Gurbux Singh v Bhooralal

Facts

Bhooralal sued Gurbux Singh for possession of property and mesne profits. His plaint referred to an earlier suit (C.S. 28 of 1950) filed by him and his mother against Singh in which mesne profits had been decreed for the period ending 10 February 1950. Singh resisted the later suit by pleading that it was barred under Order 2 Rule 2 CPC because possession had not been claimed in the earlier suit. The pleadings of that earlier suit, however, were not produced on the record.

Issues

• Whether a plea of bar under Order 2 Rule 2 CPC can be sustained without the pleadings (plaint) of the previous suit being placed on record.
• What a defendant must establish to successfully invoke the bar under Order 2 Rule 2(3) CPC.

Arguments

Gurbux Singh contended that the cause of action for possession and mesne profits arose from the same wrongful possession, so by omitting to sue for possession in the earlier suit the plaintiff forfeited that relief and the later suit was barred. Bhooralal contended that the plea could not be entertained because the plaint of the earlier suit had not been filed and the relevant pleadings were not part of the record.

Held

The Supreme Court dismissed Singh's appeal and affirmed the order remanding the suit for trial on merits. It held that a plea of bar under Order 2 Rule 2 CPC can be established only if the defendant files in evidence the pleadings of the previous suit and thereby proves to the court the identity of the cause of action in the two suits. To attract the bar the defendant must show that the second suit is founded on the same cause of action as the earlier one, that the plaintiff was entitled to more than one relief in respect of that cause of action, and that he omitted, without the leave of the court, to sue for the relief now claimed. Since the plaint of the earlier suit had not been produced, the court could not determine the identity of the cause of action, and the bar could not be entertained. The Court drew an analogy with res judicata, where the prior judgment must be produced, and declined to resolve the conflicting Madras and Allahabad views on whether possession and mesne profits constitute the same cause of action.

Ratio decidendi

A plea under Order 2 Rule 2 CPC cannot succeed unless the defendant produces in evidence the plaint of the previous suit so as to prove the identity of the cause of action in both suits; the court cannot infer or speculate about the contents of an unproduced earlier pleading.

Significance

A leading authority on Order 2 Rule 2 CPC, establishing both the three conditions a defendant must satisfy to bar a subsequent suit and the evidentiary rule that the earlier plaint must actually be produced. It has been consistently followed by Indian courts on the requirements for pleading and proving the Order 2 Rule 2 bar.

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