’relief based on  the  same  cause  of action’  in  0. 2. r. 2(3).  Reading  these  two  provisions together it has been held that the cause of action for suits for  possession  of  immoveable property and  the  cause  of action for a suit in respect of mesne profits from the  same property are distinct and different.  On the other hand,  it has  been held, particularly by the High Court of  Allahabad that  the  basis of a claim for mesne  profits  is  wrongful possession of property and so is a claim for possession  and thus  the cause of action for claiming either relief is  the same  viz.,  wrongful possession of property  to  which  the plaintiff  is entitled.  On this reasoning it has been  held that a plaintiff who brings in the first instance a suit for possession  alone or for mesne profits alone  is  afterwards debarred  from  suing for the other relief under  0.  2.  r. 2(3).   The learned trial Judge had, after referring to  the ,conflict  of  authority, expressed his preference  for  the Allahabad  view and had, therefore, upheld the defence.   At the  stage of the appeal the learned District Judge had,  as already pointed out, expressed his preference for the  other view.  The 835 learned  Single  Judge expressed his  concurrence  with  the learned  District  Judge in preferring the  Madras  view  as against the decisions of the Allahabad High Court. Learned  counsel for the appellant sought to argue that  the Allahabad  view  was more in accordance with  principle  and with the proper construction of 0. 2. r. 2(3), Civil  Proce- dure Code.  We do not consider it necessary to examine  this conflict  of  judicial  opinion  in this  case  as,  in  our opinion,  the  learned District Judge was right  in  holding that the appellant had not placed before the Court  material for  the  purpose of founding a plea of 0. 2.  r.  2,  Civil Procedure Code. In  order  that a plea of a bar under 0. 2. r.  2(3),  Civil Procedure  Code should succeed the defendant who raises  the plea  must make out (1) that the second suit was in  respect of  the same cause of action as that on which  the  previous suit was based, (2) that in respect of that cause of  action the plaintiff was entitled to more than one relief, (3) that being  thus entitled to more than one relief the  plaintiff, without  leave obtained from the Court, omitted to  sue  for the  relief for which the second suit had been filed.   From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise  cause

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

of action upon which the previous suit was filed, for unless there  is identity between the cause of action on which  the earlier  suit was filed and that on which the claim  in  the later  suit  is  based  there would  be  no  scope  for  the application of the bar.  No doubt, a relief which is  sought in  a  plaint could ordinarly 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 0. 2. r.  2,  Civil Procedure  Code  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.  It is common  ground  that  the pleadings in C.S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under 0. 2. r. 2, Civil Procedure Code.  The learned trial  Judge, however,  without  these  pleadings  being  on  the   record inferred what the cause of action should have been from  the reference to the previous suit contained in the plaint as  a matter of deduction.  At the stage of the appeal the learned District Judge noticed this lacuna in the appelllant’s  case and  pointed out, in our opinion rightly, that  without  the plaint in the previous suit being on the record, a plea of a bar  under  0. 2. r. 2, Civil Procedure Code was  not  main- tainable.  Learned counsel for the appellant, however,  drew our  attention to a passage in the judgment of  the  learned Judge in the High Court which read: LP(D)ISCl-27(a) 836               "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." It was his submission that from this passage we should infer that  the parties had, by agreement, consented to  make  the pleadings  in  the earlier suit part of the  record  in  the present   suit.    We  are  unable  to   agree   with   this interpretation of these ,observations.  The statement of the learned  Judge "the two courts have, however,  freely  cited from   the  record  of  the  ,earlier  suit"  is   obviously inaccurate  as  the  learned  District  Judge   specifically pointed out that the pleadings in the earlier suit were  not part of the record and on that very ground had rejected  the plea of the bar under 0. 2. r. 2, Civil Procedure Code.  Nor can  we find any basis for the suggestion that  the  learned Judge  had  admitted these documents at  the  second  appeal stage under 0. 41. r. 27, Civil Procedure Code by consent of parties.  There is nothing on the record to suggest such  an agreement  or  such  an  order,  assuming  that   additional evidence  could legitimately be admitted in a second  appeal under 0. 41. r. 27, Civil Procedure Code.  We can  therefore proceed only on the basis that the pleadings in the  earlier suit were not part of the record in the present suit. Learned  counsel for the appellant, however, urged  that  in his   plaint  in  the  present  suit  the   respondent   had specifically  referred to the previous suit having been  for mesne profits and that as mesne profits could not be claimed except  from  a trespasser there should also  have  been  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

allegation  in  the previous suit that the defendant  was  a trespasser  in wrongful possession of the property and  that alone could have been the basis for claiming mesne  profits. We are unable to accept this argument.  In the first  place, it  is admitted that the plaint in the present suit  was  in Hindi  and  that  the word ‘mesne  profits’  is  an  English translation  of some expression used in the  original.   The original  of  the plaint is not before us and so it  is  not possible to verify whether the expression ‘mesne profits’ is an  accurate translation of the expression in  the  original plaint.   This  apart, we consider  that  learned  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  0. 2. r. 2, Civil Procedure Code 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 837 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. Without  placing before the Court the plaint in which  those facts were alleged, the defendant cannot invite the Court to speculate  or  infer by a process of  deduction  what  those facts might be with reference to the reliefs which were then claimed.   It  is not impossible that reliefs  were  claimed without  the  necessary averments to  justify  their  grant. From the mere use of the words ‘mesne profits’ therefore one need  not  necessarily  infer that  the  possession  of  the defendant  was alleged to be wrongful.  It is also  possible that  the  expression ’mesne profits’ has been used  in  the present   plaint  without  a  proper  appreciation  of   its significance   in   law.    What   matters   is   not    the characterisation of the particular sum demanded but what  in substance  is the ,allegation on which the claim to the  sum was based and as regards the legal relationship on the basis of  which  that relief was sought.  If is because  of  these reasons that we consider that a plea based on the  existence of a former pleading cannot be entertained when the pleading on  which  it  rests has not been  produced.   We  therefore consider  that  the order of remand passed  by  the  learned Additional District Judge which was confirmed by the learned Judge  in the High Court was right.  The merits of the  suit have yet to be tried and this has been directed by the order of remand which we are affirming. The appeal fails and is dismissed.  In the circumstances  of the case there will be no order as to costs. Appeal dismissed. 838