Case: Gurbux Singh Vs. Bhooralal

1. The facts giving rise to this appeal, by special leave, are briefly as follows: The respondent-Bhooralal-brought a suit-Civil Suit 20 of 1954- in the Court of the Subordinate Judge, First Class, Kekri against the appellant claiming possession of certain property which was described in the plaint and for mesne profits. The allegation in the plaint was that the plaintiff was the absolute owner of the said property of which the defendant was in wrongful possession and that in spite of demands he had failed to vacate the same and was therefore liable to pay the mesne profits claimed. In the plaint he made reference to a previous suit that had been filed by him and his mother (C. C. 28 of 1950) wherein a claim had been made against the defendant for the recovery of the mesne profits in regard to the same property for the period ending with February 10, 1950. It was also stated that mesne profits had been decreed in the said suit. In the Written Statement that was filed by the present appellant, besides disputing the claim of the plaintiff to the reliefs prayed for on the merits, a technical plea to the maintainability of the suit was also raised in theseO. 2 R. 2, civil Procedure code is a bar to the suit. When the suit referred to in paragraph 2 of the plaint was filed the plaintiff had a cause of action for the reliefs also. He having omitted to sue for possession in that suit, is now barred from claiming relief of possession. No second suit for recovery of mesne profits is maintainable in law. Since the plaintiff had lost his remedy for the relief of possession he cannot seek recovery of mesne profitsthese pleadings the learned Subordinate Judge framed 5 issues and of these the 4th issueO.2.R.2, Civil Procedure Code is aevidence was led by the parties issue No. 4 was argued before the learned trial Judge as a preliminary issue and the Court recorded a finding that the suit was barred by the provision named and directed the dismissal of the suit.2. The plaintiff preferred an appeal from this decree to the Additional District Judge and the appellate Court considered this plea as regards the bar under O. 2 R. 2, Civil Procedure Code on two alternative bases. In the first place, the learned District Judge pointed out that the pleadings in the earlier suit - C. S. 28 of 1950 - had not been filed in the case and made part of the record, so that it was not known what the precise allegations of the plaintiff in his previous suit were. For this reason the learned district Judge held that the plea of a bar under 0. 2. R. 2., Civil Procedure code should not have been entertained at all. He also considered the question as to whether, if the plea was available, it could have succeeded. On this he referred to the conflict of judicial opinion on this point and held that if the point did arise for decision he would have decided in favour of the plaintiff and treated the case of action for a suit for mesne profits as different from the case of action for the relief of possession of property from a trespasser. In view, however, of his finding on the first point as to there being no material on the record to justify the plea of a bar under 0. 2 R. 2 Civil Procedure Code the learned District Judge did not rest his decision on his view of the law as regards the construction of 0. 2 R. 2(3). In the circumstances he set aside the dismissal of the suit and remanded it to the trial Court for being decided on the merits in accordance with the law.3. The defendant- the appellant before us-preferred a second appeal to the High Court of Rajasthan and the learned Single Judge dismissed this appeal. It is from this judgment that the appellants have preferred this appeal after obtaining special leave.

Reasoning: 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.