Suresh Yadav vs Virendra Kumar Yadav and Others

K.K. Trivedi, J.—This order will govern the disposal of Civil Revision No. 240/2010 and Civil Revision No. 242/2010. For the purposes of convenience, the facts are taken from Civil Revision No. 200/2010. Since the facts of these three Civil Suits are almost similar and on the common grounds, the applications made by the applicant under Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as CPC for short) were rejected by the trial Court, the controversy being the same, by this common order all the Civil Revisions are being disposed of.

The respondents No. 1 and 2 have fled a suit claiming inter alia the reliefs to the effect of declaration of their title on the suit land and declaration that the agreement dated 7.7.1997 is null and void and the agreement executed by the defendant No. 1/applicant on 20.6.2000, was not binding on the respondents/plaintiffs. The suit was contested by the defendant No. 1/applicant mainly on the ground that earlier a suit was fled by one Amar Singh, son of the respondents/plaintiffs against the defendant No. 1/applicant and the said suit was withdrawn without reserving any right. The said suit was fled by said Amar Singh in his capacity as Power of Attorney of the plaintiffs/respondents and they were also impleaded as defendants in the said suit, who were proceeded ex-parte. Since the suit was withdrawn, for the very same cause of action, a subsequent suit could not be fled by the respondents/plaintiffs.

For the purposes of dismissal of the suit, an application under Order 2 Rule 2 of CPC was fled by the defendant No. 1/applicant raising a plea that by estoppel the respondents/plaintiffs were estopped to file the suit in terms of the provisions of order 2 Rule 2 CPC. By the impugned order, such an application fled by the defendant No. 1/applicant has been rejected. Hence, these revisions.

It is contended by learned counsel for the applicant that though earlier suit was fled by Power of Attorney holder of the respondents/plaintiffs, but since the executants of the Power of Attorney were also impleaded as party in the said suit, all the pleas whatever were available to the said persons were required to be raised in the suit. Believing bonafidely on the Power of Attorney, certain actions were taken and, therefore, if the suit was withdrawn without reserving any rights, even the executants of the Power of Attorney, the present respondents/plaintiffs in subsequent suit were estopped to raise any plea in respect of said cause of action nor any suit was maintainable in terms of provisions of Order 2 Rule 2 of CPC. Such a plea was effectively raised by the defendant No. 1/applicant, but the trial Court committed an error of law in not considering such pleas in appropriate manner and rejecting the application of the defendant No. 1/applicant, therefore, the order impugned is bad in law and is liable to be set aside. It is contended that the application fled by the defendant No. 1/applicant is liable to be allowed.

Per contra, it is contended by learned counsel appearing for respondents/plaintiffs that even if earlier suit was fled by Power of Attorney of the respondents/plaintiffs, since the claim made in the said plaint was altogether different, no decision on the said suit was delivered on merits, therefore, merely because the said suit was withdrawn, the respondents/plaintiffs could not be estopped to file a suit challenging some action and seeking declaration of their title on the suit land, by application of principle of estoppel. It is contended that in view of this position of law, the application fled by the defendant No. 1/applicant was rightly rejected and, therefore, the trial Court has committed no error in rejecting such prayer of the applicant. The order impugned need no interference by this Court in exercise of revisional power.

Heard learned counsel for the parties at length and perused the record.

It is not in dispute that a subsequent suit was fled by the respondents/plaintiffs, but as has been indicated herein above, declaration of title is claimed by the respondents/plaintiffs in the said suit. A further declaration is claimed to the effect that certain agreement executed by their Power of Attorney after the cancellation of Power of Attorney executed in his favour are illegal and are not binding on the respondents/plaintiffs. An injunction is sought in respect of making of construction over the land in suit. The earlier suit fled by the Power of Attorney holder of respondents/plaintiffs by name Amar Singh was not for the said relief. The prayer made in the said suit was that a decree of declaration be granted to the effect that the Power of Attorney dated 29.5.1989 is non-effective, null and void in light of the registered cancellation deed dated 31.10.2002. An injunction was also claimed for not making any correspondence on the strength of said Power of Attorney. A further declaration was claimed that the said Attorney be declared to be competent to act according to the Power of Attorney dated 31.10.2002.

A comparison to these two reliefs clearly indicates that the earlier suit was not fled for declaration of the title of the original holder of the land though they were impleaded as a party defendant in the suit fled by the Power of Attorney holder in the year 2002. Distinct reliefs were claimed in the earlier suit which otherwise could not have been claimed by the Power of Attorney holder for himself. Therefore, if such a suit was withdrawn, even without reserving any right to file a subsequent suit, the original holders of the land, being not the plaintiffs in the suit would not be estopped by application of principle of estoppel to file a suit for declaration of their title over the land in suit.

Much is said about the factual aspect, but those aspects were neither tested on earlier occasion when the suit was fled by the Power of Attorney simply because the said suit was withdrawn by the Power of Attorney of the respondents/plaintiffs without its adjudication on merits. Even if the issues were framed, they were not settled by the Court on merits. It was also not the case that the suit was fled by the present respondents/plaintiffs through their Power of Attorney holder in their own name and though they could have raised the pleas with respect to the claim of declaration of their title, they have not raised such pleas in earlier suit. If that is the situation, the principle laid down by the Apex Court in the case of Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd., , would not be attracted and, therefore, the reliance placed by learned counsel for the applicant is misconceived. On the other hand, the law as laid down by the Apex Court in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and Another, , relied on by learned counsel for respondents No. 1 and 2 would squarely be applicable in the present case. Distinguishing the features and the applicability of the principle of estoppel and principle of res judicata, the Apex Court has categorically said that unless issues which could have been raised in earlier suit and have not been raised by the very same party, the principle of estoppel would be applicable in terms of Order 2 Rule 2 of CPC even in case where the leave is granted by the Court and a subsequent suit would not be maintainable. However, if the pleas raised in a suit have already been tested by the Court and negatived, the subsequent suit would be barred under the principle of res judicata.

Here in the case in hand, neither the respondents/plaintiffs were the plaintiffs in earlier suit nor there was any claim of declaration of title made by the Power of Attorney holder, on behalf of respondents/plaintiffs. If issues in that respect were raised by the very same party in the earlier suit, the same were not to be re-raised in a subsequent suit by the very same party. However, the earlier suit was not fled by the Power of Attorney on behalf of the executant of the Power of Attorney holder, the original plaintiffs in subsequent suit. Mere impleadment of such persons as defendants in suit fled by Power of Attorney holder, will not create a bar for fling of a suit by the original holders of the land in suit, for declaration of their title.

In view of the aforesaid analysis, no error of law is committed by the trial Court in rejecting the application fled by the defendant No. 1/applicant for dismissal of the suit as barred under Order 2 Rule 2 of CPC.

The revision fail and are hereby dismissed. However, there shall be no order as to costs.