GURBUX SINGH versus BHOORALAL

Citation: [1964] 7 S.C.R. 831 · Decided: 22-04-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

' 
' 
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 pro-
visions 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 appel-
lant 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 defendant-
appellant 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 de-
cided 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 respondent-
Bhooralal-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 

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