Case: Gurbux Singh Vs. Bhooralal

that we consider 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. It is common ground that the pleadings in C. S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2 R. 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the sage of the appeal the learned District Judge noticed this lacuna in the appellants case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under O. 2 R. 2, Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read:"The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two court have, however, freely cited for the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court."8. It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleading in the earlier suit part of the record in the present suit. We’re unable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit.9. Learned Counsel for the appellant, however, urged that in his plaint in the present suit the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profit. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. 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 under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be 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 reliefs 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 therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits 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 we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming.10.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not consider it necessary to examine this conflict of judicial opinion in this case as, in our opinion, the learned District Judge was right in holding that the appellant had not placed before the Court material for the purpose of founding a plea of O. 2 R. 2, Civil Procedureunable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the presentare unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. 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 under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be 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 reliefs 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 therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits 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 we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming.