Rafiq Ahmad Abdul Razzak vs Mohammad Sardar Mohammad Umar

R.V. Ghuge, J.—I have heard the learned Advocate for the petitioner for quite some time. The dispute is regarding 2 regular civil suits filed before the Trial Court, in which the petitioner is a defendant. RCS No.42/1999 was preferred before the Trial Court by the respondents. The petitioner was admittedly a defendant. In paragraph No.10 of the plaint, the plaintiff had stated as under:

"That, the plaintiff could not manage an amount for filing the suit for specific performance of contract. Plaintiff will file separate suit for specific performance of contract very soon."

In less than 2 months thereafter, the same plaintiff filed RCS No.46/1999. RCS No.42/1999 was for simplicitor injunction. RCS No.46/1999 was for specific performance of contract. The petitioner / defendant had filed his written statement in both these proceedings. It clearly emerges from record that in the subsequent suit, the petitioner has not raised the ground of res-judicata under Order 2 Rule 2 of the CPC. The first suit was subjected to a complete trial and has resulted in a judgment. The second suit is today at the stage of recording of the oral evidence of the petitioner / defendant.

An application below Exh.86 was filed by the petitioner on 05/08/2014. The said application was aimed at convincing the Trial Court to frame an issue of res-judicata under Order 2 Rule 2 of the CPC and to decide as to whether the subsequent suit could be said to be barred by Order 2 Rule 2 of the CPC on the ground of being hit by res-judicata.

By the impugned order dated 26/08/2014, the said application Exh.86 was rejected. Contention of the petitioner is that the issue of res-judicata is purely a legal issue, which can be raised at any time in the suit or even thereafter in appeal, which is an extension of the civil suit. It is not in dispute that the issues have been cast long ago.

The petitioner, therefore, submits that a valuable right which vests in the petitioner, stands taken away in view of the impugned order and the respondents/plaintiffs would stand benefited on account of a perverse and erroneous order. It is, therefore, prayed that the impugned order be quashed and set aside and Exh.86 be allowed with a direction to the Trial Court to frame the issue of maintainability on the plea of res-judicata.

Having heard the learned Advocate for the petitioner, I have gone through the impugned order and the documents placed on record, which have been pressed into service by the petitioner. Paragraph No.10 of the first suit contains a clear indication that the plaintiff was preparing a second suit for specific performance of contract. This further indicates that the plaintiff has not sprung a surprise on the petitioner. It is also not disputed that in less than 2 months, the said plaintiff preferred the second suit seeking specific performance of contract. It is also not in dispute that going by the prayer clauses in the first suit, the same was restricted only to the extent of seeking perpetual injunction and for restraining the petitioner from interfering with the peaceful possession of the plaintiff over the suit land.

I also find that when the petitioner was aware of the possibility of filing a second suit and has filed a written statement in response to the second suit, the petitioner could have, with promptitude, raised the issue of res-judicata under Order 2 Rule 2 of the CPC. Issues are to be cast on the basis of primarily the pleadings of the parties and also on the basis of documents placed on record and such material available as would assist the Trial Court in framing the issues. For 15 years, the petitioner has slept over this issue and has not raised even a whisper as regards res-judicata. The written statement filed in the second suit does not indicate as to whether the petitioner ever desired to raise the issue of res-judicata.

In the impugned order, the Trial Court, upon considering the case papers, has concluded that the first suit was purely for seeking perpetual injunction on the ground that the petitioner / defendant was creating an obstruction and interference in his peaceful possession of the suit property. The second suit, in which the impugned order has been passed, is for specific performance of contract and the Trial Court did not find any such issue, which could co-relate the second suit with the first. The Trial Court has also dealt with the issue of due diligence. 15 years of deep slumber on the part of the petitioner, convinced the Trial Court that application Exh.86 was not a bonafide application.

The petitioner has relied upon the judgment of the Apex Court in the case of State Bank of India Vs. Gracure Pharmaceuticals Ltd., , wherein the object of Order 2 Rule 2 of CPC was held by the Apex Court to be aimed at avoiding multiplicity of proceedings and in order to avoid vexing the parties over and again in a litigative process. The Apex Court thus ruled that Order 2 Rule 2 would render unity of all claims based on the same cause of action in one suit. Though I am in respectful agreement with the view laid down by the Apex Court, I am afraid, with the facts of the case before me, that ratio would not apply to this case.

The first suit has already been decided which was purely for seeking perpetual injunction. The second suit is at the stage of recording of the evidence of the petitioner / defendant. Without their being any pleadings on record, this Court would not be within its powers to direct the Trial Court to frame an issue thereby causing prejudice to the plaintiff.

The petitioner has also relied upon the judgment of this Court in the case of Gajanan R. Salvi Vs. Satish Shankar Gupte and Others, . In the said case, this Court dealt with the controversy of a suit for specific performance of agreement coupled with relief of possession in the face of an earlier suit having been filed for injunction simplicitor. This Court came to a conclusion that the reliefs claimed in the later suit were based on the pleadings and the allegations made in the previous suit where such reliefs can be prayed for. The later suit was therefore barred by Order 2 Rule 2 of CPC.

In the facts of the present case, I am unable to accept the contention of the petitioner that the issue of res-judicata would be purely a question of Law. In the instant matter, since the petitioner seeks to co-relate the second suit with the first, which is already decided, it was imperative on the part of the petitioner to set out necessary pleadings to that extent which would have aided the Trial Court to frame an appropriate issue. There have been no pleadings in the written statement. In the peculiar facts of this case, the issue of res-judicata would not rest on purely the provisions of Law, but would necessarily be a mixed question of facts and Law since the second suit is being co-related with the first. In the absence of any pleadings, no issue can be cast by the Trial Court. It is, in these circumstances that the contentions of the petitioner are rendered unsustainable.

I do not find that the impugned order could be termed as perverse or erroneous in the supervisory or writ jurisdiction of this Court. As has been laid down by the Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, and in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, , merely because a 2nd view is possible, the impugned order cannot be termed as perverse or erroneous. The petition is, therefore, devoid of merit and is dismissed.