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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 4215-4216 OF   2007

Inbasegaran and another ……Appellant(s)

versus

S. Natarajan (Dead) thr. Lrs.     …..Respondent(s)

WITH CIVIL APPEAL NOs.4217-4218 OF   2007

S. Natarajan (Dead) thr. Lrs.     ……Appellant(s)

versus

Inbasegaran and another …..Respondent(s)

CIVIL APPEAL NOs.4219 OF   2007

S. Natarajan (Dead) thr. Lrs.    ……Appellant(s)

versus

Inbasegaran …..Respondent(s)

JUDGMENT

M.Y. EQBAL, J.

These appeals are directed against the common judgment  

and  order  dated  30.4.2004  passed  by  the  High  Court  of  

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Judicature  at  Madras  in  A.S.  Nos.665  and  666  of  2001,  

whereby the appeals preferred by S. Natarajan were allowed.  

This matter pertains to a property bearing S.No.159/10 and  

11, Plot No.436, Tallakulam Village, Madurai City, measuring  

6980 sq.ft., which was allotted to one S. Natarajan on lease-

cum-sale  agreement  by  the  Housing  Board.   S.  Natarajan,  

original defendant in O.S. Nos.445/85 & 252/86 and plaintiff  

in O.S. No.3/86 alleged to have entered into a sale agreement  

with  respect  to  the  suit  property  with  one  Inbasegaran.  

Therefore,  for  the  sake  of  convenience  S.  Natarajan  and  

Inbasegaran  are  hereinafter  respectively  referred  to  as  

‘defendant’ and ‘plaintiff’.  

2. The facts giving rise to the present appeals are that the  

plaintiff  filed  a  suit  being  O.S.  No.252 of  1986 for  specific  

performance of the agreement for sale dated 19.1.1984 with  

respect to aforesaid suit schedule property.  According to him,  

the said land was allotted to the defendant on lease-cum-sale  

agreement on 4.7.1975 by the Tamil Nadu Housing Board (in  

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short,  ‘Housing  Board’).    Since  the  defendant  had  not  

constructed building on the said site for the purpose of getting  

sale  deed  as  contemplated  under  the  lease-cum-sale  

agreement, the Board did not execute the sale deed in favour  

of the defendant.  Hence, he entered into a sale agreement on  

19.1.1984 with the plaintiff.  In the said agreement, he agreed  

to  sell  the  suit  house  site  to  the  plaintiff  for  a  total  

consideration  of  Rs.3,84,220/-  and  received  a  sum  of  

Rs.1,00,000/-  as  advance  in  cash towards  part  of  the  sale  

consideration.   It  is  alleged  that  the  defendant  agreed  that  

after  a  sale  deed  executed  in  his  favour  from the  Housing  

Board he will execute and register the sale deed in favour of  

the plaintiff or his family members after receiving the balance  

sale  consideration.   Time for  performance  of  the  agreement  

was  tentatively  fixed  as  four  months  and  the  same  was  

extended until the defendant got the sale deed executed from  

the Housing Board.  The parties agreed that the plaintiff shall  

prepare  a  plan  for  construction  of  a  building  in  the  said  

property and the defendant will sign the building plan and get  

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the plan approved and the plaintiff thereafter shall construct  

the building in the suit housing plot at his own expenses.   

3. Pursuant  to  the  sale  agreement,  the  plaintiff  took  

possession  of  the  suit  property  and  completed  the  

construction.   According  to  the  plaintiff,  the  defendant  had  

been representing to the plaintiff that he has not yet got the  

sale deed executed in his favour from the Housing Board but  

attempted  to  forcibly  take  possession  of  the  building  

constructed  on  the  suit  property  by  the  plaintiff.   So  the  

plaintiff filed a suit being O.S. No.445/1985 on 11.9.1985 for  

permanent  injunction restraining the defendant  herein from  

taking forcible possession of the building constructed in the  

suit property.  Pending the aforesaid suit, few days after, the  

plaintiff  on  25.4.1986  filed  aforesaid  suit  for  specific  

performance being O.S. No.252 of 1986.  

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4. The defendant pleaded in his written statement that the  

agreement dated 19.1.1984 is not a valid document and the  

plaintiff cannot maintain the suit as he had relinquished his  

right.  It is also stated that the agreement was executed when  

the defendant was not the owner of the site and any sale by  

the defendant was prohibited as per the terms and conditions  

of the lease-cum-sale agreement entered into with the Housing  

Board and so the agreement in question is void, inoperative  

and opposed to law.  The defendant also denied the payment  

of Rs.1,00,000/- in cash as advance as alleged by the plaintiff.  

Even  with  respect  to  the  averment  in  the  plaint  that  the  

plaintiff was permitted to put up construction in the suit site,  

the  same  is  denied.   The  defendant  also  denied  that  the  

plaintiff  put  up  construction  at  his  own  cost.    

The  defendant  further  denied  that  the  plaintiff  was  given  

possession  of  the  suit  property  and  claimed  that  he  never  

handed over possession of the property to the plaintiff at any  

point of time.  It is alleged that the plaintiff is not entitled to a  

decree for specific performance because the agreement dated  

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19.1.1984 no longer subsists.   It is further alleged that the  

subsequent  suit  being  O.S.  No.252/1986  for  specific  

performance is barred under Order 2, Rule 2 of the Code of  

Civil Procedure because the plaintiff who instituted the earlier  

suit  O.S.  No.445/1985,  should  have  included  the  relief  for  

specific performance and, in any event, could not have filed  

O.S. No.252/1986 without any leave of the Court.

5. The  defendant  also  filed  a  suit  being  O.S.  No.3/1986  

seeking  a  decree  for  injunction  restraining  the  purchaser  

(defendants therein) from interfering with his possession and  

enjoyment of the suit property.  The trial court tried all the  

three  suits  together  and  dismissed  the  suits  filed  by  the  

plaintiff  and defendant for  injunction in O.S.  Nos.445/1985  

and  3/1986  and  decreed  the  suit  in  O.S.  No.252/1986  

preferred  by  the  plaintiff  for  specific  performance  with  the  

direction  to  the  defendant  to  execute  and  register  the  sale  

document in favour of the plaintiff.

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6. Aggrieved by the judgment and decree of the trial court,  

the defendant S. Natarajan preferred appeals before the High  

Court being A.S. Nos.665 and 666 of 2001.  

7. High Court  held that  the causes of  action in both the  

suits filed by the appellant are identical, arose from the same  

transaction and that is why the trial court also had a common  

trial  and  decided  the  case  by  a  common  judgment.   The  

plaintiff has not come forward with the suit in O.S. 252/1986  

on the basis of the fact that the sale deed with respect to the  

suit  property  was  obtained  only  on  18.2.1985  by  the  

defendant from the Housing Board and the defendant failed to  

execute the sale  deed in favour of  the plaintiff  pursuant  to  

Ex.A1 agreement and so the prayer sought for in the said suit  

could  have  been  sought  for  even  in  the  Original  Suit  

No.445/1985 as  the  pleading  set  out  in  the  plaint  in  O.S.  

252/1986  was  available  even  on  the  date  when  O.S.  

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No.445/1985 was filed.   Since  the  plaintiff  omitted to  seek  

such a relief and did not obtain the leave of the Court to file  

the  subsequent  suit,  it  amounts  to  relinquishment  of  his  

rights which is sought for in O.S. 252/1986 and he cannot  

sustain the subsequent suit in O.S. 252/1986 for the relief  

sought for in that suit in view of Order 2, Rule 2 of the Code.

8. The  High  Court  formulated  as  many  as  following  six  

points for consideration to decide the appeals:

(1) Whether Ex.A1 is enforceable in law?

(2) Whether the suit in O.S. No.252/1986 is maintainable on  the basis of Ex.A1 in view of variations made in Exs.B7 and B9?

(3) Whether the respondent/plaintiff was ready and willing to  perform his part of the contact?

(4) Whether the suit in O.S. 252/1986 is maintainable in view  of Order 2, Rule 2 of the Code of Civil Procedure?

(5) Whether the relief for the specific performance of the  agreement suit in O.S. 252/1986 can be rejected on the ground  that the respondent/plaintiff has not come to court with clean  hands?

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9. However,  instead  of  deciding  all  the  points,  the  High  

Court took up only Point no.4 and 5 and decided the appeal in  

following three paragraphs:

“13.  Further, in the present case, the parties and the court felt  that in view of common issue, the said suit was to be dealt with  and so the trial  court  in a common judgment  dated 28.7.2000  disposed of the same.  The trial court though framed the issue,  simply rejected that it is not barred by Order 2, Rule 2 of the Code  on assumption that there is a change of cause of action.  So the  said findings of the trial court cannot be sustained in law.  So we  can safely conclude that the suit in O.S. No. 252/1986 is barred  under Order 2, Rule 2 of the Code and so it has to be rejected.

14. Even with respect to Point No.5, it has to be held that the  respondent/plaintiff  has come to court  by filing O.S.  252/1986  with unclean hands.  Though in the plaint filed in O.S. No.3/1986  which  was  filed  on  5.9.1985,  it  is  specifically  stated  that  conditional sale deed dated 18.2.1985 was executed in favour of  the appellant/defendant by the Tamil Nadu Housing Board.  In  O.S.  No.252/1986  which  was  filed  on  5.4.1986,  the  respondent/plaintiff has come forward with the false plea that the  appellant/defendant had been representing to the plaintiff that he  had not yet got the sale deed executed in his favour by the Tamil  Nadu Housing Board, which is contrary to the averment made in  the earlier suit.  Learned counsel for the respondent/plaintiff also  tried to submit that the respondent has no knowledge about the  said document so  as to  enable  him to file  the suit  for  specific  performance  of  the Agreement  on that  basis.   The said plea  is  nothing but false in view of  the specific  averment  made in the  plaint in O.S. No.3/1986.  The said plea that the sale deed is yet  to  be  got  by  the  appellant/defendant  from  the  Tamil  Nadu  Housing Board is a material fact to enforce the right and got the  sale deed by the respondent/plaintiff arose only after getting the  sale  deed  by  the  appellant/defendant  from  the  Tamil  Nadu  Housing  Board  as  contemplated  under  Ex.A1.   The  respondent/plaintiff  suppressed  the  said  material  fact.   Hence,  even on that ground the suit in O.S. 252/1986 has to be rejected  holding that the respondent/plaintiff  is not entitled to equitable  relief of specific performance of the Agreement in view of the above  said fact.

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15. In view of the findings given above with respect to point Nos.4  and 5, we are; not inclined to deal with the other points.”

10. By  impugned  order  dated  30.4.2004,  the  High  Court  

allowed the appeals preferred by the defendant based on Order  

2 Rule 2 with a direction to the defendant to pay the cost of  

construction  (Rs.8,00,000/-)  to  the  plaintiff  and  on  such  

deposit, the plaintiff would hand over the suit property with  

building to the defendant and after handing over the same, he  

can  withdraw  the  aforesaid  amount  along  with  the  money  

already deposited,  if  any.   Hence,  present cross appeals  by  

both sides.  The High Court further held that no other points  

need to considered and decided.  

11. Mr. K. Parasaran, learned senior counsel appearing for  

the  appellants-plaintiff,  assailed  the  impugned  judgment  

passed by the High Court as being erroneous in law as also in  

facts.   Learned  counsel  firstly  drew  our  attention  to  the  

agreement to sell  dated  19.1.1984 and submitted that  the  

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defendant-respondent put a condition in the said agreement  

that the sale deed shall be executed by the defendant in favour  

of the plaintiff only after getting transfer of the lease hold plot  

in  his  favour  by  the  Housing  Board.   However,  pending  

transfer of the property by the Housing Board in favour of the  

defendant-respondent,  the  rowdy  elements  of  the  defendant  

threatened the appellant-plaintiff to dispossess him from the  

building constructed by the plaintiff.  In order to restrain and  

prevent the defendant, the appellant filed a suit for injunction  

being  O.S.  No.445  of  1985  seeking  the  prohibitory  order  

restraining the respondent from dispossession of the plaintiff.   

12. Simultaneously,  before  the  trial  court,  the  defendant-

respondent also filed a suit being O.S. No.3/1986 (13/1985)  

making similar prayer for injunction against the appellant.  In  

the written statement of the said suit, for the first time the  

defendant of the suit (appellant herein) disclosed in paragraph  

4 that the sale deed was executed by the Housing Board in his  

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favour and now the plaintiff of the suit (respondent herein) is  

the absolute owner of the property.  Having  come  to  know  

about the transfer of  the property by the Housing Board in  

favour of the plaintiff, legal notices were given by the appellant  

to the respondent and a regular suit for specific performance  

was filed.   

13. Mr. Parasaran submitted that from bare reading of the  

plaints in two suits, it would be apparently clear that cause of  

action  of  each  of  the  two  suits  by  the  plaintiff  was  quite  

different  and  distinct  and  the  same  would  not  attract  the  

provisions  of  Order  2,  Rule  2  CPC.   Mr.  Parasaran further  

submitted that the trial court had categorically held that the  

provisions of Order 2, Rule 2 shall have no application in the  

facts  and circumstances  of  the  case.    Mr.  Parasaran then  

drew our attention to the agreement dated 19.1.1984 and the  

codicil sale agreement dated 31.4.1984 to show that the period  

of  sale  agreement  between  the  plaintiff-appellant  and  the  

defendant-respondent was further extended in anticipation of  

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the transfer of the property by the Housing Board in favour of  

the defendant.  Lastly, it was contended that the provision of  

Order 2 Rule 2, CPC does not apply where the two suits are  

filed on different cause of action and the counsel relied upon  

the decision of this Court in the cases of  Gurbux Singh vs.  

Bhooralal,  (1964) 7 SCR 831;  Kewal Singh vs. Lajwanti,   

(1980)  1  SCC  290  and  in  the  case  of  Lakshmi  alias  

Bhagyalakshmi and another vs. E. Jayaram (dead) by Lr.,  

(2013) 9 SCC 311.

14. Mr.  R.  Balasubramanian,  learned  senior  counsel  

appearing for the respondent-defendant, firstly submitted that  

if  the  allegations  made  in  the  plaint  filed  by  the  plaintiff-

appellant are read together it would be clear that the plaintiff  

had knowledge about the sale deed executed by the Housing  

Board in favour of the defendant.  It was only because of that  

the plaintiff in the plaint categorically stated that he reserves  

his right to file a suit for specific performance.  According to  

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the learned counsel, the causes of action in both the suits filed  

by the plaintiff  are  identical,  and therefore,  the  subsequent  

suit for specific performance is not maintainable being barred  

under  Order  2  Rule  2  CPC.   Learned  counsel  put  heavy  

reliance  on the  decision of  this  Court  in  the  case  of  Virgo  

Industries (Eng.) (P) Ltd. vs. Venturetech Solutions (P) Ltd.,  

(2013) 1 SCC 625.

15. We have heard learned counsel appearing for the parties,  

perused the pleading and findings recorded by the trial court  

as also by the first Appellate Court.

16. Admittedly, the first suit being O.S. No.445 of 1985 was  

filed  by  the  plaintiff-appellant  for  the  grant  of  permanent  

injunction restraining the defendant, his agents and servants  

from interfering with the possession and enjoyment of the suit  

property by the plaintiffs either by attempting to trespass into  

it or in any other manner whatsoever.  Besides other facts, it  

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was  pleaded  that  in  pursuance  of  the  sale  agreement  the  

plaintiff  took possession of the suit plot from the defendant  

and began construction of  Kalyana Mahal.  It was alleged by  

the  plaintiff  that  the  defendant  with  an  ulterior  malafide  

motive  and  intention  of  extracting  more  money  was  

representing to the plaintiffs that he would execute the sale  

deed after getting the sale deed from the Housing Board and  

after completion of the construction of the building.  With that  

ulterior motive, the defendant tried to forcibly take possession  

of  the building constructed by the plaintiffs  and threatened  

the plaintiffs’ worker to remove them from the building.  The  

plaintiffs then gave complaint to the police and in response,  

the police immediately rushed to the suit property and warned  

the  rowdies  not  to  enter  into  the  building.   The  plaintiffs,  

therefore, pleaded that the defendant was again arranging to  

gather  unruly  elements  and to  forcibly  and unlawfully  take  

possession of the suit property from the plaintiffs.  With that  

apprehension, the suit was filed mainly on the cause of action  

which arose when the defendant attempted to forcibly occupy  

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the suit property by driving away plaintiffs’ workers and that  

the defendant was arranging to forcibly and unlawfully take  

possession of the suit property.  The defendant, in his written  

statement, denied each and every allegation and stated that  

building  was  constructed  by  him  and  in  fact  the  plaintiffs  

attempted to forcibly take possession of the building.

17. In the subsequent suit filed by the plaintiff  being O.S.  

No.252  of  1986,  a  decree  for  specific  performance  of  the  

agreement  was  claimed  on  the  ground  inter  alia  that  the  

defendant  in  the  earlier  suit  took  a  defence  that  the  sale  

agreement was allegedly given up or dropped by the plaintiff.  

The  cause  of  action,  as  pleaded  by  the  plaintiff  in  the  

subsequent suit, arose when defendant-respondent disclosed  

the transfer made by Housing Board in his favour and finally  

when  the  defendant  was  exhibiting  an  intention  of  not  

performing his part of the sale agreement and in reply to the  

lawyer’s  notice  the  defendant  made  a  false  allegation  and  

denied to execute the sale deed as per the agreement.

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18. A perusal of the pleadings in the two suits and the cause  

of  action  mentioned  therein  would  show  that  the  cause  of  

action and reliefs  sought  for  are  quite  distinct  and are not  

same.

19. Indisputably, cause of action consists of a bundle of facts  

which will be necessary for the plaintiff to prove in order to get  

a relief from the Court.  However, because the causes of action  

for the two suits are different and distinct and the evidences to  

support the relief in the two suits are also different then the  

provisions of Order 2 Rule 2 CPC will not apply.

20. The  provision  has  been  well  discussed  by  the  Privy  

Council  in  the  case  of  Mohd.  Khalil  Khan   &  Ors.  vs.   

Mahbub Ali Mian & Ors.,  AIR (36) 1949 Privy Council  78,  

held as under:-

“61 The principles laid down in the cases thus far discussed may  be thus summarised:-

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(1)  The  correct  test  in  cases  falling  under  Order  2,  Rule  2,  is  "whether the claim in the new suit is in fact founded upon a cause  of  action  distinct  from that  which  was  the  foundation  for  the  former suit." Moonshee Buzloor Ruheem v. Shumsunnissa Begum  (1867-11) M.I.A. 551.  

(2) The cause of action means every fact which will be necessary  for the plaintiff to prove if traversed in order to support his right to  the judgment. Read v. Brown (1889-22) Q.B.P. 128..

(3) If the evidence to support the two claims is different, then the  causes of action are also different. Brunsden v. Humphrey (1884- 14) Q.B.D. 141 .

(4) The causes of action in the two suits may be considered to be  the  same  if  in  substance  they  are  identical.  Brunsden  v.  Humphrey (1884-14) Q.B.D. 141.

(5)  The cause of action has no relation whatever to the defence  that may be set up by the defendant nor does it depend upon the  character of the relief prayed for by the plaintiff. It refers...to the  media  upon  which  the  plaintiff  asks  the  Court  to  arrive  at  a  conclusion in his favour. Muss. Chand kour v. Partab Singh (15  I.A. 156 : Cal.98 P.C.). This observation was made by Lort Watson  in a case under Section 43 of the Act of 1882 (corresponding to  Order 2, Rule 2), where plaintiff made various claims in the same  suit.”

21. The  Constitution  Bench of  this  Court,  considering  the  

scope and applicability of Order 2 Rule 2 of the CPC, in the  

case of  Gurbux Singh vs. Bhooralal, (supra) AIR 1964 SC  

1810, held as under:

 “6. In order that a plea of a Bar under Order 2 Rule 2(3) of the  Civil Procedure Code should succeed the defendant who raises the  plea must make out; (i) that the second suit was in respect of the  same  cause  of  action  as  that  on  which  the  previous  suit  was  based; (2) that in respect of that cause of action the plaintiff was  entitled to  more than one relief;  (3)  that  being thus entitled to  more than one relief the plaintiff, without leave obtained from the  

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Court omitted to sue for the relief for which the second suit had  been filed. From this analysis it would be seen that the defendant  would have to establish primarily and to start with, the precise  cause of action upon which the previous suit was filed, for unless  there is identity between the cause of action on which the earlier  suit  was filed and that on which the claim in the latter suit is  based there would be no scope for the application of the bar. No  doubt,  a  relief  which  is  sought  in  a  plaint  could  ordinarily  be  traceable  to a particular cause of  action but this might,  by no  means, be the universal rule. As the plea is a technical bar it has  to be established satisfactorily and cannot be presumed merely on  basis of inferential reasoning. It is for this reason that we consider  that a plea of a bar under Order 2 Rule 2 of the Civil Procedure  Code can be established only if the defendant files in evidence the  pleadings in the previous suit and thereby proves to the Court the  identity  of  the  cause  of  action  in  the  two  suits.  It  is  common  ground that the pleadings in CS 28 of 1950 were not filed by the  appellant in the present suit as evidence in support of his plea  under Order 2 Rule 2 of the Civil  Procedure Code. The learned  trial Judge, however, without these pleadings being on the record  inferred  what  the  cause  of  action  should  have  been  from  the  reference to the previous suit contained in the plaint as a matter  of deduction. At the stage of the appeal the learned District Judge  noticed this lacuna in the appellant's case and pointed out, in our  opinion, rightly that without the plaint in the previous suit being  on the record, a plea of a bar under Order 2 Rule 2 of the Civil   Procedure Code was not maintainable.

xxxxx It was his submission that from this passage we should infer that  the parties had, by agreement, consented to make the pleadings in  the  earlier  suit  part  of  the  record  in  the  present  suit.  We  are  unable to agree with this interpretation of these observations. The  statement of the learned Judge. “The two courts have, however,  freely  cited  from  the  record  of  the  earlier  suit”  is  obviously  inaccurate as the learned District Judge specifically pointed out  that the pleadings in the earlier suit were not part of the record  and on that very ground had rejected the plea of the bar under  Order 2 Rule 2 of the Civil Procedure Code. Nor can we find any  basis  for  the  suggestion  that  the  learned  Judge  had  admitted  these documents at the second appeal stage under Order 41 Rule  27  of  the  Civil  Procedure  Code by  consent  of  parties.  There  is  nothing on the record to suggest such an agreement or such an  order,  assuming  that  additional  evidence  could  legitimately  be  admitted in a second appeal under Order 41 Rule 27 of the Civil  Procedure Code. We can therefore proceed only on the basis that  

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the pleadings in the earlier suit were not part of the record in the  present suit.”

22. In  the  case  of  of  Kewal  Singh  vs.  Lajwanti  (supra),  

while considering the applicability of Order 2 Rule 2 CPC, this  

Court observed that:-

“5. So far as the first two contentions are concerned, we are of the  opinion  that  they  do  not  merit  any  serious  consideration.  Regarding the question of the applicability of Order 2 Rule 2 CPC  the argument of the learned Counsel for the appellant is based on  serious misconception of law. Order 2 Rule 2 CPC runs thus:

“2(1) Every suit shall include the whole of the claim  which the plaintiff is entitled to make in respect of  the cause of action but a plaintiff may relinquish any  portion of his claim in order to bring the suit within  the jurisdiction of any court. (2)  Where a plaintiff  omits to  sue in respect  of,  or  intentionally relinquishes, any portion of his claim,  he shall not afterwards sue in respect of the portion  so omitted or relinquished.”

A perusal of Order 2 Rule 2 would clearly reveal that this provision  applies  to  cases where a plaintiff  omits  to  sue a  portion of  the  cause of action on which the suit is based either by relinquishing  the cause of action or by omitting a part of it. The provision has,  therefore, no application to cases where the plaintiff bases his suit  on separate and distinct causes of action and chooses to relinquish  one or the other of them. In such cases, it is always open to the  plaintiff to file a fresh suit on the basis of a distinct cause of action  which he may have relinquished.

6. In the case of Mohammad Khalil Khan v.  Mahbub Ali Mian, AIR  1949 PC 78, the Privy Council observed as follows:

“That  the  right  and  its  infringement,  and  not  the  ground  or  origin  of  the  right  and  its  infringement,  constitute the cause of action, but the cause of action  for the Oudh suit (8 of 1928) so far as the Mahbub  

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brothers are concerned was only a denial of title by  them as that suit was mainly against Abadi Begam for  possession  of  the  Oudh  property;  whilst  in  the  present  suit  the  cause  of  action  was  wrongful  possession  by  the  Mahbub  brothers  of  the  Shahjahanpur property,  and that the two causes of  action were thus different.

7. Applying the aforesaid principles laid down by the Privy Council  we find that none of the conditions mentioned by the Privy Council  are applicable in this case. The plaintiff had first based her suit on  three distinct causes of action but later confined the suit only to  the first cause of action, namely, the one mentioned in Section 14- A(1) of the Act and gave up the cause of action relating to Section  14(1)(e)  and (f).  Subsequently,  by  virtue  of  an  amendment  she  relinquished the first cause of action arising out of Section 14-A(1)  and sought to revive her cause of action based on Section 14(1)(e).  At  the time when the plaintiff  relinquished the cause of  action  arising out of Section 14(1)(e) the defendant was not in the picture  at all.  Therefore,  it  was not open to the defendant to raise any  objection  to  the  amendment  sought  by  the  plaintiff.  For  these  reasons, we are satisfied that the second amendment application  was not barred by the principles of Order 2 Rule 2 CPC and the  contention of the learned counsel for the appellant must fail.”

23. In the case of  Deva Ram vs. Ishwar Chand,  (1995) 6  

SCC 733, this Court, considering its various earlier decisions,  

observed as under:-  

“14. What the rule, therefore, requires is the unity of all claims  based  on  the  same  cause  of  action  in  one  suit.  It  does  not  contemplate  unity  of  distinct  and separate  causes of  action.  If,  therefore,  the subsequent  suit  is  based on a different  cause of  action, the rule will not operate as a bar. (See Arjun Lal Gupta v.  Mriganka Mohan Sur, (1974) 2 SCC 586;  State of M.P. v.  State of   Maharashtra,  (1977)  2  SCC  288;  Kewal  Singh v.  B.  Lajwanti,  (1980) 1 SCC 290).

15. In  Sidramappa v.  Rajashetty, (1970) 1 SCC 186, it was laid  down that if the cause of action on the basis of which the previous  suit was brought, does not form the foundation of the subsequent  

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suit and in the earlier suit the plaintiff could not have claimed the  relief which he sought in the subsequent suit, the latter namely,  the subsequent suit, will not be barred by the rule contained in  Order 2 Rule 2, CPC.”  

24. In the case of Sidramappa vs. Rajashetty & Ors., AIR  

(1970) SC 1059, this Court held:  

“7. The High Court and the trial court proceeded on the erroneous  basis  that  the  former  suit  was  a  suit  for  a  declaration  of  the  plaintiff’s title to the lands mentioned in Schedule I of the plaint.  The requirement of Order II Rule 2, Code of Civil Procedure is that  every suit should include the whole of the claim which the plaintiff  is  entitled  to  make  in  respect  of  a  cause  of  action.  “Cause  of  action”  means  the  “cause  of  action  for  which  the  suit  was  brought”. It cannot be said that the cause of action on which the  present suit was brought is the same as that in the previous suit.  Cause of action is a cause of action which gives occasion for and  forms the foundation of the suit. If that cause of action enables a  person to ask for a larger and wider relief than that to which he  limits his claim, he cannot afterwards seek to recover the balance  by independent proceedings. — see Mohd. Hqfiz v. Mohd. Zakaria  AIR(1922) PC 23.”

8. As seen earlier the cause of action on the basis of which the  previous suit  was brought does not form the foundation of  the  present suit.  The cause of action mentioned in the earlier  suit,  assuming the  same afforded  a  basis  for  a  valid  claim,  did  not  enable the plaintiff to ask for any relief other than those he prayed  for in that suit. In that suit he could not have claimed the relief  which he seeks in this suit. Hence the trial court and the High  Court were not right in holding that the plaintiff’s suit is barred by  Order II, Rule 2, Code of Civil Procedure.”

25. In the case State of M.P. v. State of Maharashtra &  

Ors.,  (1977) 2 SCC 288, at page 295 this Court observed as  

under: -  

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“24. This Court in State of Bihar v. Abdul Majid, AIR 1954) SC 245,  stated that a government servant could ask for arrears of salary.  Counsel for Madhya Pradesh said that the decision of this Court  in Abdul Majid case declared what the existing law has been, and,  therefore, the plaintiff could not contend that it was not open to  him to ask for  arrears  of  salary in the 1949 suit.  It  is  in that  background that Madhya Pradesh contends that the plaintiff  not having asked for relief under Order 2 Rule 2 of the Code of  Civil Procedure would not be entitled to claim salary in the 1956  suit.

25. The contention of Madhya Pradesh cannot be accepted. The  plaintiff will be barred under Order 2 Rule 2 of the Code of Civil  Procedure only when he omits to sue for or relinquishes the claim  in a suit with knowledge that he has a right to sue for that relief. It  will not be correct to say that while the decision of the Judicial  Committee in Lall case1 was holding the field the plaintiff could be  said to know that he was yet entitled to make a claim for arrears  of salary. On the contrary, it will be correct to say that he knew  that he was not entitled to make such a claim. If at the date of the  former  suit  the plaintiff  is  not  aware  of  the right  on which he  insists  in  the  latter  suit  the  plaintiff  cannot  be  said  to  be  disentitled to the relief in the latter suit. The reason is that at the  date of the former suit the plaintiff is not aware of the right on  which he insists in the subsequent suit. A right which a litigant  does  not  know  that  he  possesses  or  a  right  which  is  not  in  existence at the time of the first suit can hardly be regarded as a  “portion of his claim” within the meaning of Order 2 Rule 2 of the  Code of Civil Procedure. See Amant Bibi v.  Imdad Husain, (1885)   15 Ind App 106 at pg.112 (PC). The crux of the matter is presence  or lack of awareness of the right at the time of first suit.

27.  The  appellant  Madhya  Pradesh  is,  therefore,  not  right  in  contending that the plaintiff is barred by provisions contained in  Order  2 Rule  2 of  the Code of  Civil  Procedure from asking for  arrears  of  salary in the 1956 suit.  The plaintiff  could not  have  asked for arrears of salary under the law as it then stood. The  plaintiff did not know of or possess any such right. The plaintiff,  therefore, cannot be said to have omitted to sue for any right.”

26. In the light of the principles discussed and the law laid  

down by the Constitution Bench as also other decisions of this  

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Court, we are of the firm view that if the two suits and the  

relief claimed therein are based on the same cause of action  

then only the subsequent suit will become barred under Order  

2, Rule 2 of  the CPC.  However,  when the precise cause of  

action upon which the previous suit for injunction was filed  

because of imminent threat from the side of the defendant of  

dispossession from the suit property then the subsequent suit  

for specific performance on the strength and on the basis of  

the sale agreement cannot be held to be the same cause of  

action.   In  the  instant  case,  from the  pleading  of  both  the  

parties in the suits, particularly the cause of action as alleged  

by the plaintiff in the first suit for permanent injunction and  

the cause of action alleged in the suit for specific performance,  

it is clear that they are not the same and identical.  

27. Besides the above, on reading of the plaint of the suit for  

injunction filed by the plaintiff, there is nothing to show that  

the plaintiff intentionally relinquished any portion of his claim  

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for the reason that the suit was for only injunction because of  

the threat from the side of the defendant to dispossess him  

from the suit property.  It was only after the defendant in his  

suit for injunction disclosed the transfer of the suit property  

by the Housing Board to the defendant and thereafter denial  

by  the  defendant  in  response  to  the  legal  notice  by  the  

plaintiff, the cause of action arose for filing the suit for specific  

performance.

29. Mr.  R.  Balasubramanian,  learned  senior  counsel  

appearing for the respondents put reliance on the decision of  

this  Court  in  the  case  of   Virgo  Industries  (Eng.)  Private  

Limited (supra).   After going through the decision given in the  

said  case,  we  are  of  the  view that the facts of that case  

were different from the facts of the instant case.   In the case  

of Virgo Industries (supra) two sale agreements were executed  

by the defendant in  favour  of  the  plaintiff  in  respect  of  

the  two  plots.   In the suit filed by the plaintiff for injunction  

it  was pleaded that the defendant is attempting to frustrate  

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the  agreement  on  the  pretext  that  restriction  to  transfer  of  

land may be issued by the Excise Department on account of  

pending revenue demand.  Further, the defendant was trying  

to frustrate the agreement by alienating and transferring the  

suit  property  to  third  parties.   On  these  facts,  the  Court  

observed :-

“5. While the matter was so situated the defendant in both the  suits i.e. the present petitioner, moved the Madras High Court by  filing  two  separate  applications  under  Article  227  of  the  Constitution to strike off the plaints in OSs Nos. 202 and 203 of  2007 on the ground that the provisions contained in Order 2 Rule  2 of the Civil Procedure Code, 1908 (for short “CPC”) is a bar to  the maintainability of both the suits. Before the High Court the  defendant had contended that the cause of action for both sets of  suits  was  the  same,  namely,  the  refusal  or  reluctance  of  the  defendant to execute the sale deeds in terms of the agreements  dated 27-7-2005. Therefore, at the time of filing of the first set of  suits  i.e.  CSs  Nos.  831 and 833  of  2005,  it  was  open  for  the  plaintiff to claim the relief of specific performance. The plaintiff did  not seek the said relief nor was leave granted by the Madras High  Court.  In  such  circumstances,  according  to  the  defendant- petitioner, the suits filed by the plaintiff for specific performance  i.e.  OSs Nos. 202 and 203 were barred under the provisions of  Order 2 Rule 2(3) CPC.

xxxxxxxx 13. A reading of the plaints filed in CSs Nos. 831 and 833 of 2005  show  clear  averments  to  the  effect  that  after  execution  of  the  agreements of sale dated 27-7-2005 the plaintiff received a letter  dated 1-8-2005 from the defendant conveying the information that  the Central Excise Department was contemplating issuance of a  notice restraining alienation of the property. The advance amounts  paid  by  the  plaintiff  to  the  defendant  by  cheques  were  also  returned.  According  to  the  plaintiff  it  was  surprised  by  the  aforesaid stand of the defendant who had earlier represented that  it had clear and marketable title to the property. In Para 5 of the  plaint, it  is stated that the encumbrance certificate dated 22-8- 2005 made available to the plaintiff did not inspire confidence of  

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the plaintiff as the same contained an entry dated 1-10-2004. The  plaintiff,  therefore,  seriously  doubted  the  claim  made  by  the  defendant  regarding  the  proceedings  initiated  by  the  Central  Excise Department. In the aforesaid paragraph of the plaint it was  averred by the plaintiff that the defendant is “finding an excuse to  cancel the sale agreement and sell the property to some other third   party”.  In  the aforesaid  paragraph of  the plaint,  it  was further  stated  that  “in  this  background,  the  plaintiff  submits  that  the   defendant  is  attempting  to  frustrate  the  agreement  entered  into   between the parties”. 14. The averments made by the plaintiff in CSs Nos. 831 and 833  of 2005, particularly the pleadings extracted above, leave no room  for doubt that on the dates when CSs Nos. 831 and 833 of 2005  were  instituted,  namely,  28-8-2005  and  9-9-2005,  the  plaintiff  itself  had  claimed  that  facts  and  events  have  occurred  which  entitled  it  to  contend  that  the  defendant  had  no  intention  to  honour  the  agreements  dated  27-7-2005.  In  the  aforesaid  situation it was open for the plaintiff to incorporate the relief of  specific performance along with the relief of permanent injunction  that  formed  the  subject-matter  of  the  above  two  suits.  The  foundation for the relief of permanent injunction claimed in the  two suits furnished a complete cause of action to the plaintiff in  CSs  Nos.  831  and  833  to  also  sue  for  the  relief  of  specific  performance. Yet, the said relief was omitted and no leave in this  regard was obtained or granted by the Court.”

29. In  the  instant  case,  as  discussed  above,  suit  for  

injunction was filed since there was threat given from the side  

of the defendant to dispossess him from the suit property.  The  

plaintiff  did  not  allege  that  the  defendant  is  threatening  to  

alienate or transfer the property to a third party in order to  

frustrate the agreement.

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30. It is well settled that the ratio of any decision must be  

understood in the background of the facts of that case.  The  

following  words  of  Lord  Denning  in  the  matter  of  applying  

precedence have been locus classicus.

“Each case depends on its own facts and a close similarity  between one case and another is not enough because even a single  significant  detail  may  alter  the  entire  aspect,  in  deciding  such  cases, one should avoid the temptation to decide cases (as said by  Cardozo) by matching the colour of one case against the colour of  another. To decide therefore, on which side of the line a case falls,  the broad resemblance to another case is not at all decisive.”

31. In  the  case  of  Bharat  Petroleum  Corpn.  Ltd.  and  

Another vs. N.R. Vairamani and another, (2004) 8 SCC 579  

at page 584, this Court observed :-

“9.  Courts  should  not  place  reliance  on  decisions  without  discussing  as to  how the factual  situation fits  in with the fact  situation of the decision on which reliance is placed. Observations  of  courts  are  neither  to  be  read  as  Euclid’s  theorems  nor  as  provisions of  a  statute and that  too taken out of their  context.  These  observations must  be  read in  the context  in  which they  appear  to have been stated. Judgments of courts are not to be  construed as statutes. To interpret words, phrases and provisions  of a statute, it may become necessary for judges to embark into  lengthy discussions but the discussion is meant to explain and  not  to  define.  Judges  interpret  statutes,  they  do  not  interpret  judgments. They interpret words of statutes; their words are not to  be  interpreted  as  statutes.  In  London  Graving  Dock  Co.  Ltd. v.  Horton 1951 AC 737   (AC at p. 761) Lord MacDermott observed:  (All ER p. 14 C-D)

“The matter cannot, of course, be settled merely  by  treating  the  ipsissima  verba  of  Willes,  J.,  as  though they were part of an Act of Parliament and  applying  the  rules  of  interpretation  appropriate  

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thereto. This is not to detract from the great weight  to  be  given  to  the language  actually  used  by  that  most distinguished judge,…”

32. Having regard to the facts and evidence of  the instant  

case,  we  are  of  the  view  that  the  issue  decided  in  Virgo  

Industries (supra) is not applicable in this case.

33. Further, taking into consideration all these facts, we are  

of the considered opinion that the conclusion arrived at by the  

High Court that the suit is barred under Order 2 Rule 2 CPC  

cannot be sustained in law.

34. As noticed above, the High Court,  although formulated  

various  points  for  consideration  and  decision,  as  quoted  

hereinabove, but has not considered other points in its right  

perspective.  The High Court, being the final court of facts in a  

first appeal, is required to decide all the points formulated by  

it.  In view of the same, the matter needs to be remanded back  

to  the  High  Court  to  consider  and  decide  other  points  

formulated by it.

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35. For the aforesaid reason, Civil Appeal Nos.4215-4216 of  

2007 are allowed in part and the decision arrived at by the  

High Court against point no.4 holding that the suit was barred  

under Order 2 Rule 2 of the CPC  is set aside.  The matter is  

remanded back to the High Court to decide the appeals by  

recording  its  finding  on  other  points  formulated  by  it.  

Consequently, other connected appeals, filed by the defendant  

against  the  plaintiff,  stand  disposed  of  with  a  direction  to  

maintain  status  quo  with  regard  to  possession  of  the  suit  

property till further orders of the High Court in this regard.

…………………………….J. [ M.Y. Eqbal ]  

.…………………………….J [Shiva Kirti Singh]

New Delhi October 29, 2014

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