SURESH JAIN Vs. SUNIL KUMAR

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal is to the impugned order of the Trial Court dated 11.1.2011, and by which order, the Trial Court allowed the application of the respondent/defendant under Order 7 Rule 11 Civil Procedure Code and rejected the plaint as being barred by Order 2 Rule 2 Civil Procedure Code. As per the provision of Order 2 Rule 2 Civil Procedure Code, no person can file a subsequent suit for a relief, if, an earlier suit on the basis of the same cause of action was filed however therein the relief which has been claimed in the subsequent suit is not claimed. The provision of Order 2 Rule 2 Civil Procedure Code only bars filing of a fresh suit on the basis of the cause of action alleged in the earlier suit/plaint and the provision of Order 2 Rule 2 Civil Procedure Code does not bar filing of a fresh suit on a different cause of action. A cause of action is a complete bundle of facts required to be averred and proved in order to get the relief in the suit. One cause of action may have certain common ingredients/facts with other cause of action, however, because of such common facts, it cannot mean that necessarily both the causes of action will be identical. A cause of action is identical if all the averments in the earlier suit/plaint which are required to be made for claiming the relief, are also the identical facts which are alleged in the subsequent/second suit. If certain ingredients in the second suit for pleading the cause of action in the second suit which is based on different cause of action, are not averred in the earlier suit/plaint then the provision of order 2 Rule 2 Civil Procedure Code cannot apply.

(2.) The facts are that the appellant/plaintiff filed the subject suit on the averments that he was the owner of a piece of land admeasuring 1000 sq. yards situated in Khasra No. 56/3, Village Mundka, Delhi and which was purchased by him vide registered sale deed dated 6.8.1987. The plaintiff is dealing in the business of trading of metal and scrap and grinding of zinc and ash and for which purpose, plaintiff had installed a number of machines in the premises. One Sh. Mandeep Singh Batra in collusion with the defendant, who was posted as a Sub - Inspector at Police Station Nangloi, on the basis of forged and fabricated documents laid a false claim to the property and to give vacant possession of the suit property, the defendant removed the installed machines and the raw material lying in the factory on 5.4.2008, 8.4.2008, 11.4.2008. Being the investigating officer, the defendant was to deposit all the machines and the raw material seized from the plaintiff in the Police Station, but they were not deposited. Even small items and tools lifted from the factory do not find mention in the list of seized articles. The subject suit therefore came to be filed by the appellant/plaintiff for the loss of raw material for ? 24,50,891/- and ? 1 lac spent on the reinstallation of the machines. The plaintiff filed the present suit restricting his claim to ? 20 lacs.

(3.) The appellant/plaintiff had earlier filed a suit in which, the appellant/plaintiff had sought the relief of declaration and injunction and had sought damages calculated at ? 50,000/- per month against the defendant herein on account of loss of earnings caused due to removal of machines which had rendered the plaintiff jobless. In this earlier suit filed for loss of earnings, the appellant/plaintiff had not laid out the cause of action of the misappropriation of the articles which is the cause of action in the present suit.