# ' ' 7 S.C.R. SUPREME 001.;'RT REPORTS GURBUX SINGH v. BHOORALAL

- **Citation:** [1964] 7 S.C.R. 831
- **Court:** Supreme Court of India
- **Decided:** 1964-04-22
- **Case number:** Civil Appeal No. 583 of 1961
- **Bench:** P. B. Gajendragadkar, c. J .• K. HIDAYATULLAH, K. C. Das Gupta Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-supreme-001-rt-reports-gurbux-singh-v-bhooralal-3127
- **Pages:** 7

## Headnote

N.
W ANCHOO.
M.
AND N. RAJAGOPALA
Civil Procedure-Suit filed for recovery of possession m•d
mesne profits-In a previous suit a decree for mesne profits u:as
passed in respect of the same land-Wht!ther cause of action
same in both suits-Subsequent suit whether barred under provisions of the Code-Code of Civil Procedure, 1908 (Act 5 of
1908), Order 2 rr. (2) and (3).
The plaintiff-respondent brought a suit against the appellant for recovery of possession of certain property and for
mesne profits. The plaintiff claimed recovery of possession and
mesne profits on the ground that he was the absolute owner of
the property .described in the plaint and the defendant was in
wrongful possession of t)le same. fo the plaint the plaintiff
made reference to a previous suit that had been filed by him
and his mother (C.S. 28 of 1950) wherein a claim had been made
against the defendant for the recovery of the mesne profits in
regard to the same property for the period ending February l 0,
1950. fa the previous suit the mense profits had been decreed.
In his written statement in the present suit the defendantappellant raised a technical plea un·der Order 2 rule 2 of the
Civil Procedure Code to the maintainability of the suit.
Before evidence was led by the parties the trial court decided this preliminary issue raised by the defendant. The trial
court held that the suit was barred under 0. 2 r. 2 of the Code.
On appeal, the Appellate Court held that the plea of a bar
under Order 2 rule 2. Civil Procedure Code should not have
teen entertained at all because the pleadings in the earlier suit·
C.S. 28 of 1950 had not been filed in the present case.
Therefore, the Appellate Court set aside the order of the
trial Court. Against this order the defendant preferred an
appeal which was dismissed by the High Court. The appellant
obtained special leave against the judgment of the High Court.
Hence the appeal:-
Held: (i) A plea under Order 2 rule 2 of the Code based
on the existence of a former pleading cannot be entertained
when the pleading on which it rests has not been produced. It
is for this reason that a plea of a bar under 0. 2 r. 2 of the
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. In
other words a plea under 0. 2 r. 2 of the 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. Wlithout 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
refer€nce to the reliefs which were then claimed. On the facts.
of this case it has to be held that the plea of a bar under 0,
2 r. 2 of the Code should not have been entertained at all by
1964
April 22
196l
·G·urbux
Singh
v.
JJluJQralal
832
SUPREME COURT REPORTS
[196!]
the trial Court because the pleadings in civil suit No. 28 of
liJ]iO_ were not filed by the appellant in support of this plea.
(ii) in order that a plea of a bar under 0. 2 r. 2(.•\ of the
Code should succeed the defendant who raises the plea must
make out (i) that the second suit was in !espect. of the sa::de
cause of action as that on which the previous suit v.:as _bas
•
(ii) that in respect of that cause of act10n ~he plamllff. was
entitled to more than one relief. (iii) th~t bemg thus ent:tle~
w more than one relief the plamtiff, without leave obtame
from the Court omitted to sue for the rellef for which the
second suit had been filed.

## Text

'
'
7 S.C.R.
SUPREME 001.;'RT REPORTS
GURBUX SINGH
831
v.
BHOORALAL
[P. B. GAJENDRAGADKAR, c. J .• K.
HIDAYATULLAH, K. C. DAS GUPTA
AYYANGAR, JJ.J
N.
W ANCHOO.
M.
AND N. RAJAGOPALA
Civil Procedure-Suit filed for recovery of possession m•d
mesne profits-In a previous suit a decree for mesne profits u:as
passed in respect of the same land-Wht!ther cause of action
same in both suits-Subsequent suit whether barred under provisions of the Code-Code of Civil Procedure, 1908 (Act 5 of
1908), Order 2 rr. (2) and (3).
The plaintiff-respondent brought a suit against the appellant for recovery of possession of certain property and for
mesne profits. The plaintiff claimed recovery of possession and
mesne profits on the ground that he was the absolute owner of
the property .described in the plaint and the defendant was in
wrongful possession of t)le same. fo the plaint the plaintiff
made reference to a previous suit that had been filed by him
and his mother (C.S. 28 of 1950) wherein a claim had been made
against the defendant for the recovery of the mesne profits in
regard to the same property for the period ending February l 0,
1950. fa the previous suit the mense profits had been decreed.
In his written statement in the present suit the defendantappellant raised a technical plea un·der Order 2 rule 2 of the
Civil Procedure Code to the maintainability of the suit.
Before evidence was led by the parties the trial court decided this preliminary issue raised by the defendant. The trial
court held that the suit was barred under 0. 2 r. 2 of the Code.
On appeal, the Appellate Court held that the plea of a bar
under Order 2 rule 2. Civil Procedure Code should not have
teen entertained at all because the pleadings in the earlier suit·
C.S. 28 of 1950 had not been filed in the present case.
Therefore, the Appellate Court set aside the order of the
trial Court. Against this order the defendant preferred an
appeal which was dismissed by the High Court. The appellant
obtained special leave against the judgment of the High Court.
Hence the appeal:-
Held: (i) A plea under Order 2 rule 2 of the Code based
on the existence of a former pleading cannot be entertained
when the pleading on which it rests has not been produced. It
is for this reason that a plea of a bar under 0. 2 r. 2 of the
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. In
other words a plea under 0. 2 r. 2 of the 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. Wlithout 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
refer€nce to the reliefs which were then claimed. On the facts.
of this case it has to be held that the plea of a bar under 0,
2 r. 2 of the Code should not have been entertained at all by
1964
April 22
196l
·G·urbux
Singh
v.
JJluJQralal
832
SUPREME COURT REPORTS
[196!]
the trial Court because the pleadings in civil suit No. 28 of
liJ]iO_ were not filed by the appellant in support of this plea.
(ii) in order that a plea of a bar under 0. 2 r. 2(.•\ of the
Code should succeed the defendant who raises the plea must
make out (i) that the second suit was in !espect. of the sa::de
cause of action as that on which the previous suit v.:as _bas
•
(ii) that in respect of that cause of act10n ~he plamllff. was
entitled to more than one relief. (iii) th~t bemg thus ent:tle~
w more than one relief the plamtiff, without leave obtame
from the Court omitted to sue for the rellef for which the
second suit had been filed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 583 of
1961. Appeal by special leave from the Judgment and decree
dated August 12, 1959, of the Rajasthan High Court in Civil
Misc. First Appeal No. 50 of 1956.
Gopal Singh, for the appellant.
B. P. Maheshwari, for the respondent.
April 22, 1964. The Judgment of the Court was delivered
by
Ayyan9ar, J.
AYYANGAR, J.--The facts giving rise to this appeal, by
special leave, are briefly as folows:
The respondentBhooralal-brought a suit-Civil Suit 20 1954-in the
Court of the Subordinate Judge, First Class, Kekri against
the appellant claiming possession of certain property which
was described in the plaint and for mesne profits. The
allegation in the plaint was that the plaintiff was the absolute
owner of the said property of which the defendant was in
wrongful possession and that in spite of demands he had
failed to vacate the same and was therefore liable to pay the
mesne profits claimed. In the plaint he made reference to a
previous suit that had been filed by him and his mother (C.S.
28 of 1950) wherein a claim had been made against the defendant for the 'recovery of the mesne profits in regard to
the same property for the period ending with February 10,
1950. It was also stated that mesne profits had been decreed
in the said suit. In the Written Statement that was filed by
the present appellant, besides disputing the claim of the plaintiff to the reliefs prayed for on the merits, a technical plea·.
to the maintainability of the suit was also raised in these
terms:
"That 0. 2. r. 2, Civil Procedure Code is a bar to the
suit. When the suit referred to in paragraph 2 of
the plaint was filed the plaintiff had a cause of
action for the reliefs also. He having omitted to
sue for possession in that suit, is now barred from
claiming relief of possession. No second suit for
recovery of mesne profits is maintainable in law.
'
-
...
•
-
7 S.C.R.
SUPREME COURT REPORTS
833
Since the plaintiff had lost his remedy for the relief of possession he cannot seek recovery of
mesne profits also."
On these pleadings the learned Subordinate Judge frameli 5
issues and of these the 4th issue ran :
"Whether 0. 2. r. 2, Civil Procedure Code is a bar?".
Before evidence was led by the parties issue no. 4 was argued
before the learned trial Judge as a preliminary issue and the
Court recorded a finding that the suit was barred by the provision named and directed the dismissal of the suit.
The plaintiff preferred an appeal from this decree to the
additional District Judge and the appellate Court considered
this plea as regards the bar under 0. 2. r. 2, Civil Procedure
Code on two alternative bases. In the first place, the learned
District Judge pointed out that the pleadings in the earlier
suit-C.S. 28 of 1950-had not been field in the case and
made part of the record, so that it was not known what the
precise allegations of the plaintiff in his previous suit were.
For this reason the learned District Judge held that the plea
of a bar under 0. 2. r. 2, Civil Procedure Code should not have
been entertained at all. He also considered the question as to
whether, if the plea was available, it could have succeeded.
On this he referred to the conflict of Judicial opinion on this
point and held that if the point did arise for decision he would
have decided in favour of the plaintiff and treated the cause of
action for a suit for mesne profits as different from the cause
of action for the relief of possession of property from a trespasser. In view, however, of his finding on the first point as to
there being no material on the record to justify the plea of a
bar under 0. 2. r. 2, Civil Procedure Code the learned District Judge did not rest his decision on his view of the law as
regards the construction of 0. 2. r. 2(3). In the circumstances
he set aside the dismissal of the suit and remanded it to the
trial Court for being decided on the merits in accordance with
the law.
The defendant-the appellant before us-preferred a
second appeal to the High Court of Rajasthan and th•~ learned Single Judge dismissed this appeal. It is from this judgment
that the appellants have preferred this appeal after obtaining
special leave .
As already indicated, there is a conflict of judicial opinion
on the question whether a suit for possession of immoveable
property and a suit for the recovery of mesne profits from the
same property are both based on the same cause of action,
for it is only if these two reliefs are based on "the same cause
of action" that the plea of 0. 2. r. 2., Civil Procedure Code
L 'P(D)ISCT-2;
1964
Gurbu:e
Singl
v.
Bliooralal
Ayyangar,
J.
1964
Gurbux Singh
••
Bhooralal
A'!J"J<Jnya;, J.
834
SUPHEME COURT REPORTS
[1964]
that was raised by the appellant could succeed. Clause (3) of
0. 2. r. 2, Civil Procedure Code that is relevant in this context
reads:
"(3) 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 reliefs so omitted."
Some of the High Courts, notably Madras, have in this connection, referred to the terms of 0. 2. r. 4 which runs:
"R. 4. No cause of action shall, unless with the leave
of the Court. be joined with a suit for the recovery
of immoveable property, except-
(a) claims for mesne profits or arrears of rent in
respect of the property claimed or any part
thereof;
lb) claims for damages for breach of any contract
under which the property or any part thereof
is held; and
·
(c) claims in which the relief sought is based on the
same cause of action:
Provided that nothing in this rule shall be deemed
to prevent any party in a suit for foreclosure or
redemption from asking to be put into possession of the mortgaged property".
as an aid to the construction of the term 'cause of action' and
the expression 'relief based on the same cause of action' in
0. 2. r. 2(3).
Reading these two provisions together it has
been held that the cause of action for suits for possession of
immoveable property and the cause of action for a suit in
respect of mesne profits from the same property are distinct
and different.
On the other hand, it has been held. particularly by the High Court of Allahabad that the basis of a
claim for mesne profits is wrongful possession of property and
so is a claim for possession and thus the cause of action for
claiming either relief is the same viz., wrongful possession of
property to which the plaintiff is entitled. On this reasoning
it has been held that a plaintiff who brings in the first instance
a suit for possession alone or for mesne profits alone is afterwards debarred from suing for the other relief under 0. 2. r.
2(3).
The learned trial Judge had, after referring to the
conflict of authority,' expressed his preference for the Allahabad view and had, therefore, upheld the defence.
At the
stage of the appeal the learned District Judge had, as already
pointed out, expressed his preference for the other view. The
'
7 S.C.R.
SUPREME COURT REPORTS
835
learned Single Judge expressed his concurrence with the learned District Judge in preferring the Madras view as against the
decisions of the Allahabad High Court.
Learned counsel for the appellant sought to argue ·that
the Allahabad view was more in accordance with principle
and with the proper construction of 0. 2. r. 2(3), Civil Procedure Code. We do not consider it necessary to examine this
conflict of judicial opinion in this case as, in our opinion, the
learned District Judge was right in holding that the appellant
had not placed before the Court material for the purpose of
founding a plea of 0. 2. r. 2, Civil Procedure Code.
In order that a plea of a bar under O. 2. r. 2(3), Civil
Procedure Code should succeed the defendant who raises the
plea must make out (!) 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. No doubt,
a relief which is sought in a plaint could ordinarly 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 O. 2. r. 2, 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 C.S. 28 of 1950 were
not filed by the appellant in the present suit as evidence in
support of his plea under 0. 2. r. 2, 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 0. 2. r. 2, Civil Procedure Code was not maintainable. Learned counsel for the appellant, however, drew
our attention to a passage in the judgment of the learned Judge
in the High Court which read:
«
J,IP(D) !SCI-27(«)
1964
Gurbux Sing•
v.
Bkooralal
Ayuangar, J.
1961
Gvb11x Si11gh
v.
Bkoor11lal
Ayyangnr, J.
836
SUPREME COURT REPORTS
[1964]
"The plaint, written statement or the judgment of the
earlier court has not been filed by any of the parties to the suit.
The only document filed was the
judgment in appeal in the earlier suit. The two
courts have, however, freely cited from the record
of the earlier suit. The counsel for the parties
have likewise done so. That file is also before
this Court."
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 0. 2. r. 2, 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 0. 41. r. 27, 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 0. 41. r. 27, Civil Procedure Code. We can therefore
proceed only on the basis that the pleadings in the earlier
suit were not part of the record in the present suit.
Learned counsel for the appellant, however, urged that
in his plaint in the present suit the respondent had specifically
referred to the previous suit having been for mesne profits and
that as mesne profits could not be claimed except from a
trespasser there should also have been an allegation in the
previous suit that the defendant was a trespasser in wrongful
possession of the property and that alone could have been the
basis for claiming mesne profits. We are unable to accept
this argument. In the first
place, it is admitted that the
plaint. in the present suit was Jn Hindi and that the word
'mesne profits' is an English translation of some expression
used in the original. The original of the plaint is not before
us and so it is not possible to verify whether the expression
'mesne profits' is an accurate translation of the expression in
the original plaint. This apart, we consider that learneμ
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 0. 2. r. 2, 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
'
7 S.C.R.
SUPREllIJ~ COURT HEPOHTS
837
on the identity of the cause of acti~n 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. It is not im-
.possible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words
'mesne profits' therefore one need not necessarily infer that
the possession of the defendant was alleged to be wrongful.
1t is also possible that the expression 'mesne profits' has been
used in the present plaint without a proper appreciation of its
·significance in law. What matters is not the characterisation
·of the particular sum demanded but what in substance is the
allegation on which the claim to the sum was based and as
regards the legal relationship on the basis of which that relief
was sought. If is because of these reasons that we consider
that a plea based on the existence of a former pleading cannot
be entertained when the pleading on which it rests has not
·been produced. We therefore consider that the order of
remand passed by the learned Additional District Judge which
WM confirmed by the learned Judge in the High Court was
right. The merits of the suit have yet to be tried and this has
.been directed by the order of remand which we are affirming.
The appeal fails and is dismissed. In the circumstances of
the case there will be no order as to costs.
Appeal dismissed.
1~1/j).
Uwl_ux Si1~h
'·
Ul1u<1r11ffJ