AMAR SINGH Vs. SADHU SINGH

JUDGEMENT

(1.) The question involved in this second appeal filed by Amar Singh against the judgment and decree of learned District Judge Bhatinda, is whether the present suit is barred under Order 2 Rule 2 of the Civil Procedure Code.

(2.) The above sub-rule makes it clear that where a plaintiff is entitled to more than one relief in respect of the same cause of action he must sue for all or any of such reliefs and if he omits, except with the leave of the Court, to do so he shall not afterwards sue for any of the reliefs so omitted. According to the learned counsel for the plaintiff-appellant, the cause of action for the plaintiff in the former suit was different from the cause of action in the present suit. The learned counsel has in this connection relied upon two authorities. The first authority is the one reported in 14 Q.B.D. 141 (Brundsen V/s. Humphrey). In this case, the plaintiff brought an action for damage to his cab occasioned by the negligence of the defendant's servant and having recovered the amount claimed, afterwards brought on action against the defendant claiming damages for personal injury sustained by the plaintiff through the same negligence. It was held by a majority that the second suit was maintainable. The above authority was followed in case Bakshi V/s. Dasaunda Singh,1955 ILR(P&H) 395 In this case, the plaintiff sued for a declaration regarding half portion of a vacant site claiming to be heir of B. Subsequently, the plaintiffs filed a second suit with respect to the other half of the vacant site on the ground that they were entitled to it as the grand sons of K.S. The defence was that the suit was barred under Order 2 Rule 2. It was held that the suit was not barred under Order 2 Rule 2 and the cause of action in the two suits was different. It was also observed that one great criterion for determining whether the cause of action in the two suits is the same was whether the same evidence could maintain both the actions. In my opinion, the appellant cannot derive much benefit from the above mentioned two authorities. In both these authorities the Courts after taking into consideration the circumstances of these cases came to the conclusion that the causes of action in the earlier suits and the later suits were different. So far as the instant case is concerned, I find that it was the construction of the drain in dispute by Sadhu Singh defendant which gave rise to the earlier suit as well as the present suit by Amrik Singh plaintiff. In both the earlier suits as well as in the present suit the case of the plaintiff was that the drain which passed in front of the plaintiff's house was a source of inconvenience to him. In the earlier suit the plaintiff also alleged that the drain passed through the site belonging to the plaintiff and caused damage to his wall. In the present suit the plaintiff has omitted the last two averments. The objection about the drain which has been constructed by Sadhu Singh defendant, being a source of inconvenience to him, however, continues to be the same. In my opinion, the plaintiff should have sought the relief which he now seeks, in the earlier suit. The mere omission in the present plaint of some of the averments, which were made in the earlier plaint by the plaintiff would not entitle him to maintain another suit in respect of that drain. The same evidence would be required to sustain the allegation of the plaintiff in the two suits that the drain was a source of inconvenience to him. The law, in my opinion does not contemplate that a plaintiff by merely omitting some of the allegations which were made by him in the earlier suit can maintain a subsequent suit and claim new relief after dismissal of the earlier suit. It was the construction of the drain by the defendant which gave the plaintiff the cause of action in the earlier and the present suit and it cannot be said that the cause of action in the two suits is different. The plaintiff's suit is, therefore, barred under Order 2 Rule 2 Civil Procedure Code. The appeal consequently fails and is dismissed. In the circumstances of the case,

(3.) I leave the parties to bear their own costs of the appeal.