P.K.Gopi v. Gopinathan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 RSA No.463 OF 2021** **Judgment and decree dated 14.10.2020 in A.S.No.46/2017 on the file of the Additional District Court-III, Mavelikara & the judgment and decree dated 16.7.2015 in O.S.No.252/2013 on the file of the Munsiff's Court, Mavelikara** ## **APPELLANT/APPELLANT/PLAINTIFF:** **P.K.GOPI, AGED 76 YEARS, S/O.KRISHNAN KUTTY, MADATHIL PADEETTATHIL, ORIPRAM MURI, CHENNITHALA VILLAGE.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 GOPINATHAN, AGED 74 YEARS, S/O.NANU, PERUMANOOR HOUSE, KUTTAMPEROOR MURI, MANNAR VILLAGE – 689 622. 2 CHINNAMMA, AGED 64 YEARS, W/O.GOPINATHAN, PERUMANOOR HOUSE, KUTTAMPEROOR MURI, MANNAR VILLAGE – 689 622.** R.S.A.No.463 of 2021 ..2.. **3 GOPAKUMAR, AGED 39 YEARS, S/O.GOPINATHAN, PERUMANOOR HOUSE, KUTTAMPEROOR MURI, MANNAR VILLAGE – 689 622.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON 12.07.2021 DELIVERED THE FOLLOWING:** R.S.A.No.463 of 2021 ..3.. ## **[CR]** ## **JUDGMENT** This Regular Second Appeal is directed against the judgment and decree dated 14.10.2020 in A.S.No.46/2017 on the file of the Additional District CourtIII, Mavelikara (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 16.7.2015 in O.S.No.252/2013 on the file of the Munsiff's Court, Mavelikara (hereinafter referred to as 'the trial court'). 2. The above second appeal arises from a suit for recovery of possession and consequential permanent prohibitory injunction. The appellant and the respondents herein are the plaintiff and defendants 1 to 3 respectively in the suit. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court wherever the context so requires. R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** 3. The suit was filed by the plaintiff alleging that the plaint schedule property having an area of 8 cents along with the eastern 10 cents originally belonged to the defendants 1 and 2. On 20.3.2000, after accepting the entire sale consideration for the entire area of 18 cents, the defendants 1 and 2 handed over possession of the entire property to the plaintiff at the rate of Rs.5,000/per cent. It was agreed that a document would be executed later as and when demanded by the plaintiff since they availed of a bank loan by mortgaging the properties. While so, at the intervention of mediators, the defendants 1 and 2 executed Ext.A1 agreement on 11.9.2012 agreeing to execute the sale deed within 6 months admitting the receipt of entire sale consideration. Later, the defendants 1 and 2 unilaterally resiled from the contract which necessitated the filing of O.S.342/2012. At the intervention of mediators, the defendants 1 and 2 R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** executed sale deed with respect to eastern 10 cents to which the plaintiff had to accept. Accordingly, on 11.3.2013, Ext.A2 sale deed was executed in favour of the plaintiff with respect to 10 cents on which date the suit was withdrawn as not pressed. The original of Ext.A1 was taken back by the defendants 1 and 2. On 11.3.2013 itself, the defendants 1 and 2 executed Ext.A3 settlement deed in favour of the 3[rd] defendant. In spite of Ext.A3, the plaint schedule property was in the possession of the plaintiff. On 15.3.2013, the plaintiff was forcibly dispossessed by the defendants. Hence the suit was filed for recovery of possession and consequential injunction. 4. The defendants 1 and 2 filed a joint written statement contending that the suit is barred by principles of _res judicata_ and Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the C.P.C.') They denied the receipt of sale consideration from the plaintiff R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** as per Ext.A1 agreement. According to them, the plaintiff was only permitted to reside in the shed in the plaint schedule property. The plaintiff approached the defendants 1 and 2 for purchasing the plaint schedule property and an agreement was executed for sale at the rate of Rs.7,000/- per cent. But the plaintiff could not raise the amount agreed and thus he could not perform his part of agreement. Thereafter the plaintiff filed O.S.No.342/2012 for specific performance of Ext.A1 agreement dated 11.9.2012. Due to the intervention of the mediators, the defendants 1 and 2 agreed to sell eastern 10 cents and accordingly Ext.B1 was executed. Thereafter, the suit was withdrawn as not pressed. The defendants 1 and 2 did not forcibly take the original of Ext.A1 as stated by the plaintiff. The plaint schedule property absolutely belonged to the defendants 1 and 2 and they had every right to execute Ext.B1 in favour of R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** their son, the 3[rd] defendant. The plaintiff sold 7 cents out of 10 cents and he tried to construct a house in the remaining 3 cents which was found insufficient. The defendants 1 and 2 opposed the attempt of the plaintiff to encroach upon their property. The plaintiff has no cause of action to institute the suit and the suit is liable to be dismissed. 5. Before the trial court, PWs.1 to 4 were examined and Exts.A1 to A8 were marked on the plaintiff's side. The 1[st] defendant was examined as DW1 and marked Exts.B1 to B5. The Commission report and Sketch were marked as Exts.C1 and C1(a) respectively. 6. Heard the learned counsel for the appellant. 7. The learned counsel for the appellant submitted that the two courts below went wrong in holding that the suit is barred by estoppel and Order 2 Rule 2 of the C.P.C. since both the suits are distinct and separate reliefs based R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** on different cause of action. The learned counsel further submitted that going by the law laid down by the Apex Court in **Vallabh Das v. Madan Lal** [1970 KHC 232] and this Court in **Raman Ittiyathi and Others v. Pappy Bhaskaran and Others** [1989 KHC 337] it is clear that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. According to the learned counsel for the appellant, the two courts below failed in appreciating the evidence on record as Exts.A1 to A3 and depositions of PWs.1 to 3 and DW1 would irresistibly lead to the inference that the plaintiff had been in absolute possession of the suit property and he was dispossessed by the defendants. R.S.A.No.463 of 2021 **==> picture [22 x 8] intentionally omitted <==** 8. The case of the plaintiff is that he was dispossessed from the plaint schedule property by the defendants. According to him, he was in possession of the property having an extent of 18 cents 15 years back for Rs.5,000/- per cent. He claimed absolute possession and enjoyment of 18 cents of land. However, the defendants contended that the plaint schedule property was not in the possession of the plaintiff as contended by him. According to the defendants, when the plaintiff was in need of money, the property was mortgaged by the defendants. To discharge the above debt, the defendants 1 and 2 handed over the entire property to the plaintiff at the rate of Rs.5,000/- per cent. It was agreed that the document will be executed later and accordingly the defendants 1 and 2 executed Ext.A1 in favour of the plaintiff agreeing to execute the sale deed. R.S.A.No.463 of 2021 ..10.. 9. Admittedly, the plaintiff filed suit for specific performance of contract on the strength of Ext.A1 as O.S.No.342/2012 before the Sub Court, Mavelikara. The said suit was filed for specific performance of contract for an area of 18 cents of property as contemplated under Ext.A1 agreement. The plaintiff suing for the specific performance of Ext.A1 agreement for the transfer of immovable property had not asked for possession of the property in addition to such performance presumably for the reason that he was in possession of the property even prior to the institution of the suit on payment of sale consideration in advance. Any other relief to which he may be entitled including the advance paid in case specific performance is refused is also not found a place in the suit. 10. The very fact that the plaintiff instituted a suit for specific performance of contract pursuant to Ext.A1 R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** agreement is more than sufficient to presume that the plaintiff has pleaded some of the essential facts bringing out the cause of action. The defendant filed in evidence the pleadings of the previous suit and thereby proves to the court the identity of the causes of action as well as the identity of the parties. The plaintiff filed Ext.B2 plaint in O.S.No.342/2012 dated 28.9.2012 of the Sub Court, Mavelikara claiming reliefs for specific performance for the entire 18 cents covered under Ext.A1 agreement. Thereafter, the parties negotiated the matter out of court due to the intervention of the mediators and the case was settled between the parties out of court. Whereupon Ext.B4 memo dated 11.2.2013 was filed in O.S.No.342/12 stating that the suit is not pressed. Accordingly, the suit was dismissed as not pressed as per Ext.B5 judgment dated 20.2.2013. Consequently, Ext.A2 sale deed dated 11.3.2013 of the Sub Registrar's Office, Mannar was R.S.A.No.463 of 2021 ..12.. executed by the defendants 1 and 2 in favour of the plaintiff in full and final settlement of the plaint claim involved in the suit. Under the circumstances, the plaintiff cannot be allowed to institute a subsequent suit for recovery of possession for an area of 8 cents which is part and parcel of Ext.A1 agreement when the claim in the later suit is based on the very same documents which formed the foundation for the earlier suit. 11. Sub-rule (1) to Rule 2 of Order 2 Rule 2 of the C.P.C. deals with the frame of the suit and enables the plaintiff to abandon or relinquish a part of his claim before filing his plaint. The provisions of Order 2 Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** court in one suit as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order 2 Rule 2 is to avoid multiplicity of suits. 12. It is settled law that where the plaintiff is aware of his relief and yet omits to claim in the previous suit, a subsequent suit for such relief is barred. The learned counsel for the appellant contended that the rule does not preclude second suit based on distinct cause of action. To make the Rule applicable, the defendants must satisfy three conditions, namely, (i) the previous and second suit must arise out of the same cause of action; (ii) both the suits must be between the same parties; and (iii) the earlier suit must have been decided on merit. In the previous suit, the plaintiff virtually claimed the relief of specific performance simpliciter without asking for recovery of possession in addition to specific performance R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** of Ext.A1 contract for sale or any other relief which he may be entitled including refund of advance sale consideration. All the above, reliefs emanate from the same cause of action. There is evidence to show that the cause of action is the same as in the previous suit. In the earlier suit, the plaintiff intentionally relinquished a portion of his claim by virtue of Ext.B4 memo. Hence he would not be entitled to sue subsequently in respect of the portion of his claim so omitted or relinquished. 13. Where the plaintiff, while withdrawing the earlier suit obtains permission of the court to file fresh suit for comprehensive relief, the subsequent suit will not be barred under Order 2 Rule 2 of the C.P.C. In the instant case, the earlier suit was dismissed as not pressed intentionally relinquishing the rest of the claim by way of settlement between the parties out of court. Resultantly, Ext.A2 sale deed was executed by the defendants in R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** favour of the plaintiff. Hence Order 2 Rule 2 of the C.P.C. is applicable in this case. The previous suit and the subsequent suit arise out of the same cause of action and they are also between the same parties. 14. Order 2 of the C.P.C. deals with the frame of suit and every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Where the earlier suit filed by the plaintiff was not decided on merits, requirement of Section 11 of the C.P.C. cannot be said to have been satisfied and therefore, the second suit is not barred by the principles of _res judicata._ However, Order 2 Rule 2 of the C.P.C. confers certain privileges in favour of the plaintiff who brings the suit, but simultaneously it imposes a restriction in bringing another suit for which any of the reliefs which he could have prayed in the earlier suit. In the case at hand, the causes of action and the relief claimed in the two suits are R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** considered to be the same. The two suits are inherently similar. There are no materials before this Court to hold that the claim in this suit is in fact founded upon a cause of action distinct from that which was the foundation for O.S.No.342/2012 of the Sub Court, Mavelikara between the same parties as held in **Vallabh Das's** case (supra) and **Raman Ittiyathi's** case (supra). 15. The trial court and first appellate court concurrently held that the plaintiff had not been in possession of the suit property in part performance of the contract prior to the institution of the suit. Hence the trial court and the first appellate court concurrently declined the prayer for recovery of possession on the strength of previous possession. Further, the trial court and the first appellate court held that the suit is barred under Order 2 Rule 2 of the C.P.C. There is no questions of law involved in this appeal; far less any substantial questions of law. R.S.A.No.463 of 2021 **==> picture [28 x 8] intentionally omitted <==** Hence this R.S.A is liable to be dismissed. For the reasons mentioned above, this appeal fails and the same is dismissed in limine. There will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj