# Rameshwar Singh and another v. District Judge, Faizabad and others

- **Citation:** (2011) 1 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-22
- **Case number:** Writ Petition No. 7256 of 2010
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-singh-and-another-v-district-judge-faizabad-and-others-41904
- **Pages:** 6

## Text

86 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

45. However, grievance of those
petitioners, whose parent departments are
either sick or are not in existence, is
genuine. This Court feels that it is State
Government, which directed SUDA to
engage the petitioners on deputation,
fixed the maximum period of deputation
as five years and directed not to absorb
any
deputationist
permanently.
The
decision taken by SUDA is mostly on the
direction of the State Government.
Hence it is a fit case where the State
Government
should
direct
its
departments
to
take
the
affected
petitioners either on deputation or on
contract. In this regard, the State
Government will be well advised to refer
to Govt. Orders No. 20/1/91-Ka-2/2008
dated
22.9.2008,
20/1/91/Ka-2/2008
dated 20.10.2008 and 20/1/91/Ka-2-2008
dated 9.6.2009. All these Govt. Orders
have been issued by the Principal
Secretary, regarding the appointments of
surplus staff. In these Govt. Orders
directions have been issued to absorb/
appoint the surplus staff in different
departments.

46. Accordingly, all the petitions
are dismissed and the interim orders are
discharged.

47. However, it is provided that the
State Government shall look into the
matter of those petitioners, whose parent
departments are either sick or are not in
existence. The State Government shall
take a decision in this regard, within a
period of two months from today.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.01.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 7256 of 2010

Rameshwar Singh and another

 ...Petitioner
Versus
District Judge, Faizabad and others

 ...Opposite parties

Code of Civil Procedure-Order 2 Rule 2-
bar of subsequent Suit-rejected by court
below-earlier suit for declaration of
Sarvakar got finality up to second Appeal
stage-objection that at the time of filing
earlier Suit-Respondent was well aware
about sole Transaction but not taken any
plea-can not be allowed by subsequent
suit-held-misconceived-unless
declared
as
sarvakar
had
no
locustandi
to
question the sale deed-orders by court
below
perfectly
justified-warrant
no
interference.

Held: Para 15

After being successful in the suit the
respondents filed the subsequent suit
before the Civil Court for declaration of
sale deed as void. Though the earlier
dispute is still pending before this court
in the second appeal, but the decree
passed by the trial court as well as the
appellate court has not been interfered
with till date, therefore, under the
strength of the said decree having been
attained the locus to challenge the sale
deed, the respondents filed the suit,
which cannot be rejected merely on the
basis of a technical plea raised by the
petitioners. The cause of action of the
present suit is the illegal transaction of
sale, which is altogether different to the
earlier cause of action of suit No.324 of
1987, therefore, in the light of the
observations of the Constitution Bench
of the Hon'ble Supreme Court in the case
1 All] Rameshwar Singh and another V. District Judge, Faizabad and others
87
of Gurbux Singh v. Bhooralal (Supra), I
am of the considered opinion that the
suit is not barred by Order 2 Rule 2 CPC.
Therefore, the writ petition is dismissed.
Case law discussed:
2003 (21) LCD 977; (2008) 11 Supreme Court
cases 753; JT 1996 (1) SC 156; AIR 1964 SC
1810; (2000) 6 Supreme Court Cases 735.

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr.D.C.Mukherjee, learned
counsel for the petitioners as well as
Mr.R.S.Pandey, learned counsel for the
opposite parties.

2. The petitioners have challenged the
order dated 20th of July, 2010, passed by
the Additional Civil Judge (Senior Division)
Faizabad in Original Suit No.241 of 2004 as
also the order dated 10th of November,
2010, passed by the District Judge,
Faizabad in Civil Revision No.215 of 2010.

3. Before the trial court the issue for
decision was; Whether the suit is barred by
Order 2 Rule 2 C.P.C.?

4. Before making any discussion on
the facts and circumstances of the case in
order to appreciate the correct interpretation
of Order 2 Rule 2 of the Civil Procedure
Code, the same is extracted here-in-below:-

"Order 2 Rule 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 if
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 claimwhere a plaintiff omits to sue in respect of
or intentionally relinquishes, any portion of
his claim, he shall not after wards sue in
respect of the portion so omitted or
relinquishment.

(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 relief, but he
omits except with the leave of the court, to
sue for all such relief he shall not afterward
sue for any relief so omitted.

5. Mr.Mukherjee, learned counsel for
the petitioners submits that basically the
dispute between the parties is for the
propriety of Sarvarahkar of Thakur Vijay
Raghav Bhagwan Virajman Ranopali,
Faizabad, which is pending consideration at
the stage of second appeal being second
appeal No.461 of 2006 before this court
arising out of orders passed in the Appeal as
well as in suit No.324 of 1987, filed by one
Mr.Rajveer Singh, in which the petitioners
as well as present respondents 3 and 4 are
the respondents. In 2004, the respondent
No.3 Mahant Ramesh Das and Rajdeo Das
@
Rajveer
claiming
themselves
as
Sarvarahkar of Thakur Vijay Raghav
Bhagwan Virajman Ranopali filed a suit
being suit No.141 of 2004 for permanent
injunction, against the petitioners, which is
pending consideration. Subsequently they
also filed a suit being suit No.241 of 2004 in
the court of Civil Judge (Senior Division),
Faizabad seeking a decree for declaration of
a sale deed executed in favour of the
petitioners as void. The petitioners raised
objection against the maintainability of the
suit on the ground that suit is barred by
Order 2 Rule 2 C.P.C. They submitted that
when in 1987 they filed the suit bearing Suit
No.324 of 1987 raising the dispute of
Sarvarahkar, in paragraph 6 of the plaint
they alleged that they had already instituted
a suit for declaration of sale deed as illegal,
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
which indicates that they were aware with
the sale deed executed in favour of the
petitioners at that very time and being aware
with the said facts, they could have sought
the relief for cancellation of sale deed, but
they relinquished their claim and now in the
light of the provisions of Order 2 Rule 2
C.P.C., it is not open for them to sue the
petitioners for such a relief, which they have
already omitted.

6. In support of his submissions
learned
counsel
for
the
petitioners
Mr.Mukherjee cited several cases, decided
by this court as well as by the Hon'ble
Supreme Court, some of them are cited
hereunder:-

(1) Ganpat Lal Gupta and others
versus 5th Additional District Judge,
Deoria and others, reported in 2003 (21)
LCD 977, relevant paragraphs 30, 31 and
32 of the same are quoted here-in-below:-

"30.The learned revisional court has
set aside the order of the trial court allowing
the amendment on the basis of the
provisions of Order 2, Rule 2 CPC which
provides that if a party could seek a
particular relief at the time of the institution
of the plaint and does not ask for the said
relief,
it
would
amount
to
waiver,
relinquishment of such right and subsequent
suit shall be barred for grant of such relief.
In Mohammad Khalil Khan & ors. v.
Mahbub Ali Mian & ors., AIR 1949 PC 78
the scope of application of the provisions of
Order 2, Rule 2 CPC was considered by the
Privy Council. The Court held that if the
occasion
for
a
particular
lis
arises
subsequent to the institution of the suit, it
cannot be barred by the provisions of Order
2, Rule 2 CPC and in order to determine as
to whether the said provisions are attracted
or not, the court has to consider as what was
the cause of action in the earlier suit on
which the plaintiffs founded their claim and
whether they included all the claims which
they were entitled to make in respect of that
cause of action in that suit, or if they failed
to include all the claims then by force of
Order 2, Rule 2 CPC they are precluded to
include the same by bringing the subsequent
suit. The court placed reliance upon its
earlier judgment in Moonshee Buzloor
Ruheem v. Shumsunnissa Begum (1887) 11
MIA 551, wherein it has been held as
under:-

"The correct test in all cases of this
kind is whether the claim in the new suit
which in fact founded on a cause of action
distinct from that which was the foundation
of the foremost suit."

31. In State of Rajasthan and another
v. Nav Bharat Construction Co., (2002) 1
SCC 659 the Hon'ble Supreme Court held
that in respect of dispute regarding
subsequent claims arisen after the first
reference cannot be held to be barred by the
provisions of Order 2 Rule 2 CPC for the
reason that subsequent claim may be
founded on a different cause of action.
Similar view has been reiterated by the
Apex Court in Commissioner of Income
Tax, Bombay v. T.P.Kumaran, (1996) 10
SCC 561; 1996 (11) SCC 112:Ladu Ram v.
Ganesh Lal, (1999) 7 SCC 50; and
Maharashtra Vikrikar Karmchari Sangathan
v. State of Maharashtra, AIR 2000 SC 622.

32. Thus, the settled legal proposition
in respect of the provisions of Order 2, Rule
2 CPC emerges is that if a party does not
ask for a relief for which he was entitled to
at the time of the institution of the suit it
would amount to waiver of that right and
cannot be claimed later in a subsequent
suit."
1 All] Rameshwar Singh and another V. District Judge, Faizabad and others
89

(2) Dadu Dayalu Mahasabha, Jaipur
(Trust) versus Mahant Ram Niwas and
another, reported in (2008) 11 Supreme
Court cases 753, relevant paragraph 28 of
which is quoted here-in-below:-

"28.Similarly the provisions of Order 2
Rule 2 bars the jurisdiction of the court in
entertaining a second suit where the plaintiff
could have but failed to claim the entire
relief in the first one. We need not go into
the legal philosophy underlying the said
principle as we are concerned with the
applicability thereof."

7. Under the strength of the aforesaid
observations of the court, it is stated that
since the issue in question was involved
substantially or incidentally in the earlier
suit and respondents failed to claim said
relief at that time, the present suit is barred
by Order 2 Rule 2 CPC.

8. On the other hand the learned
counsel
for
the
opposite
parties
Mr.R.S.Pandey submitted that the aforesaid
principle shall apply only when the cause of
action is the same, but since in both the suits
the cause of action is different, it is open for
the respondents to sue the relief for
declaration of sale deed as void in the
subsequent suit. He also cited a case of
State of Maharashtra and another versus
M/s.National
Constuction
Company,
Bombay and others reported in JT 1996
(1) SC 156, in which the Hon'ble Supreme
Court has referred its earlier decision
rendered in the case of Sidramappa
v.Rajashetty 1970 (1) SCC 186. In the
aforesaid case the Hon'ble Supreme Court
held that where the cause of action on the
basis of which the previous suit was
brought, does not form the foundation of the
subsequent suit, and in the earlier suit, the
plaintiff could not have claimed the relief
which is sought in the subsequent suit, the
plaintiff's subsequent suit is not barred by
Order 2 Rule 2 CPC.

9. After hearing the learned counsels
for the parties as well as upon perusal of the
record, I find that the dispute in Suit No.324
of 1987 relates to the Propriety of
Sarvarahkar.
Since
the
respondents/plaintiffs filed the suit to
declare them as Sarvarahkar even being
fully aware with the sale deed executed by
the petitioners, unless they are declared as
Sarvarahkar, there had no locus to challenge
the sale deed executed by the petitioners
being null and void.

10. In the suit No.324 of 1987 they
succeeded to get declared themselves as
Sarvarahkar by means of judgment and
decree
dated
6th
of
May,
2003.
Subsequently they instituted suit No.241 of
2004 seeking the decree for declaration of
the sale deed as void as by that time being
declared as Sarvarahkar they have achieved
the locus to challenge the sale deed,
therefore, in the light of the aforesaid facts I
am of the view that at the time of institution
of Suit No.241 of 2004, the cause of action
was illegal transaction of sale done by the
petitioners, thus it is all together different
from the cause of action of Suit No.324 of
1987.

11. In the case of Gurbux Singh v.
Bhooralal, reported in AIR 1964 SC
1810, the Constitution Bench of the Hon'ble
Supreme Court held that for the success of
the plea of a bar under Order 2 Rule 2(3) the
defendant raising 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; (ii) that in respect
of that cause of action the plaintiff was
entitled to more than one relief; (iii) that
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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. 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. 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.

12. In the case of Marwari Kumhar
and others versus Bhagwanpuri Guru
Ganeshpuri and another reported in
(2000) 6 Supreme Court Cases 735, firstly
the Marwari Kumhar community filed a suit
for declaration of their title against the son
and wife of Pujari of Temple, who started
claiming ownership to the property. The suit
was decreed in favour of community. The
respondents were held merely Pujaries. The
respondents filed the appeal which was
allowed, but the second appeal filed by the
community was again allowed in favour of
the community, thus the decree of the trial
court was restored by the High Court.
Thereafter the Pujaries again started
asserting their title, therefore, the suit for
possession of the property was filed by the
community. The heirs of the Pujari
contended that their father was the owner of
the property and claimed the title as his
heirs. They also contended that their father
as well as they themselves, had been in
open hostile and adverse possession for a
very long time and had acquired title on that
basis. They also contended that the suit was
barred under Order 2 Rule 2 CPC, as the
relief of possession had not been claimed.
The trial court decreed the suit relying upon
the earlier judgment and held that title in
property vested with the community and the
suit was not barred by Order 2 Rule 2 CPC.
The defendants filed appeals, which were
allowed holding therein that the defendants
had been able to prove that they had been in
possession for a long period of time and that
they perfected the titled by adverse
possession. In this manner the appellate
court dismissed the suit. The Plaintiff filed
the second appeal, which was dismissed by
holding therein that the defendants have
acquired title by adverse possession. The
matter reached the Hon'ble Supreme Court.
The Hon'ble Supreme Court held that both
the courts below erred in law and facts in
coming to the conclusion. The Hon'ble
Supreme Court held that the respondents
were parties to the earlier proceeding. The
earlier judgment was, therefore, binding on
both the respondents, in which it had clearly
been held that the title to the property vested
in the appellants and the respondents were
declared merely Pujaries, thus they were in
possession merely as Pujaries. Their claim
to title had been negated by the competent
court. That finding was binding on the
respondents. Both the First Appellate Court
and the Second Appellate Court failed to
appreciate that on principles of resjudicata
the respondents were precluded from
denying the appellant's title to the suit
property.
Accordingly
the
suit
was
maintained and decreed.

13. Keeping in view the facts of the
present case, it is obvious that the
proprietorship
of
Sarvarahkar
of
the
petitioners was disputed nevertheless the
other claimants (respondents) of suit
No.324 of 1987 executed sale deed in
favour of the petitioners. The Sarvarahkar
always keeps the status of Trustee and it is
the Deity who is beneficiary of the offerings
1 All] Ram Chandra Gupta V. Union of India and others
91
as well as the property attached thereto,
therefore, being Trustee, the Sarvarahkar
has had no right to transfer the property.

14. Upon perusal of the contents of
the paragraph 6 of the plaint of suit No.324
of 1987, it appears that it was stated that one
suit for declaration of the sale deed as
unauthorized and to declare the tenure
holder of the land was instituted by Mahant
Bhagwan Das before the Revenue court,
which was pending consideration at that
very time, the present position of the suit is
not disclosed, however, I am of the view
that for declaration of any document as
void, it is only the civil court, who is
competent not the revenue court.

15. After being successful in the suit
the respondents filed the subsequent suit
before the Civil Court for declaration of sale
deed as void. Though the earlier dispute is
still pending before this court in the second
appeal, but the decree passed by the trial
court as well as the appellate court has not
been interfered with till date, therefore,
under the strength of the said decree having
been attained the locus to challenge the sale
deed, the respondents filed the suit, which
cannot be rejected merely on the basis of a
technical plea raised by the petitioners. The
cause of action of the present suit is the
illegal transaction of sale, which is
altogether different to the earlier cause of
action of suit No.324 of 1987, therefore, in
the light of the observations of the
Constitution Bench of the Hon'ble Supreme
Court in the case of Gurbux Singh v.
Bhooralal (Supra), I am of the considered
opinion that the suit is not barred by Order 2
Rule 2 CPC. Therefore, the writ petition is
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 23592 of 2006

Ram Chandra Gupta

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Namwar Singh
Sri Sanjiv Singh

Counsel for the Respondents:
Sri K.C. Sinha (A.S.G.I.)
Sri N.P. Shukla
C.S.C.

Civil Services Classification Control of
Appeal Rules 1965-Rule 68 (1), 69 (1)
(c)-claim of interest delay in paymentamount of gratuity withheld during
pendancy of disciplinary proceedingpetitioner retired in Sept. 95-amount
paid July 1996-can not be learned as
inordinate delay-moreover interest not
claimed in original application can not be
allowed to before writ court.

Held: Para 24 & 34

The delay between 25th June, 1998 and
23rd March, 1999 cannot be said to be
inordinate delay having regard to the
facts and circumstances of the case,
particularly the fact that the disciplinary
proceedings came to an end on 25th
June, 1998, and thereafter, time was
taken for finalizing the payment of
gratuity to the petitioner. Therefore, the
payment of interest in respect of the
delayed payment of gratuity has been
rightly denied to the petitioner by the
Tribunal in the impugned Judgment and
Order.