Full Judgment
Dipak Mishra, J.
1. This is an application under Order 47 Rule 1 of the Code of Civil Procedure (herein after referred to as 'the Code') for review of the order dated 24-1-93 passed in Second Appeal No. 357/92. The learned Single Judge on 24-1-94 passed the following order:--
'The only contention of law raised by the learned Counsel is that the present suit filed by the plaintiff/respondent should have been held barred under Order 2 Rule 2, CPC. However, that plea is not taken in the written statement nor was raised and pressed before any of the Courts below. Belatedly, at this stage, it cannot be permitted to be revised. On all other questions, the findings recorded by the Courts below are those of facts and hence not open to reconsideration second appeal. The appeal does not raise any question of law much less a substantial one.
The appeal is dismissed in limine.'
2. Seeking review of the aforesaid order, it is submitted by Mr. Umesh Shrivastava that the learned Single Judge has committed an error by holding that the plea relating to Order 2 Rule 2 had not been taken in the written statement nor was raised before the Courts below, though as an actual fact such a plea was taken. Mr. Shrivastava has drawn our attention to Paragraph 18 of the written statement. On a perusal of the same, it is not clear that the plea was advanced in a proper manner though it was stated that an earlier suit was instituted for partition.
3. The sole question that arises for consideration is whether a plea relating to Order 2 Rule 2 should be entertained, on mere asking. Mr. Shrivastava, has placed reliance on the decision rendered in the case of Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors. (AIR 1954 SC 352). We have carefully perused the said judgment. We are of the considered view that the same is not applicable to the facts of the case and is distinguishable.
4. At this juncture we may profitably refer to the decision rendered by the Apex Court in the case of Gurbux Singh v. Bhooralal (AIR 1964 SC 1810). In Paragraph 7, their Lordships held as under :--
'Learned Counsel for the appellant, however, urged that in his plaint in the present suit the previous suit having been for 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 in 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 possible to verify whether the expression 'mesne profits' is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible 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. It 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 regards the legal relationship on the basis of which that relief was sought. It 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 was 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.'
4-A. From the aforesaid enunciation of law it become quite vivid that to substantiate the plea of Order 2 Rule 2 it is absolutely necessitous that the defendant has to bring on record the plaint of the previous suit so as to sustain the plea. In this context, we may usefully refer to the Full Bench decision of the Patna High Court rendered in the case of Jichhu Ram and Ors. v. Pearev Pasi and Anr. (AIR 1967 Patna 423) wherein their Lordships after referring to the case of Gurbux Singh (supra) in Paragraph 7 held as under:--
7. 'These observations are fatal to the defendants contention in this litigation. Though the bar of Order 2, Rule 2, was one of the issues expressly raised before the Original Court (issue No. 5), the defendants did not prove the plaint in the previous rent suit. The only documents proved on their behalf are copies of the order-sheets in the execution cause (Exts. A and B). Mr. Chatterji, however, urged that from certain admissions made in the plaint in this litigation this Court should reasonably infer what was the nature of the allegation in the previous rent suit, and by this process of reasoning decide whether the cause of action in the two suits was identical. This approach was condemned by their Lordships of the Supreme Court in the aforesaid judgment with these words:
'As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning.'
'Their Lordships condemned the action of the learned Trial Judge in that Court in inferring 'what the cause of action should have been from a reference to the previous suit contained in the plaint as a matter of deduction.'
I must, therefore, reject this contention of Mr. Chatterji'
5. We have carefully perused the Full Bench decision. It has been laid down that a technical Bar has to be established satisfactorily and there is no presumption in regard to technical remora.
6. It is not disputed by Mr. Shrivastava that the plaint of the previous suit was not brought on record and marked as an exhibit. Thus, on a mere plea put forth in an indirect manner the concept of Order 2 Rule 2 would not be attracted. In our considered opinion, there is no justification to review the order passed by the learned Single Judge.
7. Resultantly, the application for review, being devoid of merit stands dismissed. There shall be no order as to costs.