TRILOK CHAND vs DHANDEV

THE challenge in this appeal is to the order of the learned District Forum/ Mandi, dated 19.3.96, whereby the learned District Forum has dismissed the complaint of the complainant/appellant (hereinafter to be referred to as the complainant) on the ground that the present complaint is barred under Order 2 Rule 2 Civil Procedure Code. According to the learned District Forum, the complainant should have sought the relief of compensation from the Civil Court by including the same in the suit for mandatory injunction which he has filed before coming to the Forum.

WE have heard the learned Counsel for the respondents Mr. B.K. Sharma, seen the record and considered the order of the learned District Forum. In our opinion, the learned District Forum has fallen in error by having relied upon the Order 2 Rule 2 Civil Procedure Code in the facts and circumstances of the case. In Gurbax Singh v. Bhooralal, AIR 1964 SC 1810 (V 51 C 254), the Hon'ble Supreme Court has held that: "As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that a plea of a bar under Order 2 Rule 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 causes of action in the two suits. The cause of action in the previous suit 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 common ground that the pleadings in the earlier suit has not been filed by the appellant in these proceedings as evidence in support of his plea under Order 2 Rule 2 Civil Procedure Code. Therefore, we cannot identify the cause of action in earlier suit and the present proceedings. There is no material on record to show that Order 2 Rule 2 Civil Procedure Code is, therefore, applicable in the light of the judgment of the Supreme Court.

In the light of what is discussed above, the appeal is accepted and the order of the learned District Forum is set aside and the District Forum is directed to decide the matter afresh in accordance with the law.

THE learned District Forum shall also be at liberty to determine whether a tenant in the present case can be termed as a consumer and can maintain the complaint before this Forum. THE parties are directed to appear before 23.12.96 before the learned District Forum. Appeal accepted.