AKSHOY KUMAR GHOSH Vs. MENOKA BALA DASI

JUDGEMENT

(1.) This appeal is by the Defendant and it arises out of a suit for declaration of title, confirmation of possession and permanent injunction. The suit was contested and the material defence was a denial of the Plaintiffs' title and a plea of bar under Order 2, Rule 2 of the Code of Civil Procedure, cause of an earlier suit between the parties, brought by the Plaintiffs against the present Defendant for permanent injunction under Section 54 of the Specific Relief Act, which ended in dismissal, at the appellate stage, with an observation from the appellate Court on that occasion, apparently leaving the question of title to be decided in a properly framed proceeding for the purpose. On the merits, both the Courts below have agreed that the Plaintiffs have proved their title, but the learned Munsif held that the Plaintiffs' present suit was barred under Order 2, Rule 2 of the Code of Civil Procedure by reason of the above previous appellate decision, notwithstanding the reservation, sought to be made by the appellate Court on that occasion by its observation, referred to hereinbefore, which was ineffective or futile in law.

(2.) The learned Subordinate Judge, who heard the appeal in the Court of appeal below, has taken the contrary view on this point under Order 2, Rule 2 of the Code and has held that, even apart from the said observation of the appellate Court on the earlier occasion, the present suit would not be barred by Order 2, Rule 2 of the Code of Civil Procedure by reason of the dismissal of the Plaintiffs' previous suit, as aforesaid.

(3.) It is this point, which really arises for consideration in this appeal and it is this point, which, alone, is urged in support of this appeal, as, obviously, on the merits, the matter is concluded by concurrent findings of fact in favour of the Plaintiffs on the question of their title by the two Courts below. It is somewhat strange that, although the plea in bar under Order 2, Rule 2 of the Code was raised and was put forward for defeating the Plaintiffs' claim, the plaint of the previous suit, which was the foundation of the same and which really contained the cause of action for the said suit, was not put in evidence by the Defendant, who was relying upon the said plea of bar. Before me, Mr. Banerjee, appearing for the Defendant Appellant, realised and recognised this defect, but, as he had a certified copy of the said plaint with him, I looked into the same to ascertain whether the Defendant could have any real grievance in the matter, and it seemed to me that the said plaint was more against the Defendant and more in favour of the Plaintiffs on the above point under Order 2, Rule 2 of the Code. That plaint, evidently, proceeded upon an admitted title of the Plaintiffs and the only cause of action for the said earlier suit was stated there to be a threat of dispossession -unlawful dispossession-by the Defendant, the Plaintiffs title, according to the averments, made therein, not being disputed but admitted by him (Defendant). It is somewhat strange, further, that the learned appellate Judge, on the earlier occasion, read, in that plaint, a controversy about the Plaintiffs' title. Where and how he found it, it is difficult to understand. But, possibly, because of that observation of the learned appellate Judge on the earlier occasion, the Defendant was emboldened to raise here the above plea under Order 2, Rule 2 of the Code. As I have said, however, on the plaint in question, the cause of action was simply an alleged threat of dispossession-unlawful dispossession-as the Plaintiffs' title was not stated to be disputed on the said occasion, and, as it is well known that, for purposes of Order 2, Rule 2 of the Code, it is the immediate cause of action, giving occasion for and forming the foundation of, the previous suit, which, alone, is material [vide, in this connection, The Rajah of Pittapur v. Sri Rajah Venkata Mahipati Surya, 1885 12 IndApp 116, and Md. Hafiz v. Mirza Muhammad Zakariya,1921 26 CalWN 297 (P.C.) and Mohammad Khalil Khan v. Mahbub Ali Mian, 1948 75 IndApp 121] the Court should not look into anything else or beyond the said immediate cause of action, so far as the said earlier or previous suit is concerned. That cause of action, however, was not proved on the said earlier occasion and it was held to be non-existent then or, in other words, no threat of dispossession was there at the time. In the circumstances, I am of opinion that the decision of the learned Subordinate Judge on the present occasion should be affirmed on the simple ground that, in the instant case, Order 2, Rule 2 of the Code will have no application-the present cause of action, resting on dispute as to title and a threat to Plaintiffs' possession, which is real and existent, not having arisen and not having been in existence at the time of the aforesaid previous suit. The instant case is, thus, one of a subsequent and different cause of action, to which Order 2, Rule 2 of the Code can have no manner of application. The plea of bar under Order 2, Rule 2 of the Code of Civil Procedure was, accordingly, rightly overruled by the learned Subordinate Judge, though on different grounds.