P V KOTHANDARAMA RAJU Vs. COMMON FUND BELONGING TO SENGUNTHA MUDALIAR VISWABRAHMINS DEVANGA CHETTIAR PATTAM KOTTARS BHOOPALARAJAPATHI SRIUVAIKUDI VELLAR OF PALAYAPALAYAM PUDUPALAYAM

JUDGEMENT

(1.) S.A.No.510 of 1984--This appeal arises out of a suit for possession and recovery of damages from January, 1978 to April, 1978. The title of the plaintiff is not in dispute. The only defence to the suit was that it was barred by the provisions of Or.2, R.2, C.P.C. Admittedly the plaintiff had filed a suit earlier as O.S.A.No.17 of 1978 on the file of the District Munsif of Srivilliputhur. In that suit the prayer was for recovery of Rs.3,045 with interest thereon by way of damages for use and occupation. The cause of action for the suit was stated to be the trespass committed by the defendant on 10.1.1975. The present suit is filed for recovery of possession as well as damages for the subsequent period.

(2.) The trial Court took the view that the suit was barred by Or.2, R.2, C.P.C., and dismissed the same. On appeal that conclusion was reversed and the learned appellate Judge held that the suit was not barred by Or.2, R.2, C.P.C.

(3.) In this second appeal learned counsel for the appellant relied on a decision of this Court in GNANAPRAKASAM v. SABASTHI AMMAL, (1980)1 M.L.J. 182. In that case a suit was filed for recovery of possession and for past and future mesne profits. That suit was dismissed and a subsequent suit was filed for cancellation of a document on the ground that it was vitiated by fraud and misrepresentation. After setting out the principles relating to the bar of suit under Or.2, R.2, C.P.C., and after referring to the decision of the Supreme Court in GURBUX SINGH v. BHOORALAL, (1964)1 S.C.W.R. 668: A.I.R. 1964 S.C. 1810, V. Ratnam, J, held that the second suit was barred by Or.2, R.2, C.P.C. He observed that the omission of the plaintiff in the earlier suit to sue for all the reliefs arising on the same cause of action viz., the execution of the document in question could not be got over either by stating that the cause of action of the later suit was different or that it arose only after the declaration that the document should be set aside. He held that the transaction was one and indivisible and when once such a transaction was set at naught all things done thereunder must also be restored and therefore the plaintiff should have sought for cancellation of the document also in the earlier suit. Learned counsel relies upon the principles enunciated in that judgment. In fact, those principles were laid down by the Supreme Court in GURBUX SINGH V. BHOORALAL, (1964)1 S.C.W.R. 668: A.I.R. 1964 S.C. 1810. They are as follows: