MD. ABDUL MALEK vs RAFIQUL RAHMAN and ORS

Heard Mr. M.H. Rajbarbhuiyan, learned counsel for the appellant. Also heard Mr. D. Choudhury, learned counsel appearing for the respondent.

By this appeal under section 96 CPC, the appellant has challenged the judgment and decree dated 22.12.2005 passed by the learned Ad-hoc

Additional District Judge (FTC), Nagaon in M.S. No.1/2002, by which the Money Suit filed by the appellant was dismissed.

The case projected by the appellant in the plaint of Money Suit No.1/2002 is that the respondent No.1 and the predecessor-in-interest of the

respondent No.2 had entered into a registered agreement dated 17.06.1997, by virtue of which the room measuring 8 ft x 11 ft, to be constructed on

the land was let out to the appellant. By a subsequent agreement dated 03.11.1999, out of the agreed sum of advance payment of Rs.1,30,000/- the

appellant paid a sum of Rs.75,000/- as advance to the respondent No.1 and the predecessor-in-interest of respondent No.2. Therefore, by filing

Money Suit, the appellant had prayed for recovery of Rs.86,375/- towards refund of the advance of Rs.75,000/- with interest @ 18% per annum. It

was stated in the plaint that as the construction was not in accordance with law with the agreement, the appellant had filed T.S. No.93/2000 before

the Court of learned Civil Judge, (Jr. Division), Nagaon seeking injunction.

The respondent No.1 and the predecessor-in-interest of respondent No.2 contested the money suit by filing written statement.

On the basis of pleading, the learned Trial Court framed the following issues:-

 (1) Is there any cause of action for the suit?

 (2) Whether the suit is maintainable?

 (3) Whether the suit is barred by limitation?

 (4) Whether the suit is bad for defect of parties?

 (5) Whether the defendants agreed to let out the suit room to the plaintiff for business purpose by entering into a tenancy agreement with the

plaintiff and whether in pursuance of the said agreement the plaintiff paid a sum of Rs.75,000/- to the defendant as advance for the construction of the

suit room?

 (6) Whether the plaintiff is entitled to a decree as prayed for?

 (7) To what relief, if any, the parties are entitled to?

In support of the case, the appellant had examined 4 witnesses including himself as PW-1. The PW-4 was not cross-examined by the respondent

and the respondent did not adduce any evidence.

Issues No. 1 and 2 were taken up together. By referring to the pleadings, evidence, the previously instituted T.S. No. 98/2000, as well as the

Agreement dated 17.06.1997 (Exbt.-1), the learned Trial Court had held that there was no condition in the Tenancy Agreement for refund of the

advance amount and it was held that there was no cause of action of the suit for getting the advance amount of Rs.75,000/- with interest which was a

part of Exbt.-1 i.e. Agreement dated 17.06.1997, Exbt.-2 i.e. agreement dated 03.11.1999 and T.S. No.93/2000. Accordingly, the suit was held to be

not maintainable as there was no cause of action. In view of the said finding, the other issues were not decided as the suit was held to be not

maintainable.

The learned counsel for the appellant as well as the learned counsel for the respondent has made their submissions.

On the basis of the submissions made by the learned counsel for both sides, the following point of determination arises for consideration by this

Court in this appeal - Whether the finding of lack of cause of action as decided by the learned Trial Court in respect of issues No. 1 and 2 is

sustainable?

The records of the suit reveals that not only the appellant had referred to the proceeding of T.S. No.93/2000 in the plaint of the present suit, but

evidence was also led by PW-1 i.e. the appellant, who admitted that he had filed T.S. No.93/2000. While deciding the issues No.1 and 2, the learned

Trial Court had arrived at a categorical finding that from the evidence of the appellant, T.S. No.93/2000 and Misc (J) Case No.44/2000 were pending.

In view of the pendency of the previous suit, the learned Trial Court had held that there was no cause of action in the present suit.

As per the provisions of Order II Rule 2 CPC, it is provided that every suit shall include the whole of the claim which the plaintiff is entitled to

make in respect of the cause of action. Therefore, for the purpose of arriving at a finding that there was no cause of action for the suit, it is required

that the learned Trial Court would to make an endeavour to find out whether both the suits were in respect of the same cause of action. The appellant

did not bring on record the plaint of the previous suit. The respondents had also made no endeavour to prove the cause of action which was contained

in the previous suit, notwithstanding that the respondents had specifically pleaded in their written statement that the present suit was barred under

Order II Rule 2 CPC.

The Hon’ble Supreme Court, in the case of Alka Gupta Vs. Narender Kr. Gupta, (2010) 10 SCC 141, had held that the provision of Order II

Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action, but not claimed. In the case of the Gurinder Pal Vs.

Jagmittar Singh, (2004) 11 SCC 219, it has been held that the provision of Order II Rule 2 CPC bars the remedy of the plaintiff, therefore, the said

provision must be strictly construed.

Therefore, to invoke the provision of Order II Rule 2 CPC, the learned Trial Court is required to arrive at a finding that the previous suit was on

the same cause of action. It is well settled law that a cause of action must include a whole of a claim which would be necessary to be proved by the

plaintiff so as to enable him to obtain a decree. If requires an authority on the same, the case of Dadu Dayalu Mahasabha Vs. Mahant Ram Niwas &

anr, (2008) 11 SCC 753, may be referred to.

As per the pleadings on record, the Agreement for Tenancy vide Exbt.-1 was entered on 17.06.1997. As per the case of the appellant, the

advance amount for the suit premises was settled at Rs.1,30,000/- by agreement dated 03.11.1999 and part of payment of Rs.75,000/- was made as

per the said Agreement dated 03.11.1999 (Exbt.-2). Therefore, unless the reference to which date the cause of action arose is decided by the learned

Trial Court, it would be very difficult for this Court to concur at a finding of the learned Trial Court in its decision of issues No.1 and 2 that there was

no cause of action in the present suit although the suit was not maintainable in the present form and manner.

It is in this context, that it would be relevant to quote paras 8 to 15 of the case of Alka Gupta (supra):

We may extract Order 2 Rules 1 and 2 of the Code for ready reference:

Frame of suit: Every suit shall as far as practicable be framed to afford ground for final decision upon the subjects in dispute prevent further

litigation concerning them. so as and to

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 reliefs: 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 relief so omitted."" The

object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action.

Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is

to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on

the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.

This Court in Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810] held : ""In order that a plea of a bar under O. 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 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 latter suit is

based there would be no scope for the application of the bar."" Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is

framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit

should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that

the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the

Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate

bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the

plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs

flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the

High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is

unsustainable.

II. The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under order 2 Rule 2 of the

Code was not attracted.

The first suit was for recovery of balance price under an agreement of sale. The agreement dated 29.6.2004 was not an agreement relating

todissolution of the firm constituted under deed of partnership dated 5.4.2000, or settlement of the accounts of the said partnership. The agreement of

sale made it clear that it related to sale of the undivided half share in the second floor at Rohini, 50% (property bearing No.8, Pocket & Block C- 9,

Sector-8, Rohini, Delhi-110085) and 50% share of the business that was being run in that premises, that is premises at Rohini. The second suit was for

rendition of accounts in pursuance of the dissolution of the firm of Takshila Institute constituted under deed of partnership dated 5.4.2000, carrying on

business at Bhera Enclave, Paschim Vihar, Delhi-110087 and for payment of the amounts due on dissolution of the said firm.

The pleadings in the two suits make it clear that both parties proceeded on the basis that the partnership between appellant and respondent under

deed dated 5.4.2000 was only in regard to the business run under the name and style of `Takshila Insittue' at Bhera Enclave, Paschim Vihar, Delhi-

110087. The appellant proceeded on the basis that the property at Rohini and the business carried therein under the name of Takshila Institute, was

not a part of the partnership business under deed dated 5.4.2000. Even the respondent in his written statement in the first suit asserted that the

partnership dated 5.4.2000 between appellant and respondent did not extend to Takshila Institute at Rohini or other places. In fact appellant clearly

contended that respondent was carrying on business under the same name of Takshila Institute at Janakpuri, Ashok Vihar and Kalu Sarai in Delhi and

also at Dehradun and Palampur, but they were not partnership businesses. The respondent in his written statement asserted that he alone was

carrying on business at those places under the name of Takshila Institute. Therefore, the court could not, before trial, assume that the sale of

appellant's share in the immovable property at Rohini and the goodwill and assets of the business carried on at Rohini under the name of Takshila

Institute should be taken as relinquishment or retirement or settlement of share in regard to the partnership business of Paschim Vihar Takshila

Institute.

The cause of action for the first suit was non-payment of price under the agreement of sale dated 29.6.2004, whereas the cause of action for the

second suit was non-settling of accounts of a dissolved partnership constituted under deed dated 5.4.2000. The two causes of action are distinct and

different. Order 2 Rule 2 of the Code would come into play only when both suits are based on the same cause of action and the plaintiff had failed to

seek all the reliefs based on or arising from the cause of action in the first suit without leave of the court. Merely because the agreement of sale

related to an immovable property at Rohini 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 Pachhim Vihar, New Delhi, also under the same name of Takshila Institute, it cannot be assumed that the two

suits relate to the same cause of action. Further, while considering whether a second suit by a party is barred by Order 2 Rule 2 of the Code, all that is

required to be seen is whether the reliefs claimed in both suits arose from the same cause of action. The court is not expected to go into the merits of

the claim and decide the validity of the second claim. The strength of the second case and the conduct of plaintiff are not relevant for deciding

whether the second suit is barred by Order 2 Rule 2 of the Code.

III. The second suit was not barred by constructive res judicata.

The learned trial bench passed the order on 13.3.2009 on the preliminary issue (Issue No.1) relating to res judicata. But there is absolutely no

discussion in the order of the learned Single Judge in regard to the bar of res j udicata except the following observation at the end of the order: ""Of

course it cannot be said that the present suit is barred by res judicata inasmuch as the said claims were not decided in that case. But the principle of

constructive res judicata is applicable."" This was not interfered by the appellate bench. Both proceeded on the basis that the suit was not barred by res

judicata, but barred by principle of constructive res judicata without assigning any reasons. Plea of res judicata is a restraint on the right of a plaintiff to

have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res

judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity

to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant plaintiff an opportunity

to meet the case based on such plea.

Res judicata means `a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in section 11,

relevant portion of which is extracted below (excluding Explanations I to VIII):

Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue

in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court

competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such

Court"" Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or

issue:

(i) The matter must be directly and substantially in issue in the former suit and in the later suit.

(ii) The prior suit should be between the same parties or persons claiming under them.

iii) Parties should have litigated under the same title in the earlier suit.

 (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit.

 (v) The court trying the former suit must have been competent to try particular issue in question. To define and clarify the principle contained in

Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression `former suit' refers to a suit which had been

decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be

determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly

and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party.

Explanation IV provides that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed

to have been a matter directly and substantially in issue in such suit. The principle of constructive res judicata emerges from Explanation IV when

read with Explanation III both of which explain the concept of ""matter directly and substantially in issue"".

 15. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or

impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the

former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue

directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if

it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of

constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas

Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. The principle underlying

Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard [1947 (2) All ER 257] thus:....it would be accurate to say that res judicata for

this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the

subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to

be started in respect of them. (emphasis supplied) In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [1990 (2) SCC

715], a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat

Mandal [1986 (1) SCC 100) thus: ""an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter

which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation

and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence."" In this case the High

Court has not stated what was the ground of attack that plaintiff-appellant ought to have raised in the first suit but had failed to raise, which she raised

in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata. IV. A suit cannot be

dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff.â€​

In the context of the observations made by the Hon’ble Apex Court on the case of Alka Gupta (Supra) as extracted above, it was incumbent

on the part of the learned Trial Court to frame an issue on the maintainability of the suit under Order II Rule 2 CPC, the said issue was not framed

despite the specific plea taken by the respondent. Because of the lack of the specific issue, the parties did not get any opportunity to lead evidence as

to whether both the suits were based on the same cause of action.

Under the circumstances, this Court cannot be persuaded to concur with the finding recorded by the learned Trial Court on issues No. 1 and 2

wherein it was held that there was no cause of action for the present Money Suit for getting back the advanced amount of Rs. 75,000/-, which was

held to be a part of the Exbt.-1, Exbt.-2 and T.S. No.93/2000. The said finding was recorded by the learned Trial Court without perusing the plaint of

T.S. No.93/2000. Therefore, the finding on issues No. 1 and 2 deserves to be set aside, which this Court hereby does. However, this Court is inclined

to remand back the suit to the learned Trial Court with a direction to frame additional issues to the following effect: Whether the present suit i.e. is hit

by the principles of Order II Rule 2 CPC on the failure of the plaintiff to include whole of the claim in connection with T.S. No.93/2000?

This order of remand is in consonance to provision of Order XLI Rule 23-A CPC. On receipt of the Trial Court records on remand, the learned

Trial Court shall grant an opportunity to the parties to lead evidence only in respect of this additional issue and decide all the issues afresh in

accordance with law.

The appeal stands allowed by ordering a remand as indicated above. Resultantly, the impugned judgment and decree dated 22.12.2005, passed by

the learned Ad-hoc Additional District Judge (FTC), Nagaon in M.S. No.1/2002 is set aside.

The parties who are duly represented by their learned counsel shall appear before the Court of the learned District Judge, Nagaon on 20.04.2018,

because it is seen that the suit is valued at Rs.86,375/- (Rupees Eighty six thousand three hundred and seventy-five only), therefore, upon remand, the

suit is required to be tried by the competent Court. Hence, let the LCR be returned back to the learned Court of District Judge, Nagaon who shall

relegate the suit to the appropriate Court having pecuniary jurisdiction for disposal of the suit on remand.