1 C.R.A. No.86/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.86 OF 2009 Shri Mubarak s/o Amar Chaus, Age 50 years, Occ. Business, R/o H.No.5-1-56, Barapulla Gate, Opp. Darga, Mill Corner, Aurangabad ... APPLICANT VERSUS 1. Madan s/o Vithoba Ujed Patil, Age 40 years, Occ. Business, R/o H.No.27, Near Mata Mandir, Mukundwadi, Aurangabad 2. Regional Transport Officer, Station Road, Aurangabad ... RESPONDENTS ..... Shri A.D. Kasliwal, Advocate for applicant ..... CORAM : S.S. SHINDE, J. DATED : 28th July, 2011. Date of reserving judgment : 26.7.2011 Date of pronouncing judgment : 28.7.2011 J U D G M E N T : 1. This Civil Revision Application is filed challenging the order dated 18.6.2009, passed by IVth Jt. Civil Judge, Senior Division, Aurangabad below Exhibit 13 in Regular Civil Suit No. 291/2007. 2 C.R.A. No.86/2009 2. The respondent No.1 herein filed Regular Civil Suit No. 291/2007 against the present applicant and respondent No.2 for recovery of amount of Rs.45,850/- which is outstanding towards the present applicant and for recovery of possession of Motor Vehicle Toyota Qualis bearing No,MH-20-Y-9853 in case the present applicant fails to pay the said amount and also for perpetual injunction restraining the defendants from alienating, transferring or creating charge over the said vehicle. 3. The respondent No.1/ plaintiff contended in the suit that he was owner and possessor of the motor vehicle Toyota Qualis bearing registration No.MH-20-Y-9853, which he had purchased by obtaining loan from ICICI Bank. The plaintiff contended that he repaid the entire Bank loan. The plaintiff further contended that he proposed to sell the said vehicle for construction of residential house and the present applicant/ defendant No.1 agreed to purchase the said vehicle for a consideration of Rs. 4,50,000/- and an earnest money of Rs.50,000/- was paid on 14.9.2006 in presence of one Shike Mama, who was middleman. The plaintiff further contended that the defendant No.1 demanded the original papers of the vehicle under the pretext of obtaining loan from ICICI Bank. The plaintiff handed over the entire original 3 C.R.A. No.86/2009 papers of the vehicle to defendant No.1. It is further contended by the plaintiff that on 20.9.2006, the defendant No.1 came to his house and told that he has brought banker cheques and demanded signature on T.T.O. form for transfer of the vehicle in his name. It is further contended that, when the plaintiff saw the cheque, it was for Rs.3,99,150/-, which was short. Therefore, the plaintiff questioned about the difference amount of Rs.45,850/- whereupon the defendant No.1 assured him to pay within seven days and asked the plaintiff not to worry. Therefore, relying on the words of the defendant No.1, the plaintiff signed on the T.T.O. form and handed over the said papers and also handed over possession of the vehicle to defendant No.1 as per oral agreement and assurance given by defendant No.1 to pay balance amount of rs.45,850/-. The plaintiff contended that, as the defendant No.1 failed to pay the remaining amount, he submitted objection application on 28.9.2006 to the defendant No.2 not to transfer the vehicle in the name of defendant No.1 as per the terms and conditions of the agreement. The plaintiff also issued legal notice to the defendants demanding the amount and also to stop the process of transfer of the vehicle. The plaintiff contended that as the defendant No.1 did not fulfil the terms and conditions of agreement, he is not entitled to get the vehicle transferred in his name. The plaintiff contended that the defendant No.1 is illegally holding the possession of the vehicle 4 C.R.A. No.86/2009 and trying to transfer it in his name which is totally illegal, improper and liable to be stopped. The plaintiff contended that he was and is ready to perform his part of contract but the defendant No.1 failed to comply the agreement hence the agreement between the parties is null and void and hence, contended that same be canceled by declaring that the amount advanced is forfeited. Thus, the plaintiff instituted the suit for recovery of amount of Rs.45,850/- with interest at the rate of 8% p.a. Alternatively, it was prayed that, in case the defendant No.1 fails to pay the amount, the agreement be cancelled and for declaring the same as not binding upon the plaintiff. The plaintiff also prayed for possession of the vehicle and to restrain the defendant Nos.1 and 2 from transferring the vehicle in the name of defendant No.1 or anybody else. 4. Along with the suit, the plaintiff also filed application for temporary injunction under Order XXXIX Rule 1 and 2 of the Civil Procedure Code, restraining the defendants No.1 and 2 from transferring the vehicle in the name of defendant No.1 or anybody else during the pendency of the suit. 5. The respondent No.,1/ plaintiff had also filed Regular Civil Suit No.1000/2006 on 6.12.2006 for perpetual injunction restraining the defendant No.2 from transferring the said vehicle in 5 C.R.A. No.86/2009 favour of defendant No.1 or in the name of any other person till recovery of full and final consideration amount of Rs.45,000/-. However, the Civil Judge, Senior Division, Aurangabad was pleased to dismiss the Regular Civil Suit No.1000/2006 on the ground that it was incomplete in nature and for non compliance of order of the Court. As stated hereinbefore, the respondent filed Regular Civil Suit No.291/2007 before the Jt. Civil Judge, Senior Division, Aurangabad upon the same facts and pleadings as also upon the same cause of action for perpetual injunction and recovery of amount of Rs.45,850/- 6. In the said suit, the present applicant/ defendant No.1 filed an application under Order II Rule 2(3) read with Order VII Rule 11 (d) of the Civil Procedure Code and contended that as per the provisions of Order II Rule 2, the suit should include the entire claim and if a claim is omitted and not included as per the provisions of sub-rule (2), the relinquishment will debar the plaintiff from claiming any relief in respect of the claim omitted. The applicant / defendant No.1 also contended that as per provisions of sub-rule (3) permission is required to be obtained from the Court to omit any relief in respect of same cause of action, but the plaintiff 6 C.R.A. No.86/2009 has failed to do so and subsequently the plaintiff cannot sue for the same. The applicant/ defendant No.1, therefore, prayed for dismissal of the suit and/or for rejection of the plaint under Order VII Rule 11(d) of the Civil Procedure Code. 7. The plaintiff filed say to the application filed by the present applicant/ defendant No.1 contending that the application is not tenable and there is no provision for return of the plaint or dismiss the suit in Order VII Rule 11 of the Civil Procedure Code, and prayed to reject the application. 8. The defendant No.1 also submitted written arguments and prayed for allowing the application under Order II Rule 2(3) read with Order VII Rule 11(d) of the Civil Procedure Code and prayed to reject the plaint. 9. The plaintiff filed application under Order VI Rule 17 of the Civil Procedure Code for amendment of the plaint in Regular Civil Suit No.291/2007, contending that previously Regular Civil Suit No.1000/2006 was filed simplicitor for perpetual injunction. The plaintiff contended that he later on submitted application for withdrawal in the office of his previous lawyer, but unfortunately the said suit came to be dismissed on the point of non-compliance of 7 C.R.A. No.86/2009 order. The plaintiff contended that, in the fresh suit, in para No.10 and 11 it has been mentioned about withdrawal of previous suit and the suit is filed on the cause of action mentioned in it. Therefore, the plaintiff prayed for amendment in para 10 after the words “from technical mistake, hence plaintiff withdrawing that suit”, the words “withdrawing the suit” wants to delete. The plaintiff also prayed to substitute the words “on fresh cause of action” in place of “on the same cause of action”. By the said application, the plaintiff prayed to delete the para No.11 and substitute the same by following paragraph: “11. That the date 27.2.2007, is the date of cause of action to the plaintiff to file the present suit as his incomplete suit for injunction was came to be dismissed therefore plaintiff filed present complete suit on fresh cause of action.” The Ivth Jt. Civil Judge, Senior Division allowed application for amendment below Exh. 20 in Regular Civil Suit No. 291/2007 on 18.6.2009. The applicant herein filed Writ Petition No. 4854/2009 challenging the said order allowing amendment. This Court, on 8.9.2009, passed following order : “1. Heard learned counsel for the petitioner and learned counsel for respondent No.2. 2. Rule. 8 C.R.A. No.86/2009 3. Interim relief in terms of prayer clause-C which reads as under: “C) Pending hearing and final disposal of the present Writ Petition, the order dated 18.6.2009 passed by the Ld. IVth Jt. C.J.S.D. Aurangabad below Exhibit 20 in R.C.S. No.291/2007 may kindly be stayed.” 10. Learned 4th Jt. Civil Judge, Senior Division, by order dated 18.6.2009, was pleased to reject the application Exhibit 13 filed by the present applicant/ defendant No.1 for dismissal of the suit and rejection of the plaint under Order VII Rule 11(d) of the Civil Procedure Code. Being aggrieved by the impugned order, this Civil Revision Application is filed by the original defendant. 11. This Court, on 10.8.2009, heard the application for admission and this Court was pleased to issue notice to the respondents with further observation that the matter shall be heard finally at the stage of admission. Thereafter, again matter was listed for further hearing on 7.10.2009. On said date, this Court was pleased to issue Rule. 12. In spite of service of notice on the respondents, the respondents have not appeared in person or they have not engaged 9 C.R.A. No.86/2009 any Advocate to represent their case. Even no reply is filed on record by them. 13. The matter was taken up for final hearing on 24.6.2011. The matter remained part heard. Again matter was taken up for final hearing on 27.6.2011. again matter remained part heard, therefore, again it was taken up for final hearing on 20.7.2011 when the counsel for the applicant concluded the arguments. However, none appeared for respondent Nos.1 and 2. Therefore, the pleadings in the Civil Revision Application remained uncontroverted. 14. The learned counsel appearing for the revision applicant submitted that, the trial Court has completely proceeded on different footing and proceeded to explain the period of limitation in the impugned judgment. It is the contention of the counsel for applicant that, neither the issue of limitation was anywhere stated in the application nor it was argued before the Court. According to the learned counsel for the applicant, it was the contention of the applicant that the plaint is liable to be rejected because it is barred by provisions laid down under Order II Rule 2 read with Order 7 Rule 11(d) of the Civil Procedure Code and not by law of limitation. Therefore, according to the counsel for the applicant, the Court below has not applied its mind to the application of the applicant and has totally 10 C.R.A. No.86/2009 misconsidered the submissions made by the applicant. The impugned order is passed on hypertechnical and imaginary grounds not raised by the applicant. It is also argued that the earlier suit bearing Regular Civil Suit No.1000/2006 is founded on the same cause of action on which the present suit i.e. Regular Civil Suit No.291/2007 is based. The cause of action in both the suits are identical in nature and the media upon which the respondent prays to the Court to arrive at a conclusion in his favour is the same in both the suits. It is further submitted that, bare perusal of comparison of the plaints in both the suits unequivocally establish that suit is between the same parties over the same subject matter and upon the same facts and pleadings and upon the same cause of action. It is further submitted that, the trial Court should have concluded that the relief in the earlier Regular Civil Suit No.1000/2006 was for perpetual injunction restraining the transfer of vehicle, which is the relief prayed for in the suit Regular Civil Suit No.291/2007 also. It is further submitted that, even on cursory glance upon the pleadings in both the suits, it is crystal clear that the relief of recovery of Rs.45,850/- has not been prayed for in the Regular Civil Suit No.1000/2006, but has been prayed in Regular Civil Suit No. 291/2007. The reliefs claimed in the later suit were well within the knowledge of plaintiff/ respondent at the time of filing earlier suit i.e. Regular Civil Suit No.1000/2006 as all allegations made in the earlier suit were same as those stated in the subsequent suit i.e. Regular Civil 11 C.R.A. No.86/2009 Suit No.291/2007 and, therefore, the trial Court should have considered that, the respondent No.1 omitted to seek the relief based on the same cause of action of the earlier suit without the leave of the Court. Therefore, according to the learned counsel for the applicant, the plaintiff/ respondent is debarred from suing afterwards for the said relief. The learned counsel placed reliance on the report judgment of this Court in the case of Gajanan R. Salvi Vs. Satish Shankar Gupte 7 ors. [ 2004 (Supp 2) BCR 917] and submitted that the provisions of Order II Rule 2(3) of the Civil Procedure Code is aimed for avoiding multiplicity of suit and mere comparison of reliefs or variance in few allegations here or there have no relevance. What is to be seen is, whether foundation in previous suit as well as present suit is one and the same and further what type of rulings would have been there available for seeking relief in previous suit that was prayed. ” Therefore, according to the learned counsel for the applicant, the foundation in the earlier suit and in subsequent suit is the same and evidence that would be required is also the same, therefore, if the applicant has omitted to seek relief in earlier suit, he cannot seek the same relief in subsequent suit without seeking permission of the Court. The learned counsel further invited my attention to the reported judgment of the Division Bench of this Court in case of M.V. x.press annapurana & anr. Vs. Gitanjali Woolens Pvt. Ltd. & ors. [2011(3) ALL MR 604] and in particular, head note ‘A’ of the said judgment. 12 C.R.A. No.86/2009 Therefore, the learned counsel appearing for the applicant would submit that this Civil Revision Application may be allowed. 15. I have given due consideration to the submissions advanced by the counsel for the applicant, perused the grounds taken in the Civil Revision Application, annexures thereto and in particular the plaint of Regular Civil Suit No.1000/2006 and also Regular Civil Suit No.291/2007 and impugned judgment and order assailed in this Civil Revision Application. Bare perusal of the impugned judgment would show that there is total non application of the mind by the trial Court to the issues addressed in the application and relief prayed therein. So far contention of the applicant that the earlier Regular Civil Suit No.1000/2006 and subsequent Regular Civil Suit No.291/2007 are filed for same cause of action and on same foundational facts has not been properly gone into by the 4th Jt. Civil Judge, Senior Division, Aurangabad. From the perusal of discussion in the impugned judgment, it appears that, the Court has addressed itself on completely different points and by cryptic reasoning concluded that provisions of Order II Rule 2 of the Civil Procedure Code are not applicable and, rejected the application of the applicant at Exh. 13. 13 C.R.A. No.86/2009 Before going to the facts of the present case, at this stage, it would be appropriate to refer to the provisions of Order II Rule 2(3) of the Civil Procedure Code, which is reproduced hereineblow : “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. Explanation:- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” 16. The Constitutional Bench of the Supreme Court had occasion to consider the provisions of Order II Rule 2 (3) of the Civil Procedure Code. In the case of Gurbux Singh Vs. Bhooralal [ AIR 1964 SC 1810 ], while interpreting the provisions of Order II Rule 2 (3) of the Civil Procedure Code and Section 11, the Supreme Court held that, the plea of bar under Order 2 Rule 2(3) of the Civil Procedure Code should be established satisfactorily by defendant and cannot be presumed on basis of inferential reasoning. The defendant to file in evidence pleadings in previous suit. The Hon’ble Supreme Court held :- “In order that a plea of bar under O.2 R.2(3), Civil Procedure Code should succeed the defendant who 14 C.R.A. No.86/2009 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.” 17. Therefore, the perusal of above quoted passage from the judgment of the Supreme Court would make it clear that, the defendant who raises the plea of bar under Order II Rule 2 (3) of the Civil Procedure Code may make out that, the second suit is in respect of the same cause of action as that on which the previous suit was based, in respect of that cause of action, the plaintiff was entitled to more than one relief, that being thus entitled to more than one relief, the plaintiff, without leave from Court, ousted to some of the reliefs from which the second suit had been filed.” It is also clear from the reading of the said judgment that, to establish the plea the defendant should place on record the pleadings in the previous suit. 18. Yet, in another reported judgment in case of Dayaram Raghobaji Belsare Vs. Vishrantibai George Levet [ 1990 Mh.L.J. 227 ], this Court held that more than one reliefs were available to the plaintiff on 28.3.1985 including possession and damages but none of these reliefs had been claimed and what was claimed was only the relief of injunction, other reliefs were omitted. The case thus clearly fell within 15 C.R.A. No.86/2009 the mischief of Order 2, Rule 2(3) of the Code of Civil Procedure. If the cause of action gave occasion for and formed the foundation of the subsequently filed suit then the averments to the effect that on 22.3.1985 itself possession was lost and that the defendant had come in possession could not be ignored. If this is the cause of action then the plaintiff could have claimed legitimately the relief of possession in the earlier suit. On 28.3.1985 when the suit was instituted earlier the relief of possession and damages was already available but these reliefs were not claimed. Consequently when more than one reliefs were available to the plaintiff but the plaintiff omitted to claim those reliefs the said omission did not entitle the plaintiff to claim in the subsequent suit such a relief. The subsequently filed suit therefore was barred under Order 2, Rule 2(3) of the Code of Civil Procedure. 19. Yet, in another case in case of Canning Miyra Phoenix Limited & ors. Vs. M/s Popular Constructions & ors. [ 1994 (4) Bom. C.R. 414 ], this Court in para 8 and 9 held as under : “8. . . . . . . . . . . . Sub-rule (3) of Rule 2 of Order II of the Code of Civil Procedure provides that the plaintiff shall not afterwards sue for any relief omitted at the time of institution of the first suit except with the leave of the Court. The expression “shall not afterwards sue for any relief except with the leave of the Court” makes it clear that grant of leave under sub-rule (3) is a condition precedent for institution of the second suit. It is not open for the plaintiff to 16 C.R.A. No.86/2009 institute second suit without grant of leave and then apply for such leave merely because the first suit is not yet disposed of. In our judgment, though it is not necessary for the plaintiff to seek leave under sub-rule (3) of Rule 2 before institution of the first suit, such leave must be sought before institution of the second suit provided the first suit is pending hearing before the trial Court. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The leave to institute second suit can be sought at any time during the pendency of the first suit but such leave must be obtained prior to the date of institution of the second suit. The question as to whether leave should be granted under sub-rule (3) of Rule 2 will depend upon the facts and circumstances of each case and the Court will exercise jurisdiction after considering all the circumstances including whether the application is bona fide and whether it is likely to cause any prejudice to the defendants. The Court would grant leave provided the plaintiff is seeking leave for any relief omitted and not in respect of any portion of the claim which was omitted or intentionally relinquished at the time of the institution of the suit.” 20. In case of Bengal Waterproof Limited Vs. Bombay Waterproof Manufacturing Company & anr. [ (1997) 1 SCC 99 ], while interpreting the provisions of Order II Rule 2 (3) of the Civil Procedure Code, the Supreme Court held that the plea of the defendant under said provisions held to be maintainable only if defendant files evidence before the trial Court. It is further held that, the subsequent suit must be in respect of the same cause of action as that on which the previous suit was based. 17 C.R.A. No.86/2009 21. The judgment relied upon by the learned counsel for the applicant in case of Gajanan (cited supra) takes a view that, provisions of Order II Rule 2 (3) of the Civil Procedure Code is aimed for avoiding multiplicity of suit and mere comparison of reliefs or variance in few allegations here or there have no relevance. What is to be seen is, whether foundation in previous suit as well as present suit is one and the same and further what type of rulings would have been there available for seeking relief in previous suit that was prayed. Foundation in suit is same and evidence that would be required is also same, in that case, subsequent suit in to be barred under Order II Rule 2 (3) of the Civil Procedure Code. 22. Another judgment in case of M.V. x.press annapurana (supra) relied upon by