1 fa12-97j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.12 OF 1997 ALONGWITH CROSS OBJECTION NO. 4622 OF 1997 Dr. Vithalrao Khaskuraj Newase & Anr. .. Appellants V/s. Dattatraya Shamrao Pawar & Ors. .. Respondents Mr. P. B. Shah for the appellants. Mr. T. D. Deshmukh for respondent No.1. Ms. Smita Mane for respondent No.2. CORAM : A.S.OKA, J. DATE : JUNE 8, 2011. ORAL JUDGEMNT :- The appellants are the plaintiffs and the respondents are the defendants. By the impugned Judgment and decree, the suit has been dismissed. 2. The appellants filed the present suit for decree for possession in respect of the suit property more particularly described in paragraph No.1 of the plaint. The suit property is CTS No.654 admeasuring 158 2 fa12-97j. square meters situated at Poolanchi Wadi, Shivajinagar, Pune Taluka Haveli, District Pune. 3. The case made out in the plaint is that the suit property was owned by late Mhaskuji Khanduji Newase. Averments have been made as regards construction of four rooms carried on the suit property by the said Mhaskuji. It is stated that under the Development plan, the suit property was kept reserved for 100 feet wide public road. Subsequently, in the year 1976, the suit property was reserved for the purpose of Pune Municipal Transport Terminus. Reference has been made to the notice under Section 49 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “the said Act 1966”) issued by the advocate for the plaintiffs. It is alleged that in February 1980, the first defendant taking undue advantage of the absence of the plaintiff in the city of Pune, illegally and forcebally encroached upon the suit land and constructed sheds which were let out to second to sixth defendants. 4. It is stated in the plaint that the Special Land Acquisition Officer No.15 held enquiry with regard to the payment of compensation on account of acquisition of the suit property. The first defendant claimed 3 fa12-97j. full compensation under the pretext that he was the owner. However, the claim of the ownership made by the first defendant has been negatived by the Land Acquisition Officer, and, therefore, a Civil Suit was filed by the first defendant for simpliciter injunction. It is stated that in August 1983, the plaintiff learnt that he has been excluded from the plaint filed by the first defendant. It is contended by the plaintiff that the said suit filed by the first defendant was dismissed for non prosecution. It is alleged that during the pendency of the suit filed by the first defendant, he erected unauthorized and illegal shed on the suit land. It is alleged that the first defendant was illegally collecting a sum of Rs.400/- per month on account of rent from 2nd to 6th defendants. Therefore, a prayer was made for decree for possession against the first defendant after removal of the encroachment. A decree for mesne profits was also prayed for apart from the relief of injunction. 5. Various contentions were raised in the written statement filed by the first, third and sixth defendants. One of the contentions raised was that the suit was barred by Sub Rule 2 of Rule 2 of Order II of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) in as much as the plaintiffs ought to have claimed the same reliefs in 4 fa12-97j. earlier Civil Suit NO.2992 of 1982 filed by the first plaintiff. Trial Court framed 14 issues. The trial Court decided almost all issues in favour of the plaintiffs. The trial Court has held that the plaintiffs are owners of the suit property and that the first defendant has no right in respect of the suit property. The plea of the first defendant that he had perfected the title by adverse possession was negatived. The trial Court while answering the issue No.9 held that the suit was barred under the provisions of Rule 2 of Order II of the said Code as well as under Rule 9 of Order IX of the said Code. 6. The learned counsel appearing for the plaintiffs invited attention of the Court to the findings recorded by the trial Court. He submitted that after answering all material issues in favour of the plaintiffs, only on technical grounds the suit has been dismissed. He submitted that Regular Civil Suit No.2992 of 1982 was filed only by the first plaintiff and the second plaintiff was not a party to the said suit. He also pointed out that only the first defendant in present suit was a party defendant to the earlier suit. He pointed out that the earlier suit was not dismissed in exercise of power under Rule 8 of Order IX of the said Code and therefore, bar of Rule 9 of Order IX was not applicable. 5 fa12-97j. He submitted that in view of Sub Rule 4 of Order IX of the said Code, the plaintiffs were entitled to maintain a fresh suit as the earlier suit was dismissed in exercise of power under Rule 3 of Order IX of the said Code. He submitted that as the present suit was expressly maintainable under Rule 4 of Order IX of the said Code, the bar under Sub Rule 3 of Rule 2 of Order II of the said Code was not applicable. He submitted that the cause of action for filing the earlier suit was totally different. He submitted that when the earlier suit was filed, sheds were constructed on the part of the suit property and, subsequently, further construction was carried on by the defendants. He submitted that after dismissal of the earlier suit, the Land Acquisition Officer confirmed the title of the plaintiffs. He, therefore, submitted that the cause of action of the second suit was completely different and, therefore, the bar was not applicable. He place reliance on the decisions of the Apex Court in the case of AIR 1994, Supreme Court 1756 in the case of Inacio Martins, deceased thorugh Lrs. V/s. Narayan Hari Naik & Ors. and AIR 2004, Supreme Court 1761 in the case of Kunjan Nair Sivaraman Nair v/s. Narayanan Nair & Ors. He submitted that the bar under Sub Rule 3 of Rule 2 of Order II of the said Code was not applicable and the trial Court has committed an error by dismissing the suit. The learned 6 fa12-97j. counsel appearing for respondent No.1 supported the finding on the issue of bar of suit and relied upon a decision of this Court in the case of Smithline Beecham Consumer Health Care Gmbhy And Ors. v/s. Hindustan Leaver Ltd., and Anr 2002(1) ALL MR 1043. He submitted that Sub Rule 2 of Rule 2 of Order II is mandatory in nature. He submitted that the cause of action for filing both the suit is the same. He submitted that the second plaintiff in the present suit who was not the plaintiff in the earlier suit is not claiming any independent right. He, therefore, submitted that there is no merit in the Appeal. He submitted that if this Court comes to the conclusion that the present suit is maintainable, even the finding on the issue No.1 will have be examined on merits on the basis of the Cross-Objection. 7. I have given careful consideration to the submissions. Rule 2 of Order II of the said Code read thus: “ Suit to include the whole claim – (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) Relinquishment of part of claim – 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 7 fa12-97j. the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs – 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.” 8. Sub Rule 1 of Rule 2 of Order II of the said Code enjoins that every suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action. However, the plaintiff can always obtain leave to file a suit only in respect of a part of the claim arising on the basis of the same cause of action. If he omits to obtain leave, the plaintiff cannot afterwards sue for remaining reliefs which could have been claimed in the earlier suit. 9. I have perused the plaint in the earlier suit filed in the year 1982. it is not in dispute that the suit property subject matter of both the suits is the same. The first plaintiff in the present case filed the said suit for declaration that the first and second defendants therein (the first defendant in the present suit and one Dyanoba) were trespassers on the suit property. It is alleged in the earlier suit that the first defendant in the present suit alongwith the second defendant in the earlier suit 8 fa12-97j. encroached upon the suit property and obtained possession thereof and, therefore, a declaration has been claimed that the first defendant and second defendants were trespassers. The earlier suit was filed in October 1982. The allegation in the suit is that the defendants have constructed two shed by encroaching upon the suit property. However, in the earlier suit, the first plaintiff omitted to sue for removal of encroachment. 10. It will be necessary to make a reference to the present suit filed by the plaintiffs. The cause of action specifically pleaded in the suit is in paragraph No.10. It read thus: “10. That, the cause of action to the present suit firstly aroused in February 1980 when the Defendant No.1 forcibly dispossessed to this plaintiff from the suit land and thereafter de-die-at-diam.” 11. In the second suit there are averments about the proceedings before the Special Land Acquisition Officer in which the first defendant claimed ownership in respect of the suit property. The cause of action pleaded in the earlier suit is the dispossession by the first defendant and his father Dnyanoba in the year 1980. The same cause of action is specifically pleaded in the present suit in paragraph No.10. Thus, the 9 fa12-97j. cause of action for filing the first suit was the act of encroachment committed by the first defendant. Merely because some more construction was carried out by the first defendant will not make the cause of action for filling the subsequent suit different. The cause of action arose only because the first defendant dispossessed the plaintiff and encroached upon the suit property. That is the reason why in the earlier suit, a declaration was claimed that the first defendant and his brother have illegally trespassed upon the suit property. Thus, the cause of action for filling the present suit is the same as cause of action for filing the earlier suit. 12. In the case of Smithkline (supra), this Court considered the scheme of Rule 2 of Order II of the said Code. In paragraph No.15 this Court observed thus: “It is clear from the judgments of the Supreme Court, referred to above, that the conduct of a litigant of not including all the grounds available to him on the subject in dispute in one suit and instituting several suits against the same parties on the same subject in dispute has been termed by the Supreme Court as abuse of the process of the Court. Indeed, if a litigant is permitted to adopt such a course of action, he may institute such subsequent suits not necessarily, in the same Court, but in different States at different times. This opens the possibility of different Courts, all the competent jurisdiction, rendering 10 fa12-97j. contradictory decisions on the same subject in dispute between the same parties, and when all these Courts are of equal authority and are par to the one legal system it will definitely bring the administration of justice in disrepute.” 13. After considering Rule 2 of Order II, in paragraph No.16 this Court held thus: “ Perusal of Rule 2 of Order II shows that it obliges a plaintiff to include his whole claim, which he is entitled to make in respect of a cause of action. It also provides for the consequence of the plaintiffs failure to do so. A comparison of the provisions of Rule 1 and Rule of the Order II shows that, so far the present purpose is concerned, there are two marked differences : (i) Rule 1 uses the phrase “subject in dispute”, whereas Rule 2 uses the phrase “cause of action” and (ii) Rule 2 provides that failure of the plaintiff to abide by the mandate of Rule 2 results in the plaintiff being debarred from instituting a fresh suit for that claim, however, Rule 1 does not provide for the consequence that will result from noncompliance..... Thus, in case a plaintiff leaves out from a suit some reliefs claimed in the subsequent suit arise out of the same cause of action on which the former suit is instituted and on finding that it is so, the Court has no option but to dismiss the subsequently instituted suit, though, the plaintiff might have left out the reliefs, because of a bonafide mistake.” (underlines supplied) 14. The second plaintiff is not claiming any independent right, but, he is claiming through the first plaintiff. Thus, in the earlier suit, the first plaintiff ought to have incorporated a prayer for removal of encroachment but that was not done. Admittedly, the leave 11 fa12-97j. contemplated by Sub Rule 2 of Rule 2 of Order II was not obtained by the first plaintiff in the earlier suit. 15. The decision of the Apex Court in the case of Kunjan Nair (Supra) will not be applicable. In the said case, the earlier suit was filed on the footing that the plaintiff was in possession and thereafter a subsequent suit for possession was filed. In the earlier suit, the Court held that the plaintiff was not in possession. In the circumstances, second suit was filed. The decision of the Apex Court in the case of Inacio (supra) will not apply as in the said case the cause of action for filing the subsequent suit was found to be distinct from the cause of action in the first suit. 16. It is true that if the suit is dismissed in exercise of power under Rule 3 of Order IX of the said Code, a fresh suit is maintainable. However, the bar under Rule 2 of order II shall certainly apply to the subsequent suit as provision of Sub Rule 2 of Rule 2 of Order II has been held to be mandatory. The liberty granted under Rule 4 of Order IX to file a fresh suit is only to get over the hurdle created by dismissal of the earlier suit. Fresh suit filed in the exercise of liberty granted 12 fa12-97j. under Rule 4 of Order IX can be dismissed on the ground of non compliance with mandatory requirements of Sub Rule 2 of Rule 2 of Order II of the said Code. In the circumstances, the submission made by the learned counsel appearing for the plaintiffs cannot be accepted. 17. In the circumstances, the finding recorded by the trial Court on issue No.9 will have to be confirmed to the extent that the suit was barred under Rule 2 of Order II of the said Code. As the finding on the issue of bar of suit is being confirmed, it is not necessary to consider the cross-objection filed by the first respondent. 18. Hence, there is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. The Cross-Objection is disposed of. JUDGE