w w w . L a w y e r S e r v i c e s . i n



Sidhique Rep. by his Power of Attorney holder Syed Muhammed v/s Cleamiss


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

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Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

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Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

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Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

    RFA. No. 556 of 2005

    Decided On, 03 June 2021

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    For the Appellant: G. Sreekumar (Chelur), Advocate. For the Respondent: AVM. Salahuddeen, Advocate.



Judgment Text

1. The judgment and decree passed by I Additional Sub Court, Thrissur (for brevity, 'the court below') on 18.03.2005 in O.S No.128 of 1998 is assailed in the appeal on hand by the defendant in the said suit. For the sake of clarity, the parties to this appeal are referred to hereinafter as the defendant and the plaintiff in accordance with their status in the suit.2. The suit above was filed by the plaintiff seeking realisation of money. He had raised a case that he was a Building Contractor, that he was engaged by the defendant to construct a house and allied structures as per the building plan and agreement executed by them on 07.06.1995 incorporating the terms settled among them after negotiations about the manner of constructions and it's costs, that Rs.5,000/- was given as advance towards the costs, that the construction work was to commence from the already constructed basement, that Rs.75,000/- each was agreed to be paid towards costs of construction works of the foundation as well as the terrace of the Kayyalapura, that the time fixed for completion of the work was till 30.01.1996, that the construction work commenced as per the agreed schedule could not be continued for failure of the defendant to supply the required materials as agreed, that the defendant being abroad at the relevant time, letter was sent to intimate him about the situation, that the work was assigned by the defendant to another party without settling the accounts with the plaintiff, and that as per the agreement executed, the defendant is liable to pay a sum of Rs.1,45,000/- (Rs.75,000x2)- 5000) for the work already completed by the plaintiff and a sum of Rs.1,05,000/- as compensation towards the loss sustained by him. Raising claims as above, the Original Suit was filed for realisation of Rs.2.5 lakhs with interest at the rate of 12% per annum.3. The defendant in his written statement has taken a categoric stand of denial of execution of the agreement and entrustment of the construction work of the house and Kayyalapura. The signature in the agreement allegedly executed by the plaintiff with him was disowned by him. The construction work was admitted as done under the supervision of his father and younger brother. According to him it was orally agreed that the plaintiff would supply the workers for the construction and supervise the work, that wages would be paid to the workers by his father directly, that Rs.5,000/- was paid to the plaintiff for the work, that the materials for the construction work were supplied by the father of the defendant, that suit filed by the plaintiff as O.S No.1041/1995 was already dismissed by the Munsiff's Court, that in the absence of an agreement executed among them, question of breach of any terms will not arise and that the suit for realisation of money is only to be dismissed.4. Based on the above rival contentions, specific issues had been framed by the trial court as follows:“1. Whether the plaintiff has executed the construction work as per agreement dated 07.06.1995?2. Whether the defendant is liable to pay the cost of the work by plaintiff?3. Whether the plaintiff is entitled to realise any compensation as claimed?4. Reliefs and costs?”5. To facilitate the process of adjudication of the issues, both parties adduced oral as well as documentary evidence. The plaintiff's evidence consists of the oral evidence tendered by himself and his witnesses as PWs 1 to 4 and documentary evidence of Ext.A1 to A7(c). The defendant's evidence is confined to the solitary oral evidence of his father and Power of Attorney holder as DW1 and documentary evidence of Ext.B1. Ext.X1 was also marked as court Exhibit.6. The trial court found the issues except issue No.3 in favour of the plaintiff and accordingly decreed the suit as follows:“21. Issue No.4:- In the result the suit is partly decreed with cost and partly dismissed without cost. Plaintiff is entitled to realise Rs.1,45,000/- with 12% interest from the date of the suit till the realisation of the amount and cost from the defendant and his assets. The amount is made a charge over the plaint schedule property. Plaintiff is not entitled for compensation and the prayer for compensation is dismissed without cost.22. The plaint was filed in forma pauperis and plaintiff was permitted to sue as indigent person without paying court fee of Rs.17,050/-. The amount of court fee shall be recovered from the decree amount and same shall be the first charge over decreetal amount as per Order XXXIII Rule 10 of C.P.C. So the copy of the judgment shall be forwarded to the District Collector, Thrissur to take steps for realisation of the court fee.”7. Sri.Sreekumar G Chelur and Sri. Salahuddeen, the respective counsel argued vehemently on behalf of the defendant and the plaintiff.8. According to Sri.Sreekumar G Chelur, the trial court has compared the disputed signature of the defendant in Ext.A1 with the admitted ones in Ext.A7(b) and (c) and got convinced that Ext.A1 was signed by the defendant himself. According to him when the execution of Ext.A1 and even affixture of signature stand denied by the defendant categorically, the trial court ought not to have adopted a procedure of comparison of signatures (admitted ones with the disputed ones) of the defendant and reached a conclusion on it's sole basis that Ext.A1 was signed and executed by the defendant himself.9. According to him, when execution of Ext.A1 itself stands denied, court below ought not to have compared the disputed signature of the defendant with the admitted ones of him and drawn an inference that the signature is his own and that the defendant is defeated in his contention, since it is the burden of the plaintiff to establish that.10. The learned counsel urged that execution of Ext.A1 could only be established by examining the scribe or witnesses who had put their signatures thereto in attestation. According to him, the defendant did not venture to examine the witnesses who had allegedly attested Ext.A1. According to him, the agreement was claimed by the plaintiff as one in written form, but the one produced and marked in evidence as Ext.A1 is a typewritten one. According to him, the plaintiff to have support of his stand on execution of Ext.A1, had examined one Mr. Sirajudheen as PW2, who admittedly has not signed Ext.A1 but, was alleged as personally present at the time when terms of the construction work were settled after negotiations and subscribed to by the parties. According to him, though PW2 has spoken as available at the time when signatures were affixed by the parties in Ext.A1, for the reason of not being an attestor to it, the trial court has discredited his version. According to the learned counsel, in the above contextual scenario, cogent evidence was lacking for the trial court to take a view in the affirmative that Ext.A1 was executed by the plaintiff and defendant on 07.06.1995 and the terms it contain have been subscribed by them.11. According to the learned counsel in a context where the signature in Ext.A1 stands disowned by the defendant, the plaintiff ought to have discharged his burden by applying for getting an opinion of the expert on handwriting under Section 45 of the Indian Evidence Act, 1872. According to him, the plaintiff failed to take the risk, but the trial court by taking the role of an expert under Section 74 of the Indian Evidence Act and by a comparison on it's own identified the signature disowned by the defendant as his own.12. According to him, when the defendant has taken a specific stand that he was not available at his hometown to sign Ext.A1 on the alleged date of execution, it is for the plaintiff who asserts that the defendant himself had signed it on the day, to establish that the defendant was available personally at the place then to sign it. The availability of the defendant at the place and signing of Ext.A1 could easily be established by the plaintiff by examining any of the attestors of Ext.A1. According to the learned counsel, the plaintiff failed to do so but the trial court proceeds to observe in the impugned judgment that the defendant being the possessor of his passport and the same having not been produced, adverse inference under Section 114 of the Indian Evidence Act, 1872 could be drawn against him that, if produced, it would state against his stand that he was abroad at the relevant time when Ext.A1 was executed.13. Lastly, it was urged by the learned counsel that an earlier suit filed by the plaintiff as O.S No.1041/1995 for the same cause of action as in the suit on hand was dismissed as not pressed by Munsiff's Court, Thrissur, in view of the statutory bar under Order II Rule 2 of the Code of Civil Procedure (for short, the CPC), O.S No.128/1998 ought to have been dismissed by the trial court as not maintainable. Sri.Sreekumar G Chelur has also relied on Mathew V. Elikkutty [2019 (2) KLT SN.11 (C.No.14)], Alchemist Ltd and Another Vs. State Bank of Sikkim and Others [(2007) 11 SCC 335], Suresh Babu (Dr.) v. Dr. T.K. Chandrasekharan and Others [2009(4) KHC 638], Muhammed Master V. Abu Haji [1981 KLT 578], Yakubhai Ahmedji Mistri V. Imamuddin Husenuddin Kadri (AIR 1991 Gujarat 180) and Modi Korea Telecommunications Ltd v. Indus Ind. Bank Ltd and Others [AIR 2001 Del.254] to fortify his contentions.14. Sri. Salahuddeen in his venture to justify the impugned judgment and the unsustainability of the argument on Order II Rule 2, for raising it for the first time in the appeal on hand, relied on Antony K.O and Another V. M.K. Krishnankutty Menoki and Others [2017 (1) KHC 479], Sardar Satpal Singh V. Saroj Shukla and Others [2015 KHC 3993] Parul Das and Others v. Amiya Prava Das and Another [2019 KHC 2078] and Kartar Singh and Others v. Shiv Rattandev Singh and Others [1996 KHC 2190].15. Execution of Ext.A1 stands stoutly denied by the defendant. The signature found in Ext.A1 also stands disowned. In that context, it is the burden of the plaintiff to establish that Ext.A1 was executed by the defendant himself. It is pertinent to note that the written statement filed by the defendant does not contain a pleading that he was abroad at the time of execution of Ext.A1, but, the Power of Attorney Holder of the defendant while being examined as DW1 has taken such a stand. The defendant did not turn up to testify his contentions in the written statement. His Power of Attorney Holder has spoken for him but has gone to the extend of taking a stand which the defendant himself does not have.16. The evidence adduced by DW1 is irrelevant and inadmissible for the twin reasons stated above. Therefore, the trial court ought not to have relied on the said version of DW1. But, it has gone to the extent of drawing adverse inference against the defendant with regard to his availability at the place on 07.06.1995 and execution of Ext.A1. The trial court undoubtedly is erred in doing so.17. In a context, where execution of an agreement is denied and signature therein is disowned, burden undoubtedly is on the plaintiff to establish on the contrary. A glance at the oral evidence tendered by plaintiff as PW1 would convince that he had spoken strictly without deviating from his averments in the plaint.18. True that plaintiff opted to examine Sri.Sirajudeen as PW2 who according to him was not an attestor of Ext.A1 but allegedly present at the spot at the relevant time, as a spectator. The trial court found him incredible and discarded his evidence. To the conscience of this Court also his failure to attest Ext.A1, despite his availability at the spot of execution of Ext.A1 creates suspicion especially when the factum remains that Ext.A1 has only a single attestor. .19. The trial court had invoked it's jurisdiction under Section 73 of the Indian Evidence Act and noticed similar features for the disowned signature with that of the admitted ones available on record and on the basis of the oral evidence of PW1 and the comparison made on it's own, came to a conclusion that Ext.A1 was executed by the defendant and therefore its terms are binding on him.20. In the backdrop, this court proceeds to find out the extent of jurisdiction, a court has under Section 73 of the Evidence Act and whether it could be invoked in the context of the case to conclude that the disowned signature in view of it's similar features with the admitted ones is put by the defendant himself and to grant the reliefs sought for by the plaintiff.Section 73 is extracted hereunder for reference:“73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of that Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.This section applies also, with any necessary modifications, to finger impressions”21. Therefore, there cannot be any doubt on the power of the court to compare the signature of one person stands disputed by another. Evidence Act by the provision extracted supra permits the court to apply it's own judgment and perception, by a mutual comparison and application of mind to arrive at an opinion on the affixture of the disowned signature with those admittedly affixed by the said party and made available to it.22. Section 45 of the Evidence Act is called for in the context to distinguish.“45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science or art; or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or fingerimpressions are relevant facts. Such persons are called experts.”23. The purpose and scope of the aforequoted provision is that when a court is called upon to decide a matter involving specialised knowledge, the party claiming a relief on it's basis need to call for opinion of an expert or experts in support of his case.24. The opinion of a witness possessing peculiar skill is admissible, whenever the subject matter of enquiry is such that inexperienced persons are unlikely to prove and capable of forming a correct judgment upon it without such assistance.25. The Apex Court has held in Murari Lal Vs. State of Madhya Pradesh (1980 (1) SCC 704) =( AIR 1980 SC 531):“ 12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is not expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.”26. In the case on hand there has been specific denial of execution of Ext.A1. The signature found in Ext.A1 was also disowned. The suit was for realisation of costs of construction work performed by the plaintiff on the strength of Ext.A1.27. When the execution of Ext.A1 stands denied by the defendant, it is incumbent upon the plaintiff to adduce cogent and reliable evidence to establish execution of the same. As already observed, the plaintiff proceeds to rely on his own interested version as PW1 to establish execution. In that context, the trial court proceeded to have a comparison of the disowned signature in Ext.A1 with the admitted ones in Ext.A7(b) and A7 (c). The trial court found some common features in the admitted and disputed signatures and formed an opinion on its basis that the disowned signature in Ext.A1 was also put by the defendant. Accordingly, the trial court found that construction work of the foundation of the house and kayyalapura were completed by the plaintiff in accordance with the terms stipulated in Ext.A1 and therefore, he is entitled to get a decree in his favour.28. There cannot be any dispute on the jurisdiction of the court to compare the signature of the party who denied to have affixed it with his admitted signature. But, the court is not justified to grant a decree in favour of the plaintiff on the basis of an opinion on authorship formed by it after comparison of the disowned signature of the defendant with those owned by him, especially when the plaintiff stands failed in discharging his burden to establish the authorship of signature and execution of Ext.A1.29. It is found from the impugned judgment that the trial court has relied on the report prepared by Sri.K.S.Venugopal, the Advocate Commissioner in O.S.No.1041/95 filed by the plaintiff before the Munsiff's Court, Thrissur seeking permanent Prohibitory injunction, which was marked in evidence as Ext.A4 by examining the Advocate Commissioner as PW4.30. The Advocate Commissioner was directed to report on the completion of construction work of basement of the house and the 'Kayyalapura' in the plaint schedule property and the Commissioner has reported that in the affirmative. Absolutely no dispute is forthcoming from the defendant with regard to the work completed.31. The Advocate commissioner when examined as PW4 has stated to have conducted inspection of the plaint schedule property on 04.10.1995 as per the direction in the order of the Munsiff's Court, Thrissur in I.A.No.4108/95 in O.S.No.1041/1995. But, he failed to state the age of the construction work as on date of his inspection of the site.32. It is pertinent to note at this juncture that Ext.A4, the Commission report and the oral evidence tendered by the Advocate commissioner as PW4 are of no help to the plaintiff to establish that the construction works reported by him were carried out by the plaintiff. Since execution of Ext.A1 stands disproved, there is absolutely no evidence on record to establish that the construction work allegedly carried out by the plaintiff was entrusted to him by the terms and conditions in Ext.A1 on the manner, cost and the time limit for completion of the work. Though PW2 and PW3 were also examined by the plaintiff, they did not lend any support to the stand of PW1 on the construction work already carried out by him.33. An argument was also advanced by Sri.Sreekumar, the learned counsel for the appellant that Ext.A4 and the oral evidence of PW4, being evidence stands adduced by the plaintiff to establish his claim in O.S.No.1041/1995 seeking permanent prohibitory injunction and in the event of the suit stands dismissed as not pressed, are totally irrelevant and inadmissible in evidence in the case on hand. According to him the cause of action in O.S.No.1041/1995 and the present suit being one and the same the plaintiff in the suit on hand ought to have raised his claim for the relief now sought in the present suit, in O.S.No.1041/1995 itself and having been failed to do so, the suit on hand is hit by the bar under Order II Rule 2 CPC. It is contended by the learned counsel that Ext.A4 being the report of the Commission taken in O.S.No.1041/1995 and not pressed by the plaintiff, he ought not to have produced it in the present suit and sought for reliance.34. Order II Rule 2 CPC is apposite reference hereunder:“2. Suit to include the whole claim(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) Relinquishment of part of claim- 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.(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”35. The indication of Rule 2 of Order II was that if a plaintiff is entitled to several reliefs against the defendant based on a single cause of action, he cannot split up his claims so as to omit one part of the claim and to sue for the other. Order II Rule 2 is based on the Cardinal Principle that the defendant should not be vexed twice for the same cause. The provision makes it mandatory that the entire claims of the plaintiff based on a solitary cause of action must be raised in a single suit so as to avoid hardships that would probably occur on multiple proceedings being raised against a person based on a single cause of action.36. In Yakubhai supra relied on by the learned counsel, in an earlier eviction suit, the tenant had invoked the powers of rent court under Section 11 of the Bombay Act of 1947 for determination of standard rent by raising a claim for that in the written statement filed but later on did not press the said issue of standard rent. Subsequently when the tenant taken out proceedings for determination of standard rent by filing an application, the High Court of Gujarat held that it by itself will not directly create a bar to the subsequent proceedings initiated through the application filed for the purpose, but will be barred by principle of constructive res judicata and/or principles analogous to res judicata and also on account of principles of estoppel operating against the tenant. The court found that since a decision was not made on merits on the question of standard rent, which was the subject matter of controversy between the parties, Section 11 of CPC will not come into operation. The court's reasoning is well expressed in para 3.1 of the judgment and therefore, is extracted hereunder to have an idea on how the bar under Rule 2 Order II CPC operates.“3.1. Section 11 of the Rent Act confers a statutory right on the tenant to have the standard rent determined by the Rent Court in either of the two ways specified in the said section. One manner of moving the Court is to file a substantive application directly requiring the Court to determine the question of standard rent. The other mode of obtaining such determination is to take up a contention in the written statement filed by the tenant in a suit filed by the landlord. The conferment of this right to move for determination of standard rent is to be seen and construed in the light of the definition of “Standard Rent” as laid down in S.5(10) of the said Act. It is obvious that the two modes of obtaining adjudication on this question are in the alternative and mutually exclusive. Where one mode of obtaining adjudication has been exercised, the other mode is ruled out. Once the choice is made and exercised, it may be pursued to its logical conclusion and a decision obtained or as in the present case it may be abandoned midway. However, once the choice is made as regards one specific mode, the alternative mode is ipso facto ruled out and the door is then shut for ever. To conceive otherwise would amount to rendering nugatory the principles analogous to the principles of res judicata. In the instant case by not pressing the issue for determination of standard rent, the tenant has abandoned his right of obtaining an adjudication, after having exercised the said right. This, in effect, amounts to an admission on the part of the tenant as regards the claim of the landlord made in the suit, read together with the evidence on record, at least as regards the question of rent.”37. The court further held:“xxxxx In the consideration of the latter question it has been held that where a petition has been withdrawn unconditionally, a second petition on the same cause of action is not competent unless liberty is reserved at the time of withdrawal of the earlier petition. As found by me hereinabove when the tenant did not press the issue as regards determination of standard rent, that contention was withdrawn by him unconditionally. Thus, he would be estopped from raising the same issue again in another proceeding Viz. by way of a substantive application under S.11 of the Rent Act.”38. In Modi Korea Telecommunications Ltd. supra, a suit for injunction against invocation of bank guarantee was dismissed as withdrawn and the second suit was filed again seeking injunction against invocation of bank guarantee. The reliefs sought in the second suit being verbatim reproduction of reliefs already made in the earlier suit, was held by the court as barred under R1(4) of O.23.39. In Mathew supra. O.S.No.166/1994 was filed before Sub Court, Palakkad seeking specific performance of Ext.A3 contract dated 18.09.1993 executed between the plaintiff and the 1st defendant for herself and on behalf of her children who are defendants 2 to 4 (minors at the relevant time). Suit was dismissed by the trial court. Appeal was filed and the specific contention taken by the respondents/defendants was that O.S.No.166/1994 is hit by Order II Rule 2 of the Code since in an earlier suit filed by the plaintiff as O.S.No.37/1994, despite the availability of the cause of action for O.S.No.166/1994, the plaintiff intentionally omitted to claim the relief of specific performance of Ext.A3 contract. On appreciation of the evidence the learned Single Bench found on the basis of the pleadings of plaintiff in the plaint in O.S.No.37/1994 that the 1st respondent by her words and deeds expressly clarified that she was unwilling to perform her obligation under the contract. That was also narrated in the plaint as one of the reasons for accrual of the cause of action for the suit. But, the plaintiff sought only a relief of prohibitory injunction simplicitor and omitted to seek specific performance. O.S.No.37/1994 was dismissed on 24.08.1994. Since the plaintiff was aware of the reluctance of the 1st defendant to perform her obligations under Ext.A3 at the time of filing of O.S.No.37/1994, the cause of action for seeking specific performance of Ext.A3 contract was available to him at the time of filing of the said suit itself and he ought to have sought for that relief in the suit itself. Instead, he omitted to do so without even seeking for leave of the court to sue later under Order XXIII Rule 1 of the Code. Accordingly, the learned Single Judge found that the plaintiff had abandoned the relief of specific performance despite accrual of a cause of action for applying for that in her favour. O.S.No.164 of 1994 filed later was held in the backdrop as barred under Order II Rule 2 CPC.40. In Muhammed Master supra, a Division Bench of this Court had dealt with the impact of 'not pressing' in the following line,“4. As a result of 'not pressing' certain allegations and grounds raised in a pleading, a litigant submits that the issues arising therefrom may be decided against him and in favour of his opponent; and those issues are decided accordingly. It is virtually a decision by consent, in that the party asserting or disputing, concedes that his assertion or dispute, as the case may be merits no consideration as he cannot substantiate the same. The allegations are, however, there, and they are decided. Therefore, what has been said of consent decisions, namely- “...... the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end” (Lord Horschell in In re South American and Mexican Company, Ex parte Bank of England (1895- 1 Ch.37), can, with much more force, be said of a decision that the allegations in the pleading have not been substantiated because they are not 'pressed' by the maker of those allegations. It cannot be said that the allegations which have been found and held to be not established, are withdrawn in such circumstances.”41. In Sarguja Transport Service V. STAT [1987 KHC 278], the Apex Court had ventured to distinguish the terms, abandonment and withdrawal in the following manner:"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-r. (3) of R.1 of O.23 of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying R.1 of O.23 of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suit again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-r.(3) of R.1 of O.23. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in S.11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-r (4) of R.1 of O.23 of the Code when the first suit is withdrawn without the permission referred to in sub-r.(3) in order to prevent the abuse of the process of the court.”(Emphasis Supplied)42. In the light of the decisions cited above, this Court ventured to see whether at the relevant time when O.S.No.1041/95 was filed before the Munsiff's Court, Thrissur the cause of action for raising a claim for realisation of money, being the costs of construction and damages was available to the plaintiff.43. The cause of action for O.S.No.1041 of 1995 is extracted from paragraph 9 of the certified copy of the plaint marked in the suit on hand as Ext.A5.“MALAYALAM”44. Clauses (4) and (5) of Ext.A1 relied on by the plaintiff being relevant in the context are extracted hereunder for clarity.“4. “MALAYALAM”45. The time limit for execution of the work was also agreed to as till 30.01.1996. Therefore, as made clear by the terms in Ext.A1, the costs of construction shall be paid by the defendant to the plaintiff on completion of each stage of the work.46. Therefore, on 04.10.1995, the date of filing of O.S.No.1041/1995 itself, the plaintiff was acquainted of the breach of terms of the alleged agreement by the defendant and therefore was entitled to raise a claim for costs of construction completed till date and also for damages. But, he failed to raise a claim for those reliefs and confined his claim in the suit only for a decree for prohibitory injunction simpliciter.47. It is evidenced from Ext.A6, the certified copy of the judgment in O.S.No.1041/1995 that, the suit was dismissed as not pressed without obtaining permission from the court to raise a claim on the basis of the cause of action, at a later point of time. As held by the Division Bench in Muhammed Master supra, by not pressing the suit, averments and grounds raised by way of pleadings and issues originating therefrom were let by the litigant to decide against him and in favour of his opposite party in the suit and thus the issues stand decided accordingly. In the case on hand, without obtaining any leave from the court that the litigant has caused O.S.No.1041/1995 to be dismissed as not pressed and therefore is restrained from raising the reliefs omitted to be raised therein, again.48. Sri.Salahuddeen, the learned counsel for the respondent on the strength of the dictum in Sardar Satpal Singh supra contended that for invocation of Order II Rule 2 C.P.C, there must be a specific plea about that in the written statement filed by the defendant in the suit and framing of an issue on it's basis and adjudication of it by the trial court, it being a mixed question of facts and law. The learned counsel invited attention of this Court to the written statement filed by the defendant in the suit on hand to contend that a plea in that regard is not raised. According to him, the bar under Order II Rule 2 CPC being a mixed question of facts and law, for raising a contention regarding that, the defendant must have pleaded it in the suit and the trial court must have framed an issue on it and adjudicated it based on evidence adduced by the parties.49. In Sardar Satpal Singh supra, a civil suit for specific performance of contract of sale was filed against the respondent. Written statement was filed by the defendant on summons being served on him, denying the averments in the suit. During the course of trial, after framing of issues, an application was preferred by the defendants under Section 11 read with Order II Rule 2 C.P.C contending that an earlier suit was filed in respect of the same agreement for sale and it was decided against the plaintiff. First Appellate Court allowed the appeal partly and in the appeal preferred against, the appellant raised a contention that the subsequent suit is barred under Order II Rule 2 CPC.50. In the plaint as well as the written statement filed in the suit there was no pleading to the effect that in respect of the same suit properties, earlier civil suit was filed by the plaintiff seeking for declaration and injunction but without seeking for a decree for specific performance of contract and that was decided. Only by way of an application filed under Section 11 read with Order II Rule 2 C.P.C, it was contended by the defendant that a civil suit was filed earlier and was decided.51. The court held in the case:"14. In order to attract the bar under O.2 Rule 2, it has to be specifically pleaded by the defendant in the suit and the trial Court should have specifically framed a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different."52. The Chattisgarh High Court held as above relying on Coffee Board v. Ramesh Exports Private Ltd., [2014 (6) SCC 424], wherein the dictums in Alka Gupta v. Narender Kumar Gupta [2010(10) SCC 141] and Gurbux Singh v. Bhooralal (AIR 1964 SC 1810) have been reiterated.53. In Coffee Board supra, the Apex Court held:"11. The bar of O.2 R.2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit; and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. Furthermore, the bar under O.2 R.2 must be specifically pleaded by the defendant in the suit and the trial court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different.''54. In Alka Gupta supra, the Apex Court has stated the object of Order II Rule 2 CPC in the following words:“The object of Order 2 Rule 2 CPC is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 CPC is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct

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cause of action.”The court held:“Unless the defendant pleads the bar under Order 2 Rule 2 CPC and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.”55. The Apex Court in Gurbux Singh supra held:“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: (1) 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 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 later suit is based there would be no scope for the application of the bar.”56. In the case on hand in the written statement filed, what has been stated by the defendant was that the earlier suit filed by the plaintiff as O.S.No.1041 of 1995 before the Munsiff's Court, Thrissur, was dismissed. But a specific plea that the cause of action in the earlier suit and in the present suit are one and the same and for omission to raise a claim for realisation of money and damages in the earlier suit, the claim raised for that in the suit on hand is barred under Order II Rule 2 C.P.C, was not found taken in the written statement.57. It is pertinent to note that the plaint and the judgment in O.S.No.1041 of 1995 were produced by the plaintiff and got marked in evidence as Exts.A5 and A6. A reference is there in the written statement filed that O.S.No.1041 of 1995 filed by the plaintiff was dismissed. But, a contention that due to dismissal of O.S.No.1041 of 1995 as not pressed, in view of the commonality of the cause of action the present suit is hit by Order II Rule 2 CPC was not taken.58. In Sardar Satpal Singh supra the defendant though failed to raise the contention in the written statement, had raised it through an application and attempted for a dismissal of the suit under Order II Rule 2 C.P.C and the trial court after adjudicating an issue raised by it on it's basis found the contention as a meritorious one and accordingly dismissed the suit. In the appeal filed against, the appellate court found that the procedure adopted is wrong and thus remanded the case to the trial court after setting aside the impugned judgment with permission to raise the plea as an additional one and direction issued to the court to adjudicate the case afresh.59. The factual scenario in the case on hand is not akin to that in Sardar Satpal Singh supra. Since the defendant in the case on hand failed to raise the plea of bar of suit under Order II Rule 2 C.P.C before the trial court, it is a matter of leave being obtained from the Appellate Court under Order XLI Rule 2 CPC to raise it at this juncture.60. Materials available in evidence on record is satisfactory to hold that the plaintiff failed to discharge the burden to establish execution of Ext.A1, which is the foundation for sustenance of his claim for realisation of money, being the costs of construction and damages. Even without the plea on bar of suit under Order II Rule 2 CPC adjudicated and established, this Court is able to take a view based on discussions made above that the plaintiff's claim is defeated for failure to discharge his burden to establish execution of Ext.A1. The court below is not justified in passing the judgment and decree under challenge herein in favour of the plaintiff.Appeal succeeds and is allowed. The impugned judgment and decree are set aside. No order as to costs.
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