MD. GOLAM ANOWAR Vs. KUMUD RANJAN NATH

JUDGEMENT

(1.) THE Plaintiff who had instituted this suit on 10.8.67 for realisation of sum of Rs. 2,250.00 as arrear house rent has ultimately lost because his suit has been held not maintainable being hit by the provision of Order 2, Rule 2 Code of Civil Procedure. The dismissal, however, took place in the fourth round of the legal battle. Once before also the Plaintiff had lost at the hand of the learned trial Court, but on appeal being preferred, the suit was decreed. On the Defendant approaching this Court in S.A. 123/73, this Court after setting aside the impugned judgment remanded the case to see if provision of Order 2, Rule 2 stood in the way of the Plaintiff because of an earlier suit by him. By the impugned judgment this question has been answered in favour of the Defendant.

(2.) IN view of the above history of the litigation, it is not necessary to examine other aspects relating to the suit. It would be enough if the question relating to Order 3, Rule 2 is gone into on which aspect alone I have been addressed by the learned Counsel of the parties. The bar of the provision has been urged because in Title Suit No. 225 of 1967 (a litigation between these very parties relating to the self -same property), the Plaintiff had only prayed for eviction of the Defendant from the premises. It is submitted that as the Plaintiff could have prayed for recovery of the rent in that suit itself which was instituted on 9.6.67, his omission to do so debars him from approaching the Court by filing another suit to claim the same relief.

(3.) TO decide whether cause of action is the same or not, it is apparent that copy of the plaint in the earlier suit must be before the Court, as stated in Harishchandra v. Kailash Chandra : AIR 1975 Raj 14, as without it, this controversy cannot be resolved. Though the copy of the plaint in Title suit No. 225/57 was not produced by the Defendant before the Court trying the present suit. I have not deemed it appropriate to hold against the Defendant solely on this ground, as Shri Laskar for the Plaintiff/Appellant fairly brought to my notice that the same is available along with the records of S.A. 17/71 of this Court which arose out of the eviction suit. I have perused the plaint of the earlier suit so available.