: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.561 OF 2002 SECOND APPEAL NO.561 OF 2002 SECOND APPEAL NO.561 OF 2002 WITH WITH WITH CIVIL APPLICATION NO.1070 OF 2005 CIVIL APPLICATION NO.1070 OF 2005 CIVIL APPLICATION NO.1070 OF 2005 Baban Nana Manjare ...Appellant V/s. Maruti Bhanudas Dhore & Ors. ...Respondents Mr.R.S. Apte with Mr.M.V. Limaye, Advocates, for the Appellant. Ms.Jai Mhaskar, Advocate, h/f. G.S. Godbole, for Respondent Nos.1 to 6. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 14TH MARCH, 2008. DATE : 14TH MARCH, 2008. DATE : 14TH MARCH, 2008. P.C.: P.C.: P.C.: 1. The submissions of the learned Advocates appearing for the parties were heard yesterday. 2. The Second Appeal is by the original 1st defendant. 1st to 6th respondents are the original plaintiffs. Suit was filed for declaration and partition. The suit was decreed by the Trial Court. The Appeal preferred by the present appellant to the District Court has been dismissed. Perusal of the Judgment of the Appellate Court shows that the only submission made before the Appellate Court was that the suit filed by the plaintiffs was barred by sub-rule 3 of Rule 2 of Order II of the Code of Civil : 2 : Procedure, 1908. The Appellate Court observed that the plea of bar sought to be raised in the Appeal was not raised by the appellant in the written statement. The Appellate Court further observed that the said plea was not raised in the Memorandum of Appeal. The Appellate Court held that the plea of bar under sub-rule 3 of Rule 2 of Order II of the Code of Civil Procedure, 1908 has not been pleaded and established. 3. When this Second Appeal came up for admission before this Court on 17th March, 2005, a submission was made by the Advocate appearing for the 1st to 6th respondents that in view of the decision of the Apex Court in the case of Gurbux Singh V/s. Bhooralal [AIR 1964 SC 1810], unless a copy of the plaint in earlier suit was filed on the record, it was not open for the appellant-1st defendant to raise the plea which was raised in the 1st Appellate Court. The learned Counsel for the appellant sought time to verify whether a copy of the plaint in the earlier suit instituted by the 1st to 6th respondents was placed on record of the Trial Court. Adjournment was granted to the appellant to ascertain the said position. 4. The learned Counsel appearing for the appellant pointed out that a copy of the plaint in the : 3 : earlier suit filed by the 1st to 6th respondents was not filed in the Courts below. He pointed out that Civil Application No.1070 of 2005 has been filed by the appellant praying for permission to file a true copy of the plaint in the earlier suit. He submitted that the said application deserves to be allowed. 5. His second submission is that perusal of the plaint in the present suit filed by the 1st to 6th respondents in which impugned Decree has been passed clearly shows that bar under sub-rule 3 of Rule 2 of Order II of the said Code on the basis of earlier suit (i.e. Regular Civil Suit No.167 of 1991) filed by the 1st to 6th respondents is squarely attracted. He submitted that the pleadings in the present suit and material on record is sufficient to prove that the bar was attracted and, therefore, even if a copy of the plaint in earlier suit was not produced on record of the suit, it is open for the Court to consider the plea raised by the appellant. He, therefore, submitted that the Appellate Court has committed gross error by not considering the said plea on merits. 6. I have carefully considered the submissions. It will be necessary to refer to the decision of the Apex Court in the case of Gurbux Singh V/s. Bhooralal : 4 : (supra). In the case before the Apex Court, a plea of bar under sub-rule 3 of Rule 2 of Order II was raised. The Apex Court referred to the Judgment of the High Court in which it was mentioned that the plaint, written statement and the Judgment in the earlier suit was not filed by the parties to the suit. The High Court had observed that though the said documents were not on record, the Courts below had freely cited for the record of the earlier suit. A submission was made before the Apex Court that from the aforesaid observations of the High Court it should be inferred that the parties had by an agreement consented to make the pleadings in the earlier suit a part of the record in the present suit. The Apex Court dealt with the said contentions in paragraph No.7 of the Judgment. In paragraph No.7, the Apex Court held thus:- "Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea we consider that a plea we consider that a plea under O.2 R.2, Civil Procedure Code under O.2 R.2, Civil Procedure Code under O.2 R.2, Civil Procedure Code cannot be made out except on proof of cannot be made out except on proof of cannot be made out except on proof of the plaint in the previous suit the the plaint in the previous suit the the plaint in the previous suit the filing of which is said to create the filing of which is said to create the filing of which is said to create the bar. As the plea is basically founded bar. As the plea is basically founded bar. As the plea is basically founded on the identity of the cause of action on the identity of the cause of action on the identity of the cause of action in the two suits the defence which in the two suits the defence which in the two suits the defence which raises the bar has necessarily to raises the bar has necessarily to raises the bar has necessarily to establish the cause of action in the establish the cause of action in the establish the cause of action in the previous suit. The cause of action previous suit. The cause of action previous suit. The cause of action would be the facts which the plaintiff would be the facts which the plaintiff would be the facts which the plaintiff had then alleged to support the right had then alleged to support the right had then alleged to support the right : 5 : to the relief that he claimed. to the relief that he claimed. to the relief that he claimed. Without placing before the Court the Without placing before the Court the Without placing before the Court the plaint in which those facts were plaint in which those facts were plaint in which those facts were alleged, the defendant cannot invite alleged, the defendant cannot invite alleged, the defendant cannot invite the Court to speculate or infer by a the Court to speculate or infer by a the Court to speculate or infer by a process of deduction what those facts process of deduction what those facts process of deduction what those facts might be with reference to the reliefs might be with reference to the reliefs might be with reference to the reliefs which were then claimed. which were then claimed. which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant." (Emphasis added) 7. Thus, what is held by the Apex Court is that in absence of a copy of the plaint in the previous suit being placed on record, the plea of bar under sub-rule 3 of Rule 2 of Order II cannot be considered. The Apex Court specifically held that in absence of a copy of the plaint, the defendant cannot invite the Court by a speculative or inferential process of deduction to find out as to what was the cause of action in the earlier suit. 8. In view of what is held by the Apex Court, in absence of a copy of the plaint in earlier suit, only on the basis of the pleadings in the present suit and material on record, by inferential process of deduction, it cannot be ascertained as to what was the cause of action on the basis of which earlier suit was filed. 9. It will be also necessary to refer to another : 6 : decision of the Apex Court in the case of Dulip Singh V/s. Mehar Singh Rathee and Ors. [(2004) 7 SCC 650]. In paragraph No.12 of the said decision, the Apex Court dealt with the plea of bar under Rule 2 of Order 2 of the said Code. The Apex Court held thus:- "Firstly, the plea of applicability of Order 2 Rule 2 CPC and the subsequent suit being barred was not taken by the appellant in his written statement filed in response to the notice of the suit nor was any issue framed on the point. The sine qua non for applicability of Order 2 Rule 2 CPC is that a person entitled to more than one relief in respect of the same cause of action has omitted to sue for some relief without the leave of the court. When an objection regarding When an objection regarding When an objection regarding bar to the filing of the suit under bar to the filing of the suit under bar to the filing of the suit under Order 2 Rule 2 CPC is taken, it is Order 2 Rule 2 CPC is taken, it is Order 2 Rule 2 CPC is taken, it is essential for the court to know what essential for the court to know what essential for the court to know what exactly was the cause of action which exactly was the cause of action which exactly was the cause of action which was alleged in the previous suit in was alleged in the previous suit in was alleged in the previous suit in order that it might be in a position order that it might be in a position order that it might be in a position to appreciate whether the cause of to appreciate whether the cause of to appreciate whether the cause of action alleged in the second suit is action alleged in the second suit is action alleged in the second suit is identical with the one that was the identical with the one that was the identical with the one that was the subject matter of the previous suit. subject matter of the previous suit. subject matter of the previous suit. As the plea had not been raised in the As the plea had not been raised in the As the plea had not been raised in the written statement and no issue framed written statement and no issue framed written statement and no issue framed on this point, no opportunity was on this point, no opportunity was on this point, no opportunity was provided to Respondent 1 to lead provided to Respondent 1 to lead provided to Respondent 1 to lead evidence to rebut the same. In the evidence to rebut the same. In the evidence to rebut the same. In the absence of pleadings and proof of absence of pleadings and proof of absence of pleadings and proof of identity of cause of action, the identity of cause of action, the identity of cause of action, the appellant could not be permitted to appellant could not be permitted to appellant could not be permitted to raise the plea of bar of Order 2 Rule raise the plea of bar of Order 2 Rule raise the plea of bar of Order 2 Rule 2 CPC." 2 CPC." 2 CPC." (Emphasis added) 10. In the present case, the appellant had not raised the plea of the bar in the written statement. The perusal of the Judgment of the Trial Court shows : 7 : that there was no issue framed on the bar under Rule 2 of Order II of the said Code. As held by the Apex Court when such a plea is raised, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of the earlier suit. 11. Thus in the present case the Appellate Court was right in holding that in absence of pleadings and proof of identity of cause of action, the appellant was not entitled to raise the said plea. The only material from which a cause of action in earlier suit can be ascertained is a copy of the plaint in earlier suit. A copy of the plaint in the previous suit was admittedly not produced. Therefore, it is not possible to find fault with the view taken by the Appellate Court. 12. The other question to be decided is whether at this stage the appellant can be allowed to produce a copy of the plaint. The suit filed by the 1st to 6th respondents in the year 1990 was decided on 1st November, 1996. The 1st Appellate Court dismissed the : 8 : Appeal on 18th January, 2001. The Second Appeal was filed in this Court on 23rd October, 2002. The appellant was aware as to what was held against him by the 1st Appellate Court by the impugned Judgment and Decree dated 18th January, 2001. The application for seeking permission to produce a copy of the plaint was filed on 28th April, 2005. Granting this application in the year 2008 will have a very unjust result of reopening the decree passed in the suit of the year 1990. Moreover, there is no explanation whatsoever as to what prevented the appellant from filing a copy of the plaint on record during the pendency of the suit or the Appeal before the Courts below. It must be noted here that in the First Appeal preferred by the appellant, the challenge to the decree passed in the suit was only on the ground of bar under Rule 2 of Order II of the Code of Civil Procedure, 1908. No other challenge was argued before the 1st Appellate Court. Hence, the Civil Application made by the appellant deserves to be rejected. 13. Hence, I pass following order:- "O R D E R" "O R D E R" "O R D E R" (a). Civil Application No.1070 of 2005 is : 9 : rejected. (b). Second Appeal No.561 of 2002 is dismissed with no orders as to costs. (c). Civil Application No.791 of 2002 does not survive and the same is disposed of. (d). At this stage on the prayer made by the Advocate for the applicant, ad-interim relief granted on 12th August, 2002 in Civil Application No.791 of 2002 will continue to operate for a period of twelve weeks from today. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]