IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 380 of 2002 Reserved on: September 11, 2008 Date of Decision : October 1, 2008 Virender Kumar Sewal & another …Appellants. Versus: Shanti Devi Paul & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Bimal Gupta, Advocate. For respondent No.1 Ms. Sunita Sharma, Advocate. SANJAY KAROL, JUDGE. In terms of the impugned judgment dated 29.6.2002, passed in Civil Appeal No.51-N/13 of 2000, the Additional District Judge, Sirmaur District at Nahan, H. P. has set-aside the judgment and decree dated 2.8.2000 passed by the Sub Judge Ist Class, Nahan, in Civil Suit No. 97/1 of 1999/98 and after returning the findings on Issue No.5 and holding that the plaintiff’s suit was not barred under the provisions of Order 2 Rule 2 CPC, remanded the matter back to the trial Court for disposal in accordance with law. Smt. Shanti Devi, contesting respondent No.1 herein (hereinafter referred to as ‘the plaintiff’) purchased land from the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 appellants herein (hereinafter referred to as ‘the defendants’). On the strength of the Sale Deed, the plaintiff filed Civil Suit No.62/1 of 1986/88/1 of 1987 titled as Smt. Shanti Devi vs. Pritama Katoch and Ors, claiming a right of passage over Khasra No.358/1 belonging to Smt. Pritama Katoch. In the said suit, the defendants who were also arrayed as proforma defendants, supported the plaintiff. However, after trial, the plaintiff’s suit was dismissed vide judgment and decree dated 10.12.1992 passed by the Sub Judge Ist Class, Sirmaur District at Nahan, H. P. holding that the plaintiff had no right of passage through Khasra No.358/1. The same has attained finality. Consequently, thereafter plaintiff filed the instant Civil Suit No. 97/1 of 1999/98 tiled as Shanti Devi vs. Virender Kumar & others, claiming a right of passage through the defendants’ land. The suit was contested by the defendants and on 29.7.1999, the trial Court framed the following issues:- 1. Whether the plaintiff has right of way by easement of necessity from the land/property of defendants No.1 and 2 as prayed for? …OPP 2. Whether the defendants are bound to provide way to the plaintiff being her vendors as alleged? ……OPP 3. Whether the plaintiff is entitled for relief of permanent prohibitory injunction as prayed for? …..OPP 4. Whether the present suit is hit by principles of res judicata in view of judgment and decree dated 10.12.1992 in civil suit No. 62/1 of 86 and 88/1 of 1987.? …OPD-1 3 5. Whether the present suit is barred by the provisions of Order 2, Rule 2 CPC? ….OPD-1 6. Whether the suit is not legally maintainable as alleged? ……OPD-1 7. Whether the suit is bad for mis-joinder of parties? ………OPD-1 8. Whether the plaintiff is estopped to file the suit by his act and conduct? …….OPD-1 9. Whether the plaintiff has no cause of action and locus standi to file the suit? ……OPD-1 10. Whether the defendants are entitled to special costs u/s 35-A CPC? …….OPD-1 11. Whether the suit is within limitation? …OP Parties 12. Whether the plaintiff has been using the path shown with navy blue colour in the site plan attached by the defendants? …..OPD 13. Whether the plaintiff can claim passage through the property of Sulochna Devi shown with sky blue colour in the site plan attached? …OPD 14. Relief. Issues No. 4, 5 & 6 were treated as preliminary issues. Appreciating the material on record, Sub Judge Ist Class, Nahan, Distt. Sirmaur, H.P. in terms of judgment dated 2.8.2000 dismissed the plaintiff’s Suit, holding that the same was barred by the provisions of Order 2 Rule 2 CPC. In an appeal filed by the plaintiff, the first Appellate Court, after affording due opportunity to the parties, reversed 4 the findings on the said issues and remanded the matter for disposal in accordance with law. I have heard the learned counsel for the parties and also perused the record. The Sale Deed dated 1.6.1981 entered into between the plaintiff and the defendants specifically records as under:- “The right of way which is passing through Kh. No. 358 and shown in red colour in the Tatima attached herewith and shown as Kh. No. 358/1, which is approach way to the sold property and also to remaining and adjacent property of the vendors, shall be used as before, as right of way by both vendors and vendee. And the vendee shall also have a right on the drain running in Kh. No.360 along with all other right of easement subject to above mentioned right of easement and appurtencies to the sold property.” On the strength of the said Sale Deed, the plaintiff filed a Civil Suit No. 62/1 of 1986 against Smt. Pritama Katoch and others. In the said suit, the trial Court framed the following issues:- 1) Whether the plaintiff has a right of way through the suit land as alleged? …OPP 2) Whether the suit is bad for non-joinder of necessary parties, if so, its effect? ……..OPD 3) Whether the suit is hit by principle of constructive resjudicata as alleged? …..OPD 4) Whether the suit is collusive with the defendants No. 2 and 3, if so its effect? ….OPD 5 5) Relief. While deciding issue No.3, the Court observed that in the previous suit instituted by Smt. Pritama Katoch against the defendants (appellants herein), in terms of judgment and decree dated 16.12.1986, the right of the “defendants” to claim right of passage through Khasra No. 358 stood rejected. On merits, it was so held that the plaintiff had no right in law to the passage over the land in question. Taking into account the principles of law laid down by the Courts in Kewal Singh v. Lajwanti {1980 (1) SCC 290}, State of Maharashtra and another v. National Construction Co. and another {1996(1) SCC 735}, Shivashankar Prasad Sah and another vs. Baikunth Nath Singh and others {AIR 1969 SC 971}, Piar Singh vs. Sarju Singh & another {2000(1) SLJ 566}, Pulavarthi Venkata Subha Rao and others vs. Valluri Jagannadha Rao {AIR 1967 SC 591}, Gurbax Singh v. Bhooralal {AIR 1964 SC 1810}, Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and Others {AIR 1965 SC 295}. The question which needs to be considered is as to whether the causes of action in the two suits are identical. The Apex Court in Inacio Martins vs. Narayan Hari Naik and others 1993(3) SCC 123 has held as under:- “Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the 6 claim and the reliefs. But the rule does not preclude a second suit based on a distinct cause of action. The doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff’s duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Further, in Kunjan Nair Sivaraman Nair vs. Narayanan Nair and Others, 2004(3) SCC 277, it has been laid down that an important criterion for determining the question as to whether the cause of action in the subsequent suit is identical with that in the first suit is as to whether the same evidence would maintain both actions. It has been further held that the expression “cause of action” has acquired a judicially settled meaning. In the restricted sense “cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff-respondent to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, is comprised in “cause of action”. 7 The doctrine of res judicata differs from the principle underlying Order 2 Rule 2 in that the former places emphasis on the plaintiff’s duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The Court further held : “Res judicata pro veritate accipitur” is the full maxim which has, over the years, shrunk to mere “res judicata”. Section 11 CPC contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debt bis vexari pro una et eadem causa” (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.” Further, the Apex Court in S. Nazeer Ahmed v. State Bank of Mysore and others 2007(XI) SCC 75 has clarified that Order 2 Rule 2 is directed to secure the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they may arise from the same transaction. 8 For the purpose of adjudication and proper appreciation, the pleadings of both the suits are reproduced. In Civil Suit No. 62/1 of 1986, in para-2, the plaintiff (respondent No.1 herein) pleaded and prayed as under:- “2. That the vendors proforma defendants 1 and 2 also granted the plaintiff a right of way which passes through khasra No. 358 and shown in red colour in the Tatima attached with the sale deed as Khasra no. 358/1 for ingress and egress from and to the property and houses sold to her and described fully in para No.1 of the plaint above. This is the only passage/right of way to enjoy the property sold to the plaintiff by proforma defendants.” PRAYER “It is, therefore, prayed that a decree for injunction may kindly be granted in favour of the plaintiff and against the defendant No.1 permanently restraining her from causing any interference in the path of the plaintiff covered by Khasra No.358/1 situated at Mohal Rani Tal Nahan in any manner whatsoever, either herself or through her agents, servants and relatives. The cost of the suit may also be granted in her favour. Any other relief to which the plaintiff is found entitled either in law or equity be also granted in her favour.” In the instant suit, in paras 4, 5 and 7, the “plaintiff” has pleaded and prayed as under:- “4. That the defendants No.1 and 2 in the sale deed stated in para No.2 above had granted a right of way for ingress and egress from and to the property sold to the plaintiff through Khasra No.358/1 owned by 9 Smt. Pritama Katoch and others, knowing fully well that the defendants had no such right in the same, thus committed an act of fraud upon the plaintiff. The said Pritama Katoch and others, had not allowed the plaintiff and defendants to pass or re-pass through their land of Khasra No. 358/1. Though, the parties in the suit had contested their claim with aforesaid Pritama Katoch and others, in respect of Khasra No. 358/1 in the courts of law, but could not get the relief. 5. That the plaintiff for ingress and egress to her property from the street/road passes through the passage/way from the land/property of defendants No.1 and 2 comprised of khasra Nos.1214, 1217, 1218, 1262 to 1272, 1261 and 1287 as this is the only passage/way to enjoy the property sold to the plaintiff by the defendants No.1 and 2. The property of plaintiff is so situated that it cannot be used at all without enjoying an easement over the property of defendants as stated above being absolute necessity. 7. That there does not exist any way to approach the property/houses of the plaintiff except the way through the property of defendants. After the severance of the single unit the situation of the plaintiff’s property is so that it cannot be used at all without the easement of necessity claimed in the land of the defendants.” PRAYER “It is, therefore, respectfully prayed that a decree for declaration may kindly be granted in favour of the plaintiff and against the defendants No. 1 & 2 to the effect that the plaintiff has a right of way from the land/property of defendants No.1 & 2 comprised of Khewat Khatauni No.1/1 Khasra Nos.1214, 1217, 1218, 1262 to 1272, Khewat Khatauni No.1/2 Khasra 10 Nos. 1261, 1287 total measuring 992-39 sq.meters to reach her house and property and come back to main road/street comprised of Khewat Khatauni No.65/101 khasra Nos. 1215, 1216, 1219, 1220, 1221, 1222 and 1223 measuring 131-09 sq. meters situated at Mohal Ranital Nahan by way of easement of necessity, as there exists no other way to approach the property/ houses of the plaintiff except the way through the property of defendants. Otherwise, too the defendants are legally bound to provide way to the plaintiff to enjoy her property being her Vendors with a consequential relief of permanent injunction restraining the defendants from causing any interference/obstruction in the way of the plaintiff passes through the land of defendants stated above either themselves or through their agents, servants and relatives like defendant No.3. The cost of the suit may also be granted in her favour. Any other relief to which the plaintiff is entitled under law may also be granted.” The cause of action and the subject-matter in both the suits incidentally distinct and separate. The plaintiff was pleading a right of passage by way of easement of necessity in respect of the passage. No doubt, it is true that the defendants, proforma defendants in the earlier litigation, were supporting the plaintiff but however, the fact of the matter is that the subject-matter of the earlier suit was totally different and other than the subject- matter of the suit in question. There, on the strength of the representation meted out by the defendants, as vendor, and on 11 the strength of the Sale Deed, the plaintiff was pursuing the cause of action which had resulted due to the obstruction of the plaintiff’s passage through the land belonging to Smt. Nirmala Katoch. It was only when it was found that the plaintiff had no right, the instant suit claiming a right of passage through the defendants’ land was instituted. It is true that in the earlier litigation the plaintiff had pleaded that there is no other passage except for the one for which the suit had been filed but it is equally true that at the time of filing of the earlier suit, there was no “cause of action” inter se between the parties in relation to the present passage. Whether the plaintiff’s suit, on merits, has to be dismissed on this account is a matter to be adjudicated and decided by the trial Court but the plaintiff cannot be non- suited at the threshold on the ground that the instant suit is barred in law. It is not the case of the defendants that they had opposed the plaintiff’s right to the passage through their land at the time of initiation of the earlier proceedings. Therefore, there was no question for the plaintiff to have relinquished, much less intentional any portion of her claim at that time. Keeping in view the ratio of law laid down by the Apex Court in various pronouncements, I am of the considered view that the cause of action for filing the instant suit was totally different distinct, separate and in fact, had not arisen at the time of filing of the earlier suit. No doubt, in the earlier suit, the plaintiff pleaded the right of easement only through Khasra No. 358/1 but however, that was only on the strength of the 12 representation made by the defendants in the sale deed. The Sale Deed in question does not disclose of any litigation inter se between the defendants and third party pending on that date. I find no infirmity with the findings recorded by the Courts below and the appeal is accordingly dismissed. The plaintiff instituted the suit on 2.12.1998 and the Appellate Court remanded the matter back in terms of judgment dated 29.6.2002 since then the matter has been pending in this Court. To ensure that the matter is further not delayed, the parties through their learned counsel are directed to appear before the trial Court on 13.10.2008. Taking into account all the attending facts and circumstances, it is expected of the trial Court to conclude the proceedings, after affording due opportunities to the parties, as expeditiously as possible and positively before 30th April, 2009. ( Sanjay Karol ), Judge. October 1, 2008. (rana)