IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.316/1998 Reserved on:19.11.2008 Decided on:22.12.2008 Mohinder Singh. …Appellant. Versus State of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the Appellant : Mr.Bimal Gupta, Advocate. For the Respondent: Mr. R.K. Sharma, Senior Additional Advocate General With Mr. Rajinder Dogra, Addl. Advocate General and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.5.1998 passed by the learned Additional District Judge, Sirmaur District at Nahan in civil appeal No. 50-N/13 of 1993. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) instituted a suit No. 48/1 of 1991/89 for mandatory injunction against the respondent-defendant (hereinafter 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 referred to as ‘the defendant’ for convenience sake). The plaintiff was the highest bidder for lot No.20 of 1977-78 in a public auction held by the Forest Department in respect of standing trees numbering 584 in Mahadev Forest Compartment of Majra Range of Tehsil Paonta. The highest bid was for Rs. 1,55,500/-. It was accepted by the defendant through Forest Department. The volume of trees sold in the said lot to the plaintiff was to the extent of 473.644 cubic meters. A binding contract came into existence between the plaintiff and the defendant. The auction money was to be paid by the plaintiff in installments. The date of expiry of the contract was March, 1978. The Forest Department was required to issue export permit for lifting the timber. According to the plaintiff out of 584 cubic meters sold to him, the possession of 27 Saal trees was not delivered to the plaintiff as the ownership of the same was disputed by one Sh. Chhaju whose land was adjacent where 27 trees were standing. Sh. Chhaju filed a civil suit in the court of Senior Sub Judge. The plaintiff paid a sum of Rs. 1,18,000/- to the Forest Department as per the conditions of the contract after deducting the sale price of 27 Saal trees. His precise case is that contrary to the terms of the agreement, the defendant did not deliver the possession of 27 saal trees which were sold and took out recovery proceedings against the plaintiff for which he had to file a civil suit against the defendant, which was decreed by the learned District Judge and the recovery proceedings were held to be illegal vide judgment dated 3.6.1987. The defendant issued an export permit in respect of 135 cubic meters only before the controversy regarding the payment of sale price of 27 saal trees. The defendant failed to issue the export permit in respect of the rest of converted timber despite the plaintiff’s writing several times to the Forest Department to release the same. In nutshell, the total 135 cubic meters timber was released. The 3 remaining timber was not released to him. He claimed by way of mandatory injunction the release of timber to the extent of 238 cubic meters, less 135 cubic meters of timber which was released in respect of which the export permit was already issued and minus 100 cubic meters in respect of 27 trees, the possession of which was not given to the plaintiff. The suit was resisted by the defendant. The trial court on the basis of the evidence led by the parties, decreed the suit on 19.6.1993. The defendant preferred an appeal against the judgment and decree passed by the learned Sub Judge before the learned Additional District Judge, Sirmaur at Nahan. The learned Additional District Judge, Sirmaur at Nahan allowed the appeal on point No.2. The impugned judgment and decree dated 19.6.1993 was set aside. Consequently, the suit of the plaintiff for mandatory injunction ordering the defendant to deliver 238 cubic meters of converted timber and fuel wood detained illegally by the defendant and to issue necessary export permit in his favour or in the alternative ordering the defendant to pay the price of the same was dismissed. This Regular Second Appeal has been directed against the judgment and decree dated 1.5.1998. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether suit out of which the present appeal has arisen is barred by order 2 Rule 2 of the Code of Civil Procedure in view of previous civil suit No. 77/1 of 1999? 2. Whether learned lower appellate court has misconstrued, misinterpreted plaint Ex.AW-1/A, written statement Ex.AW-1/B and replication Ex.AW-1/C of C.S. No. 77/1 of 1979 for deciding that the present suit is barred by order 2 rule 2 CPC? Mr. Bimal Gupta, Advocate has strenuously argued that the judgment and decree dated 1.5.1998 is not sustainable. He has also 4 argued that the learned first appellate court has wrongly come to a conclusion that the provisions of order 2 rule 2 of the Code of Civil Procedure were attracted and the plaintiff was required to include the present prayer made in the suit, in civil suit No. 77/1 of 1979. Mr. R.K. Sharma, Senior Additional Advocate General has supported the judgment and decree dated 1.5.1998 passed by the first appellate court. I have heard the learned counsel for the parties and perused the record carefully. The sole question requiring consideration by the Court in this Regular Second Appeal is whether the first appellate court had come to a right conclusion that the provisions of order 2 rule 2 of the Code of Civil Procedure were applicable in this case or not. It will be necessary to take note of few facts of civil suit No. 77/1 of 1979 instituted by the plaintiff in the court of Sub Judge Ist Class, Sirmaur. The suit bearing No. 77/1 of 1979 was filed by the plaintiff for granting a decree of declaration that the recovery proceedings arising out of forest lot No. 20/1977-78 of Majra Forest Range pertaining to Mahadev Forest Compartment were illegal and void and the plaintiff was not liable to pay any amount to the defendant arising out of the said lot and a decree of permanent injunction restraining the defendant from proceeding with the recovery and granting of mandatory injunction ordering the defendant to deliver 27 saal trees on payment of proportionate price to the plaintiff with such necessary deductions from the contractual price under sections 34, 38 and 39/9 of the Code of Civil Procedure and grant an export permit for the timber contracted with the defendant. The plaintiff had prayed for the following reliefs: “Wherefore the plaintiff prays for a decree of declaration that the recovery proceedings arisen out of Forest Lot 5 No. 20/1977-78 of Majra Forest Range pertaining to Mahadev Forest Compartment are illegal and void and the plaintiff is not liable to pay any amount to the defendant arising out of the said lot and for a decree of permanent injunction restraining the defendant from proceeding with the recovery and granting a mandatory injunction ordering the defendant to deliver 27 trees of green Sal of standing varieties on payment of proportionate price by the plaintiff with such necessary deductions from the contractual price be and export permit for the timber granted in favour of the plaintiff and against the defendant with costs of the suit and other relief to which the plaintiff is entitled to may also be granted to the plaintiff.” The defendant had filed written statement to the plaint filed by the plaintiff. The case set up by the defendant was that total number of 584 trees auctioned in favour of the plaintiff were handed over to him and the timber converted from these trees had already been carried by him without export permit. The matter was reported to the police on various occasions. The plaintiff filed replication to the written statement of the defendant. The learned Sub Judge dismissed the suit on 5.6.1984. The plaintiff preferred an appeal before the learned District Judge Solan and Sirmaur against the judgment and decree dated 5.6.1984. The learned District Judge allowed the appeal on 3.6.1987. The present suit has been filed for granting a decree of mandatory injunction ordering the defendant to deliver 238 cubic meters of converted timber wrongfully detained by the Forest Department and to issue necessary export permit for the same and in the alternative to pay its price to the plaintiff under section 39 of the Specific Relief Act. The defendant filed a written statement to the plaint as already noticed hereinabove. 6 It will be apt at this stage to take note of the judgment rendered by this Court in RSA No. 256/1987 against the judgment and decree dated 3.6.1987 passed by the learned District Judge Solan at Sirmaur. The Regular Second Appeal was dismissed by this Court on 27.11.1995. The trial court had struck a specific issue to the following effect:- “Whether the suit is barred under order 2 rule 2 of the Code of Civil Procedure?” The finding returned by the trial court was that since the present suit was for restraining the defendant from recovering the amount from him, the present relief could not be included in that suit. The learned Additional District Judge Sirmaur had framed the following point for determination: “Whether the findings of the learned trial Judge holding that the suit is not barred under order 2 rule 2, CPC are erroneous?” The learned first appellate court after taking into consideration the plaint Ex.PW-1A, written statement Ex.PW-1/B and replication Ex.PW-1/C came to a conclusion that the present suit was hit by the provisions of order 2 rule 2 of the Code of Civil Procedure. The bare perusal of the plaint Ex.PW-1/A shows that the plaintiff had paid a sum of Rs. 1,17,000/- to the defendant. He was not released the converted timber. He was also not issued export permit. He was issued export permit for 135 cubic meters. The plaintiff had not sought the relief for release of the rest of the converted timber i.e. 238 cubic meters and for the issuance of its export permit. The cause of action was available to the plaintiff at the time of filing the earlier suit No. 77/1 of 1979. This suit was filed on 16.7.1979 after the expiry of the agreement on 31.3.1978. In the present suit also the plaintiff has claimed for the release of 238 cubic meters timber after the adjustment of 135 cubic meters timber 7 in respect of which the permit already stood issued on 5.1.1978. There was no dispute after the suit of Chhaju Ram was decreed qua 27 trees. The cause of action was available to the plaintiff for the relief sought in the present suit at the time of filing the suit No. 77/1 of 1979. The submission of Mr. Bimal Gupta that till the disposal of the earlier suit, the present suit could not be filed is not tenable. Mr. Bimal Gupta has also argued that since there was dispute with regard to 27 trees, the present suit could not be filed. This plea deserves to be rejected. Sh. Chhaju Ram had filed the suit qua 27 trees. It was decreed in his favour. It is reiterated that the plaintiff could claim the relief for the release of 238 cubic meter timber as well as its export permit in the previously instituted suit. The cause of action in the present suit as well as in the previously instituted suit i.e. 77/1 of 1979 was the same. In previously instituted suit, the plaintiff was entitled to larger relief i.e. release of timber measuring 238 cubic meter timber as well. The cause of action was in existence on the date of institution of the earlier suit filed by the plaintiff and he was aware of his rights. The submission of Mr. Bimal Gupta that the cause of action in the second suit was distinct and separate cannot be accepted. It is settled law by now that for the purpose of determining the applicability of the provisions of order 2 rule 2, the point of time is the date of filing the suit and not date of passing of the decree. What is relevant for deciding the cause of action is the statement of the plaintiff in his plaint. The other course open to the plaintiff was to seek the leave of the court with regard to other reliefs. Consequently, in view of the observations made hereinabove, there is no force in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 22.12. 2008 (Rajiv Sharma ), J. *awasthi*