IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA 508 of 1998. Judgment reserved on 5.11.2007. Date of Decision 25.2.2008. M/S Bharat Steel Enterprises, Mehatpur …Appellant. Versus Soma Devi and others ……Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Bhupinder Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate. For the Respondent(s) Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. This is the defendant’s appeal against the judgments of two Courts below decreeing the suit of the respondents-plaintiffs for possession. The brief facts necessary for consideration of this appeal are that the plaintiffs instituted a suit for possession and damages for use and occupation of two shops as described in the plaint. The defendant resisted the 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. - 2 - suit interalia on the ground that he was a tenant; the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure and it was bad for non joinder of necessary parties etc. The averments made by the plaintiffs may be noticed. Possession was claimed on the basis of title. It was pleaded that the defendant forcibly trespassed over the two shops and without the consent of the plaintiffs occupied them in the month of January, 1983. It was interalia averred that proceedings under Sections 107/151 Cr.P.C. were also instituted against them. The plaintiffs submit that when they were in the process of filing a suit for possession, after having exhausted all efforts of persuading the appellant-defendant to vacate the premises and deliver peaceful and vacant possession, the defendant rushed to Court and filed a suit for injunction against the plaintiffs praying that he may not be dispossessed forcibly except in due course of law. In this suit, the defendants had set up his right to possession founded on tenancy and sought protection under the provisions of Himachal Pradesh Urban Rent Control Act, 1987. The defendant as noticed, - 3 - resisted the suit on a number of grounds interalia that the subject matter of the suit was pending decision in an appeal before the learned District Judge, Una (the appeal preferred by the defendant in the previous suit instituted by him); the defendant- appellant is the tenant of the suit premises; the suit is barred under Order 2 Rule 2 as earlier two plaintiffs had instituted a suit titled Soma Devi versus Bharat Steel Enterprises, Mehatpur, being Civil Suit 271/1986 which was pending in the Court of Sub Judge Ist Class, Una for recovery of mesne profits in which relief of possession was not claimed. According to the plaintiffs, this suit was based on the same cause of action and hence the present suit was barred. The learned trial Court decreed the suit holding the defendant-respondent to be a trespasser and rejected the plea raised by the defendant under Order 2 Rule 2 of the Code of Civil Procedure. An appeal preferred by the defendant was unsuccessful. The learned District Judge, in addition to affirming the findings of the learned trial Court, held that the appellant-defendant has been guilty of abusing the process of law by suppressing facts and preempting any action which - 4 - could have been taken by the plaintiffs. The defendant is now in second appeal. The appeal was admitted on two substantial questions of law: 1. Whether the present suit is hit by the provisions of Order 2 rule 2 CPC and by the principle of res judicata? 2. Whether the suit is bad for non joinder of parties? Question No. 1 Before this question is considered, the necessary facts may be noticed. The appellant defendant instituted civil suit No. 43/83 titled Bharat Enterprises through its Partner Shri Rajesh Kumar Goel versus Smt. Soma Devi and others, on the allegation that it was a partnership firm running business in the name and style of M/S Bharat Steel Enterprises and that it is a tenant of the shop in dispute on a monthly rent of Rs.200/- which is being paid to two of the landlords, namely Smt. Soma Devi and Shri Shiv Kumar. Three issues were framed by the learned trial Court viz as to whether the plaintiff (defendant/appellant in the present appeal) is the tenant of the shop and whether he is entitled to a - 5 - decree of injunction against the plaintiffs as prayed for. On consideration of the evidence, learned trial Court negatived the plea of tenancy but granted a decree for injunction vide its judgment (Ex.D-6) in the following terms: “ In view of my findings on issue No. 2 being in favour of the plaintiff and as against the defendant, the suit of the plaintiff for permanent injunction is decreed only on the basis of the possession of the plaintiff over the suit property for which there is no dispute and accordingly, the defendants are restrained from interfering in possession of the plaintiff over the suit land or from taking forcibly possession of the shops except by due process of law. The suit is accordingly decreed. However, the parties are left to bear their own costs. Decree sheet be prepared accordingly and the case file be consigned to the record room.” The suit was decreed on 28.3.1987. An appeal preferred to the Court of learned District Judge by the present appellant was dismissed vide judgment dated 30.10.1989 (Ex.D-4) negativing the plea of tenancy. It was held that a trespasser is - 6 - not entitled to injunction against a true owner. Cross objections filed by the present respondents who were the defendants in the suit were allowed. RSA No. 474/1989 challenging the judgment and decree of the learned District Judge was preferred in this Court which appeal was dismissed on 17.12.1996 (Ex.P- 3), holding: “After having heard the learned counsel for the parties at length and after carefully perusing the impugned judgment and the record, I find that there is no merit in this appeal. Both the learned Courts below on appreciation of evidence have returned a categoric finding that the plaintiff has failed to establish that he is a tenant over the shop in question under the defendants. What has been found is that the plaintiff is, in fact, a tenant of the other shop and the writing on the counter-foil of the cheque stands manipulated by the plaintiff in order to project it as payment of rent for two months. Learned Courts have accepted the version given by the defendants that this amount of Rs.400/- was received by them as they needed money for raising construction and this amount - 7 - has nothing to do, so far as payment of rent is concerned. The judgment needs not to be burdened by reproduction of the counter-foil and the entry since the learned first appellate Court has dealt with the matter quite elaborately in para 10 of the impugned judgment. Learned counsel appearing for the plaintiff has not been able to persuade me to take a different view of the matter than the one arrived at by the learned first appellate Court……”. An appeal preferred to the Hon’ble Supreme Court being Special Leave to Appeal (Civil) No. 11511 of 1997 was dismissed on 10.7.1997. These facts are being noticed as they would be necessary for determining the plea as raised by the learned counsel appearing for the appellant that the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure as the plaintiff- respondent could have sued for possession, but having deliberately omitted to sue for this relief, cannot now claim a decree for possession and that the suit is not maintainable because of non joinder of necessary parties. - 8 - Before discussing the principles of law applicable, it must be noticed that the appellant is a trespasser having no legal right of occupation and now seeks to protect his possession on the basis of principles of law which, he urges, protects his right to occupation. In other words, the appellant would have this Court hold that the principles of law meant for protecting multiplicity of litigation are to be invoked for the aid and protection of trespassers and those who choose to manipulate and abuse the process of law. These observations are being made by me as they already stand established in the previous litigation which was initiated by the defendant/ appellant and despite the fact that the plea of tenancy was negatived by this Court, it was again set up by the defendant. The plea of tenancy was held to be dishonest by the learned District Judge as also by this Court. The Special Leave Petition was dismissed by the Hon’ble Supreme Court. It was also noticed and held as a fact that the appellant had manipulated counter foils of cheques etc. in order to gain advantage over the plaintiffs. - 9 - Order 2 Rule 2 of the Code of Civil Procedure has been the subject matter of consideration in a number of cases. In Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, a Constitution Bench of the Hon’ble Supreme Court has held: “(6) 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 later suit is based there would be no - 10 - scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. ……” This decision has been subsequently followed in Kunjan Nair Sivaraman Nair versus Narayanan Nair and others, (2004) 3 SCC 277 holding: “Order 2 Rule 2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order II sub-rule (3 ). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provisions as highlighted in Gurbux Singh's case, AIR 1964 SC 1810 by the Constitution Bench and in Bengal Waterproof Limited, (1997) 1 SCC 99. The salutary principle behind Order II Rule 2 is that a defendant or defendants should not be vexed time and against for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, - 11 - provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court.” In Gurinderpal versus Jagmittar Singh (2004) 11 SCC 219, the Supreme Court has reiterated the principles holding: “…The provisions of Order 2 Rule 2 CPC bar the remedy of the plaintiff- appellant and, therefore, must be strictly construed….” Learned counsel appearing for the appellant submits and has placed reliance on Deva Ram and another versus Ishwar Chand and another (1995) 6 SCC 733) holding: “ The provisions of Order 2 Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up - 12 - the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as Order 2 rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. Order 2 Rule 2 CPC requires the unity of all claims based on the same cause of action in one suit. If the identity of causes of action is established, the rule would immediately become applicable and it will have to be held that since the relief claimed in the subsequent suit was omitted to be claimed in the earlier suit, without the leave of the court in which the previous suit was originally filed, the subsequent suit for possession is liable to be dismissed as the defendants in both the suits, cannot be vexed twice by two separate suits in respect of the same cause of action. But it does not contemplate unity of distinct and separate causes of action. If, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar.” - 13 - The judgments in Syed Tayyab Hasan v. Syed Saghir Hasan and others , AIR 1939 Allahabad 52; Mohd. Yunas Fazal Mohamad v. Mt. Jahan Sultan d/o Ahmad Din and another, AIR (29) 1942 Peshawar 9; Sidramappa v. Rajashetty and others, 1970 (1) SCC 186 and Sardar Balbir Singh v. Atma Ram Srivastava, AIR 1977 Allahabad 211 need not be considered in detail, as the principles enunciated therein are now well settled by Constitution Bench of the Hon’ble Supreme Court, in Gurbux Singh’s case (supra). One other judgment of the Full Bench of Punjab and Haryana High Court in Sadhu Singh and others v. Pritam Singh, son of Narain Singh and another, AIR 1976 Punjab and Haryana 38 requires to be considered. The Court while considering provisions of Order 2 Rule 2 and order 2 Rule 4 of the Code of Civil Procedure held: “ 4. As to the sources of the law and their history it is indeed possible to go back for more than a century in this context. There is no manner of doubt that the earliest Indian Civil Procedure Code were modeled on the language and patterned to follow the principles and procedures of the then existing English law. At common law - 14 - claims for ejectment and for mesne profits were always treated as separate causes of action so much so that an action for mesne profits did not even lie until judgment had been recovered in ejectment. It was only after the enactment of the Common Law Procedure Act 1852 that the two actions were even enabled to be joined. Adopting the above said rule the Indian Code of Civil Procedure, 1859 expressly provided that a claim for recovery of land and a claim for mesne profits arising out of such land should be deemed to be distinct causes of action. Indeed the relevant Section 10 thereof may usefully be quoted verbatim- “10. A claim for the recovery of land and a claim for the mesne profits of such land shall be deemed to be distinct causes of action within the meaning of the two last preceding sections…..” 10. Inevitably, one must now turn to the relevant provisions of the statute and the scheme in which these are laid in Order II of the Civil Procedure Code. For facility of reference, these may first be set down: “ Order II Frame of Suit - 15 - R.1 Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. 2(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) 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) 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. Explanation: x x x x Illustration: x x x x 3. Joinder of causes of action: x x 4. No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except- - 16 - (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c ) claims in which the relief sought is based on the same cause of action: Provided: x x x x x” It is indeed unnecessary to dilate at length about the objects and the purposes underlying Rule 2 above quoted. It has been authoritatively held that the provision is plainly directed against the twin evils of the splitting up of claims and splitting up of remedies. It is obviously intended to avoid a multiplicity of actions. However, even a plain reading of the rule makes it evident that it is intended clearly to apply only to a claim based on one cause of action. It does not bar the bringing of a second suit if it is based on a distinct and separate cause of action. It is elementary that except where a statutory provision provides otherwise, two suits may be brought upon facts which give rise to two distinct causes of action. In order to attract the application of Rule 2, the previous suit as well as the - 17 - subsequent suit must arise out of a single and indivisible cause of action and secondly the suit must be substantially between the same parties. 11. Now it is an elementary canon of construction that the provisions of a statute are to be read harmoniously and an interpretation is to be avoided which may render any part thereof otiose. Applying this salutary principle, the provisions of Rule 2 and Rule 4 above quoted must be construed as complementary to each other. Now the very opening words of Rule 4 are a clear pointer to the fact that this provision treats a claim for the recovery of immovable property and a claim for mesne profits thereof as two distinct and separate causes of action. This is so because that could be the only reason why Rule 4 above said has to especially provide for joining a claim for mesne profits with a claim for the recovery of immovable property. Indeed, if the two claims were a single indivisible cause of action, then no necessity for a provision like sub-clause (a) of Rule 4 would arise and such a construction would render this provision wholly redundant and otiose. On the other - 18 - hand, but for the provision of Rule 4(a) which provides an express exception, the general prohibition of joining any other cause of action with a suit for recovery of immovable property would come into operation even in cases where the two claims were to be made. It is merely an enabling provision which allows the joinder of these two causes of action. The conclusion, therefore, which inevitably seems to be flow from reading Rule 2 and Rule 4 together is that Order 2 treats a cause of action for recovery of immovable property as distinct from a cause of action for the mesne profits thereof.” No other decision contrary to what has been laid down by the Punjab and Haryana High Court has been brought to my notice. It is undisputed that the suit which was brought and which is alleged to bar the cause for recovery of possession was one for recovery of mesne profits. The Full Bench of the Punjab and Haryana High Court is a complete answer to the argument of learned counsel appearing for the appellant. Even otherwise, the provisions of Order 2 Rule 2 have to be strictly construed as held by the - 19 - Supreme Court and considering the facts of the present case, the provision cannot be interpreted in a way so as to give any advantage to the appellant whose manipulative conduct is writ large. He seeks to invoke a principle of law to gain advantage of an illegality. This approach cannot be commended. Indeed, the settled principle of law is that it should not come to the aid of a person who founds his cause on an illegality. In Haji Abdul Shakoor v. The Rent Control and Eviction Officer, Kanpur and others, AIR 1959 Allahabad 440, it was held: “35. I shall now consider whether the petitioner’s conduct has disentitled himself to any relief from this Court under Art. 226 of the Constitution. In view of my finding above it is clear that the transaction between the petitioner and his alleged partners is illegal as its object is of such a nature that if permitted, it would defeat the provisions of the U.P.(Temporary) Control of Rent and Eviction Act. Such a transaction would be hit by S. 23 of the Indian Contract Act. A petitioner who comes into Court founding his cause of action on an illegality, will not get any - 20 - assistance from the court. Ex turpi causa non oritur action (out of a turpitude, no cause of action arises). As long ago as 1767, Wilmot C.J. observed, in the case of Collins v. Blantern, (1767) 95 ER 847, “You shall not stipulate for inquiry. All writers upon our law agree in this, no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract if he has once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again. You shall not have a right of action, when you come into a court of justice in this unclean manner to recover it back………” A petitioner who does not come to this Court with clean hands or who comes with his hands soiled with an illegal transaction made made with the deliberate object of defeating the provisions of the law, disentitles himself to any relief from the Court. So strict and vigilant is the court in ensuring that “no polluted hand shall touch the pure fountains of justice,” that it refused relief to a petitioner on the ground of his conduct, even though he was able to - 21 - prove that the order sought to be quashed was vitiated by a patent lack of jurisdiction. In Azizun-Nisa v. Asstt. Custodian, (S) AIR 1957 All 561, a Division Bench of this Court rejected the petition of Azimunnisa and others on the ground that it was malafide, though, on merits, it came to the conclusion, that all the impugned orders had been passed under Ordinances which were illegal and beyond and jurisdiction of the Governor General-in-Council, who had promulgated them………...” The Hon’ble Supreme Court in Kedar Nath Motani and others v. Prahlad Rai and others, AIR 1960 SC 213 held: “(12) The