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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3056-3057 OF 2017 (Arising out of S.L.P.(C) Nos.28075-28076 of 2014)

Jayantilal Chimanlal Patel  Appellant

                Versus

Vadilal Purushottamdas Patel     Respondent  

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The  appellant-landlord  instituted  HRP  Suit  No.686  of  1992,

seeking  permanent  injunction  against  the  original  tenant,  the

predecessor-in-interest  of  the  respondents  herein,  restraining  them

from constructing any permanent structure on the tenanted premises

and further from subletting the same or transfer it in any manner. The

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learned trial Judge vide judgment and decree dated 12th March, 1999,

partially decreed the suit restraining the respondents from subletting

or transferring the suit premises.

3. Being grieved by the aforesaid judgment, the appellant preferred

Civil  Appeal  No.79 of  1999.   It  is  necessary to state  here that  the

appellant  also  initiated  an  action  for  eviction  forming  the  subject

matter of HRP Suit No.1804 of 1998 before the Small Causes Court,

Ahmedabad, on the ground that the respondent-original tenant had

erected permanent structure on the premises without the consent of

the landlord.  It is apt to note here that the same is one of the grounds

as find mention under Section 13 of  the Bombay Rents, Hotel and

Lodging  House  Rates  Control  Act,  1947,  (for  short,  'the  1947 Act')

which is applicable in the State of Gujarat.   

4. The  learned  trial  Judge  dismissed  the  suit  being  hit  by  the

principle of Order 2 Rule 2 of the Code of Civil Procedure, as well as

on merits.   

5. The said judgment and decree was assailed in Civil Appeal No.61

of 2004.  The appeal arising out of the first suit and the appeal arising

out of the second suit were taken up together and were dismissed by

the common judgment dated 24th March, 2006.

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6. The dissatisfaction of the non-success compelled the appellant to

file two civil revision applications, namely, Civil Revision Application

Nos.172 and 173 of 2006.  The High Court by the common order dated

1st April, 2014, dismissed both the civil revision applications.

7. It is submitted by Ms. Pyoli, learned counsel appearing for the

appellant  that  all  the courts have fallen into error  by applying the

principle under Order 2 Rule 2 of the Code of Civil Procedure when the

plaint in the earlier suit was not proved being marked as an exhibit.

Additionally, it is urged by her that the High Court has not addressed

to the merits of the case, but has been totally guided by the issue that

the suit was barred by Order 2 Rule 2.

8. Mr.  Tanmay  Agarwal,  learned  counsel  appearing  for  the

respondents,  per  contra,  would  contend  that  the  High  Court  has

correctly appreciated the spirit of Order 2 Rule 2 of the Code of Civil

Procedure by taking into consideration the findings recorded in the

earlier judgment and, therefore, this Court should not entertain any

attack on the judgment on the said score.  As far as the delineation on

the merits is concerned, it is urged by Mr. Agarwal that the analysis

made by the High Court on that score, especially in paragraphs 10

and 10.1, are absolutely unimpeachable.

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9. To  appreciate  the  submissions  raised  at  the  Bar,  we  have

carefully perused the common order passed by the High Court in both

the civil  revision applications.  As we find that the High Court has

adverted at length to the facet of Order 2 Rule 2.  On a scrutiny of the

entire judgment, we do not find that there is any mention that the

plaint in the earlier suit was proved.   

10. In this context,  learned counsel for the respondent has drawn

our attention to the Constitution Bench decision in Gurbux Singh vs.

Bhooralal1.  In the said case, this Court while considering the issue of

Order II Rule 2 has opined thus:-

“6. .....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

1   AIR 1964 SC 1810

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the Civil Procedure Code was not maintainable.

7. ......This  apart,  we  consider  that  learned  Counsel's argument must be rejected for a more basic reason.  Just as in the case of a plea of   res judicata   which cannot be established in  the  absence  on  the  record  of  the  judgment  and  decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar.   As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit.  The cause of action would  be  the  facts  which  the  plaintiff  had  then  alleged  to support  the  right  to  the  relief  that  he  claimed.   Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed.”

[Emphasis supplied]

11. From the aforesaid statement of law, it is clearly discernible that

filing of the plaint of earlier suit and proving it as per law is imperative

to sustain the plea of Order 2 Rule 2 CPC.  Unless that is done, the

stand would not be entertainable.  

12. In this regard, we may refer to the Full Bench decision of the

High Court of Patna in Jichhu Ram and Others vs. Pearey Pasi and

Another2, wherein the Full Bench was called upon to appreciate the

ratio laid down in the case of Gurbux Singh (supra). In that context,

the Full Bench has held thus:-

2   AIR 1967 Patna 423

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“7. These  observations  are  fatal  to  the  defendants' contention in this litigation.  Though the bar of Order 2, rule 2, was one of the issues expressly raised before the original court (issue no.5), the defendants did not prove the plaint in the previous rent suit.  The only documents proved on their behalf  are  copies of  the order  sheets  in  the execution case (Exts.  A  and  B).   Mr.  Chatterji,  however,  urged  that  from certain admissions made in the plaint in this litigation this Court  should  reasonably  infer  what  was  the  nature  of  the allegation in  the  previous rent  suit,  and by  this  process  of reasoning decide whether the cause of action in the two suits was  identical.   This  approach  was  condemned  by  their Lordships  of  the  Supreme Court  in  the  aforesaid  judgment with these words:

“As  the  plea  is  a  technical  bar  it  has  to  be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning.”

Their Lordships condemned the action of the learned trial Judge in that court in inferring “what the cause of action should  have  been  from  a  reference  to  the  previous  suit contained in the plaint as a matter of deduction.”  I must, therefore, reject this contention of Mr. Chatterji.”

13. Though  Mr.  Tanmay  Agarwal,  learned  counsel  for  the

respondents has made enormous effort to distinguish the decision in

Gurbux Singh (supra),  in our considered opinion,  the same is not

distinguishable.  It is mandatory that to sustain a plea under Order 2

Rule 2 of the Code of Civil Procedure, the defendant is obliged under

law to prove the plaint  and the proof  has to  be as per  the law of

evidence.  We have no hesitation in saying that the ratio in  Gurbux

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Singh (supra) has been properly appreciated by the Full Bench of the

High Court of Patna in Jichhu Ram (supra).

14. In view of the aforesaid, we are not able to sustain the conclusion

arrived at by the High Court on the basis that the suit instituted by

the plaintiff-appellant was hit by Order 2 Rule 2 CPC.  However, the

controversy does not  end there.   The trial  court  and the  appellate

court have adverted to the merits of  the case, that is,  whether the

tenant had constructed any permanent structure without the consent

of the landlord.  It is manifest that the High Court has not adverted to

the same.

15. In view of the aforesaid, we are inclined to remit the matter to the

High Court for proper appreciation of the material on record and to

deal  with  the  contentions  raised  by  the  appellants  therein  in

accordance  with  law  within  the  parameters  of  the  revisional

jurisdiction.  We may hasten to clarify that if the High Court from the

original records finds that the plaint had been brought on record and

proved as per law, it would be bound to advert to the plea of Order 2

Rule 2 within the parameters of the said principle.  Be it noted, if the

plaint  has  not  been  brought  on  record  and  proved,  prayer  for

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amendment shall not be entertained to bring the plaint on record by

way of additional evidence by taking recourse to Order XLI Rule 27 of

the  Code  of  Civil  Procedure.   In  that  event,  the  High  Court  shall

proceed only to deal with the merits of the case, that is, whether the

plaintiff has made out a case under Section 13(b) of the 1947 Act.

16. We may hasten to add that as far as the revision arising out of

refusal of the order of injunction is concerned, it does not deserve to

be  dwelt  upon  by  the  High  Court  as  we  do  not  see  there  is  any

justification to do so.  The conclusion on that score by the High Court

is justified.  Therefore,  the civil  appeal arising out of  Civil  Revision

Application No.172 of 2016, stands dismissed.  What is required to be

deliberated  by  the  High  Court  is  whether  the  grounds  urged  for

eviction  have  been established  by  the  landlord or  not.  That  is  the

subject matter of Civil Revision Application No.173 of 2006.  The same

alone shall be dealt with.

17. In view of the aforesaid, the appeal relating to eviction is allowed

and the judgment of the High Court in that regard is set aside and the

matter is remitted to the High Court for reconsideration on merits.

There shall be no order as to costs.  As we are remitting the matter, we

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request  the  High  Court  to  dispose  of  the  civil  revision  application

within six months.

...........................................J.                (Dipak Misra)

...........................................J.           (A.M. Khanwilkar)

...........................................J.  (Mohan M. Shantanagoudar)

New Delhi; February 21, 2017.