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PETITIONER: SIDRAMAPPA

       Vs.

RESPONDENT: RAJASHETTY AND ORS.

DATE OF JUDGMENT: 09/12/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. (CJ)

CITATION:  1970 AIR 1059            1970 SCR  (3) 319  1970 SCC  (1) 186

ACT: Code  of  Civil  Procedure, 1908-Order  2  rule  2-Suit  for reopening-,  execution proceedings and impleading  as  legal representative-Subsequent  suit based on title-If barred  by Order 2, rule 2.

HEADNOTE: The  appellant applied to the executing court to reopen  the execution  proceedings in respect of certain properties  and to  implead him as the legal representative of the owner  of the  properties,  claiming that as the adopted  son  he  was entitled to delivery of possession.  The Court dismissed the application holding that his remedy was by way of a separate suit.   Thereupon he filed a suit for a declaration that  he was entitled to be impleaded in the execution proceedings as the  legal -representative and proceed with  the  execution. The purported cause of action for suit was the dismissal  of the  earlier  application for impleading  in  the  execution proceedings.   The suit was dismissed on the ground that  it was  hit by s. 42 of the Specific Relief Act inasmuch as  it was  not  one  for possession  of  the  concerned  property. Thereafter the appellant filed another suit on the basis  of his title.  The trial court dismissed the suit on the ground that the relief in question was barred by Order 2 rule 2  of the  Code of Civil Procedure.  The High Court affirmed.   On the question whether the plaintiff’s claim in respect of the properties  was  barred  by  Order 2  rule2  Code  of  Civil Procedure, HELD  : The High Court and the trial court proceeded on  the erroneous  basis  that  the former suit was  a  suit  for  a declaration  of the appellant’s title to the  properties  in question.  The requirements of Order 2 rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect  of a "cause of action." ’Cause of action’ means the, ’cause  of action  for which the suit was brought’.  It cannot be  said that  the  cause of action on which the  present  -suit  was brought is the same as that in the previous. suit.  Cause of action  is  a cause of action which gives occasion  for  and forms  the foundation of the suit.  If that cause of  action enables  a person to ask for a larger and wider relief  than

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that to which he limits his claim, he cannot afterwards seek to  recover the balance by independent proceedings. [321  G, 322 A-C] In  the  instant case the cause of action on  the  basis  of which  the  previous  Suit was brought  does  not  form  the foundation  of  the  present  suit.   The  cause  of  action mentioned in the earlier suit, assuming the same afforded  a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that  suit. In  that suit he could not have claimed the relief which  he seeks  in  this suit.  Hence the trial court  and  the  High Court  were not right in holding that the  plaintiff’s  suit was barred by Order 2, rule 2, Code of Civil Procedure. [322 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1953 of 1969. 320 Appeal by special leave from the, judgment and decree  dated ,October 18, 1968 of the Mysore High Court in Regular  First -Appeal No. 56 of 1963. M.   C. Chagla and R. Gopalakrishnan, for the appellant. S.   V.  Gupte,  R.  V. Pillai Sadasiv Rao  and  P.  Keshava Pillai, for respondent No. 1. The Judgment of the Court was-delivered by Hegde,  J.  This is a plaintiff’s appeal by  special  leave. The plaintiff sued for possession of the suit properties  on the  basis  of his title.  The  suit  properties  originally belonged  to the family .of one Veerbaswantji Rao  Deshmukh. He died in 1892 without male issues, leaving behind him  his widow Ratnabai and a daughter by name Lakshmibai.   Ratnabai succeeded to the estate, of her husband.  She died in  1924. On  her  death  Lakshmibai  became  entitled  to  the   suit properties.   But  one  Parwatibai,alias  Prayag  Bai   took unlawful   possession  of  the  ’suit   properties.    Hence Lakshmibai  instituted a  suit for their possession  in  the court   of  Sadar  Adalath,  Gulbarga,  against   the   said Parwatibai and obtained a decree.  In execution of the  said decree  Lakshmibai obtained delivery of the lands  described in  Schedule  11 to the plaint.  Lakshmibai  died  in  1948. Sometime  thereafter  Parwatibai also died.   The  defendant claiming to be the sister’s son of Veerbaswanth Rao Deshmukh got  himself  impleaded  as  the  legal  representative   of Lakshmibai in the execution proceedings and sought  delivery of  the  lands  mentioned  in  Schedule  I  of  the  plaint. Meanwhile   one   Vishwanath  alleging  to  be   the   legal representative  of Parwatibai got himself impleaded  in  the execution   proceedings.   Thereafter  the   defendant   and Vishwanath  entered into a compromise in pursuance of  which Vishwanath  delivered  possession of the lands  included  in Schedule  I  to  the  defendant.   Sometime  thereafter  the plaintiff  applied  to  the court to  reopen  the  execution proceedings  and implead him as the legal representative  of Lakshmibai   claiming  that  he  is  the  adopted   son   of Lakshmibai.   The executing court dismissed his  application -holding  that his remedy was by way of a sevarate suit.   A revision  taken  against that order to the  High  Court  was rejected.   Thereafter  the plaintiff filed a  suit  in  the court   of   Subordinate  District  Judge,  Bidar,   for   a declaration  that  lie is entitled to be impleaded  ’in  the execution  proceedings mentioned earlier as the  revresenta- tive  of Lakshmibai and to proceed with the execution  after setting aside the order made by the executing court. on the,

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basis  of the compromise entered into between the  defendant and  Vishwanath.   It may be noted that that  was  the  only relief  asked  for in the plaint.  The  purported  cause  of action  for the suit was -the dismissal of  the  plaintiff’s application for impleading him in 321 the  execution  proceedings.   That suit  should  have  been dismissed on the ground that it was not maintainable in law. But strangely enough it was dismissed on the ground that  it was hit by s. 42 of the Specific Relief Act inasmuch as  the plaintiff  did  not  sue for  possession  of  the  concerned property.  Thereafter the suit from which this appeal arises was instituted by the plaintiff- on the basis of his  title. The  trial court dismissed his suit in respect of the  lands mentioned  in Schedule I of the; plaint on the  ground  that the relief in question is barred by Order 2, rule 2, Code of Civil Procedure. -It decreed the suit for the possession  of the: lands mentioned in Schedule II except items 3 and 9. It also,, decreed the plaintiff’s claim in respect of the- cash amount mentioned in the plaint. Both  the plaintiff and the defendant went up in  appeal  to the  High  Court of Mysore as against the  decision  of  the trial  court to the extent that decision was  against  them. The High Court, affirmed the decision of the trial court. Before  the  trial  court  and the  High  Court,  there  was contro-versy as regards the truth of adoption pleaded by the plaintiff.,  Both  the courts have  upheld  the  plaintiff’s claim  that  he was adopted by the husband  of  Lakshniibai. That question was not reopened before us. Before the High Court, the learned Counsel for the plaintiff conceded that the plaintiff’s suit in respect of items 3 and 9  of’  Schedule II of the plaint is barred  by  limitation. Hence that question stands concluded. The only question that remains for consideration is whether- the  High  Court  and the trial court were  right  in  their conclusions  that  the plaintiff’s claim in respect  of  the lands  mentioned  in Schedule I of the plaint is  barred  by Order 2, rule 2, Code of’ Civil Procedure. We  are  of the opinion that the trial court  and  the  High Court erred in holding that the plaintiff’s suit in  respect of  the lands, mentioned in plaint Schedule I is  barred  by Order  2,  rule  2,  Code  of  Civil  Procedure.   The  suit instituted  by  the plaintiff. in the court  of  Subordinate District Judge, Bidar for a declaration that he is’ entitled to  be  impleaded  in the  execution  proceedings  as  legal representative of Lakshmibai and to proceed with the  execu- tion  proceedings, was as mentioned earlier, a  misconceived one.  It was exercise in futility.  His remedy was to file a suit  for the possession of the concerned properties on  the basis of his title. The  High Court and the trial court proceeded on  the  erro- neous  basis  that  the  former  suit  was  a  suit  for   a declaration of 322 the  plaintiff’s title to the lands mentioned in Schedule  I of the plaint.  The requirement of Order 2, rule 2, Code  of Civil Procedure is that every suit should include the  whole of  the claim which the plaintiff is entitled to make in  in respect of a cause of ,action. - ’Cause of action’ means the ’cause of action for which the suit was brought’.  It cannot be  Said that the cause of action on which the present  suit was brought is the same as that in the previous suit.  Cause of action is a cause of action which gives occasion for  and forms the foundation of the suit.  If that cause, ,of action enables  a person to ask for a larger and wider relief  than

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that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings-see  Mohd. Hafiz vs.  Mohd.  Zakaria(1). As  seen earlier the cause of action on the basis  of  which the, previous suit was brought does not form the  foundation of  the present suit.  The cause of action mentioned in  the earlier suit, assuming the same afforded a basis for a valid claim,  did not enable the plaintiff to ask for  any  relief other  than those he prayed for in that suit.  In that  suit he could not have claimed the relief which he seeks in  this suit.   Hence the trial court and the High -Court  were  not right  in  holding that the plaintiff’s suit  is  barred  by Order 2, rule 2, Code of Civil Procedure. In  view  of our above.conclusion, we have  not  thought  it ,necessary to go into the controversy whether Order 2,  rule 2, -Code of Civil Procedure is applicable to a suit under s. 42 of the Specific Relief Act. We  are  unable  to accept the  contention  of  the  learned Counsel  ’for  the  appellant that we should  allow  to  the appellant mesne profits at least from the date of the  suit. No  claim  for  mesne  profits  was  made  in  the   plaint. Therefore  we cannot go into that ,question in this  appeal. For the mesne profits, if any, due to the plaintiff, he must take separate steps according to law. In  the result this appeal is allowed and the trial  court’s decree -is modified by including therein the lands mentioned in Schedule I -of the plaint.  In other respects the  decree of  the  trial court is sustained.  The  appellant  will  be entitled to his costs both in this ’Court as well as in  the High Court. Y.P.              Appeal allowed. (1) [1922] L.R. 49 I.A. 9. 323