C.R. No. 6197 of 2008 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 6197 of 2008 (O&M) Date of Decision : 13.08.2010 Baljinder Kaur .......... Petitioner Versus Avtar Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Gagandeep Singh Sirphikhi, Advocate for the petitioner. Mr. M.S. Bal, Advocate for respondent No.1. **** VINOD K. SHARMA, J. The petitioner by invoking the supervisory jurisdiction of this Court has challenged the order dated 18.3.2008, passed by the learned Civil Judge (Jr. Div.), Batala, vide which the application moved by the petitioner for treating the issue that the suit filed by the plaintiff was barred under Order 2 Rule 2 of the Code of Civil Procedure, as preliminary issue, has been declined. The plaintiff / respondent filed a suit for declaration to the effect, that the plaintiff is owner and in exclusive possession of the suit land, to the extent of half share i.e. 23K-6M; and that defendants No.1 and 2 are owners in possession to the extent of half share measuring 23K-6M at village Ghanie Ke Bangar, Tehsil Batala. Consequential relief was claimed, restraining the C.R. No. 6197 of 2008 -2- ***** defendants from alienating any part and portion of the suit land illegally and unlawfully to anybody. Petitioner / defendant No.3, on notice appeared and filed an application under Section 151 of the Code of Civil Procedure, though, it should be an application under Order 14 Rule 2 of the Code of Civil Procedure, alleging therein, that the plaintiffs had earlier filed a suit, which was dismissed on 27.2.1998, regarding the estate of Gurbux Singh. The plaintiff in said suit claimed his right, on the basis of Will dated 12.2.1994. The appeal filed by the plaintiff was also dismissed by the learned Addl. District Judge, Gurdaspur on 23.3.2002. The contention raised was, that the suit was barred under Order 2 Rule 2 of the Code of Civil procedure. The application was contested, on the ground, that the objection raised by the defendant / petitioner in the written statement were not competent. It was the stand of the plaintiff / respondent, that the application was filed to delay the disposal of application filed under Section 65 of the Indian Evidence Act by the plaintiff. The learned trial Court held, that the suit filed by the plaintiff was based on the Will dated 3.1.1986, said to have been executed by Gurbux Singh deceased, in favour of the plaintiff and Didar Singh defendant No.1 in equal shares. The learned trial Court held, that all issues are to be adjudicated together, which will arise from the pleadings of the parties. The issue of Order 2 Rule 2 of the Code of Civil Procedure could not be treated as preliminary issue, to reject the plaint. C.R. No. 6197 of 2008 -3- ***** Mr. Gagandeep Singh Sirphiki, learned counsel appearing on behalf of the petitioner has challenged the impugned order by contending, that under Order 14 Rule 2 of the Code of Civil Procedure, issue of res judicata could be treated as preliminary issue. The contention of the learned counsel for the petitioner was, that in view of the earlier decision, the present suit was barred by the principle of res judicata. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Miss Meera Sharma Vs. Jagjit Singh 2007 (2) R.C.R.(Civil) 44, wherein this Court had laid down as under :- “14. I have considered the arguments raised by the learned counsel for the parties and find that in the present case the facts are not in dispute and that in the earlier suit filed by the petitioner on the same subject matter, the learned trial Court was pleased to grant permanent injunction restraining the respondent herein from dispossessing the petitioner except in due course of law. The reason for passing of the said decree was that the respondent by way of agreement to sell had put the petitioner in possession of the property in dispute and, therefore, it was not open to him to dispossess the petitioner except following the due process of law. The facts thus regarding the previous suit are not in dispute. The Hon'ble Supreme Court in the case of Abdul Rahman V. Prasony Bai and another, 2003(1) RCR (Civil) 236 (SC) : C.R. No. 6197 of 2008 -4- ***** (2003) SCC 488 has been pleased to lay down as under:- “ For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a civil court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/or constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. Thus the conjoint reading of judgments relied upon by the learned counsel for the parties, it has to be held that when the facts are not in dispute, then it is always open to the Court learned trial Court to treat the issue of res judicata as preliminary issue as the suit can be finally disposed of on the basis of evidence to be recorded on the said issue.” The contention of the learned counsel for the petitioner is totally misconceived. The issues having not been framed so far, therefore, there was no question, whatsoever, to treat the issue of res judicata or issue that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure, as preliminary issue, as contended. Prima facie, the plea of res judicata is not available to the petitioner C.R. No. 6197 of 2008 -5- ***** for the reason that though the parties in the previous suit and the present suit are the same, but the cause of action is different. The earlier suit filed by the plaintiff was on the basis of Will dated 12.2.1994, whereas the present suit has been filed by claiming right under the Will dated 3.1.1986. It was for the reason that the preliminary objection raised by the petitioner in the written statement was that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. As already observed above, even before the issues were framed, an application under Section 151 of the Code of Civil Procedure was moved for rejection of the plaint, in view of the preliminary objection raised that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. The learned trial Court, therefore, rejected the application by recording that all the issues arising from the pleadings of the parties are required to be framed and adjudicated upon together. The learned trial Court further held that it was not justified to decide the preliminary issues raised in the suit first. The contention of the learned counsel for the petitioner that the suit was liable to be dismissed under Order 2 Rule 2 of the Code of Civil Procedure also can not be accepted, as the question whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure can be decided after the parties are allowed to lead evidence in support of this issue. The Hon'ble Supreme Court in the case of Gurbux Singh v. Bhooralal AIR 1964 Supreme Court 1810 (1), has been pleased to lay down as under :- C.R. No. 6197 of 2008 -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 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. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that a plea of a bar under O. 2 R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. The cause of action in the previous suit would be C.R. No. 6197 of 2008 -7- ***** the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the relief which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' in the previous suit one need not necessarily infer that the possession of the defendants was alleged to be wrongful. It is also possible that the expression has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. In view of the law laid down by the Hon'ble Supreme Court, the learned trial Court was right in coming to the conclusion, that the plea of bar of suit under Order 2 Rule 2 of the Code of Civil Procedure could not be invoked to claim the dismissal of suit. Even otherwise, the application moved by the petitioner was pre-mature as C.R. No. 6197 of 2008 -8- ***** reading of Order shows that issues have not been framed so far, therefore, the application at this stage was not competent. For the reasons stated, there is no merit in this revision petition, which is ordered to be dismissed, but with no order as to costs. 13.08.2010 (VINOD K. SHARMA) 'sp' JUDGE