1983 PLP 507 (CLC)

4. This second appeal under section 100, C. P. C. has been filed in this Court challenging the above-mentioned orders as being against the law.

5. From the perusal of the record I find that the two Courts below have not properly appreciated the provisions of rule 2 of Order 11 and rule 9, Order IX, C. P. C. It would be noticed that rule 2 of Order II, C. P. C. provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the `cause of action' and that if he omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. The proviso thereto lays down that 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 it he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted. Under rule 9 of Order IX, C. P. C. we find that the plaintiff is precluded from bringing a fresh suit in respect of the same `cause of action' where a suit is wholly or partly dismissed. He however is permitted to apply for setting aside the order of dismissal of the suit ex parte if sufficient cause is made out for his non-appearance when the suit was called for hearing.

6. This brings us to the consideration of the expression "cause of action" appearing in Order II, rule 2, C. P. C. and rule 9 of Order IX, C. P. C. the parties in the two suits otherwise being the same. The term cause of action is broadly defined as meaning every fact which would be necessary for the plaintiff to prove if traversed in order to support his right A to the judgment. The Honourable Judges of the Privy Council in the case of Mohammad Khalil Khan v. Mahbub Ali Mian (P L D 1948 P C 131), declared that the correct test in cases falling under Order Il, rule 2, C. P. C. will be whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit and that if the evidence to support the two claims is different then the causes of action are also different. Reference may usefully be also made to the case of Abdul Hakim v. Saadullah Khan (P L D 1970 S C 63). The Honourable Supreme Court, while laying down the test for interpreting the expression "cause of action" appearing in Order Il, rule 2, C. P. C. observed that in order that cause of action for the two suits may be the same it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also the infringement of his right at the hands of the defendants complained against in the two suits must have arisen in substance out of the same transaction. It was further held :- "A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases."

7. In the light of the above discussion we now proceed to examine whether the two suits, the earlier suit filed for recovery of possession under section 9 of the Specific Relief Act and the subsequent suit founded upon title and claiming the reliefs mentioned above, are based upon the same cause of .action or barred for any of .the alleged reasons. It would be relevant therefore to reproduce the provisions of section 9 of the Specific Relief Act herein blow :- "Section 9.-If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this section shall be brought against (the Central Govern ment or any Provincial Government). No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed." A perusal of the provisions referred above would show that the questions as to title are irrelevant for determination of issues involved in a suit filed under section 9 which has been enacted to afford a summary remedy against persons who have taken the law into their own hands provided the suit is brought within the prescribed period and other conditions laid therein are fulfilled. In a suit brought under the above-mentioned section 9 the plaintiff who has been dispossessed is entitled to succeed merely by proving that (1) he was in possession of the immovable property in suit, (2) that he had been c dispossessed by the defendants, (3) that the dispossession was not in accord ance with the law and (4) that the dispossession took place within six months of the filing of the suit.

8. Reference nay here be made to the case reported as Ganesh and another v. Dasso and another (A I R 1927 All. 669), where while construing the scope of section 9 of the Specific Relief Act it was observed :- "In suits under section 9, Specific Relief Act, the Court does not try the question of title and, therefore, the defendant cannot resist the plaintiff's suit oil the ground of his being the rightful owner. No matter how good the title of the dispossessor, the person previously in - possession is entitled to a decree for possession in suit under section 9, Specific Relief Act, provided he brings the suit within six months of the date of his dispossession." Having observed as above the learned Court held :- "This is not the case in suits for possession brought more than six months after the dispossession of the plaintiff. In such suits Courts have to try questions of title and, therefore, it is open to a defendant notwithstanding the previous possession of the plaintiff to resist the claim for possession by setting up and proving a title in himself. In other words, title is no defence in a suit under section 9, Specific Relief Act, but affords a conclusive defence in other suits." In the case of ,Fazal Mohammad v. Mohammad Usman (P L D 1970 Lah. 560) the learned High Court of Lahore observed that in suits under section 9 of the Specific Relief Act the only question to be seen is whether the plaintiff was in posses sion when he was dispossessed and that the Court does not decide the question of title and all that it is concerned with is as to whether possession has been disturbed without any authority of law and in disregard of it.

9. A distinction thus is to be drawn in cases which are filed under section 9 of the Specific Relief Act and those in which the plaintiffs claim decree in suits filed after six months of the date of dispossession on the basis of their title. Plea of title is not a defence in a suit under section 9 of the Specific Relief Act but affords a conclusive defence in other ordinary suits based on title. The resent suit filed by the plaintiffs/appellants is based upon their title as the tenants of the godown in dispute. In the earlier suit filed under section 9 the plaintiffs were to prove merely that they were dispossessed without their consent otherwise than in due course of law and that the suit was brought within six months of such dispossession, whereas in order to succeed in the subsequent suit the appellants have t4 establish that they have a sufficient and good title to claim posses sion and mere evidence of dispossession by the respondents would not entitle them to the grant of the decree for possession. The subsequent suit brought by the plaintiffs therefore cannot be termed as a suit based upon the same cause of action upon which the earlier suit was filed under section 9 of the Specific Relief Act.

10. A perusal of the impugned judgments shows that the two Courts below failed to take into consideration the above discussed principles and the distinction between the earlier suit brought for recovery of possession under section 9 of the Specific Relief Act and the subsequent suit based upon title in which the appellant prayed not only for recovery of possession of the godown as consequential relief pursuant to declaration sought that they are the tenants of the godown in dispute but also claimed compensa tion for damage already caused and for the losses suffered during the pendency of the suit till delivery of the possession of the said godown. Such a suit is obviously beyond the scope of section 9 of the Specific Relief Act which provides a summary process for the protection of possession of persons who are dispossessed from immovable property without their consent. The Court in such proceedings has no jurisdiction to go into the question of the title of the parties or grant any relief other than decree for recovery of the immovable property in dispute.

11. Here it may also be mentioned that even in terms of section 9 of the Specific Relief Act itself nothing therein . barred the plaintiffs, from suing to establish their title to the godown in disput-- and seek recovery of its possession. No appeal is competent against an order passed ,i.n suit under section 9 of the said Act. The aggrieved party may; apart from resorting to the remedy of preferring a revision petition in. exceptional .cases within the limited scope of section 115, C. P. C., is entitled to. institute a separate suit on the basis of his title for recovery of possession and mesne profits as the causes of action for sustaining the two suits are different. The conclusion therefore is that the subsequent suit filed by the appellants was competent and was not liable to be rejected under Ordcr VII, rule 11, C. P. C.

12. Lastly, I would like to point out that before the learned Courts below there was no material to warrant the assumption that the two -suits filed by the appellants were based upon the same cause of action. Even a copy of the plaint of the earlier Suit No. 144 of 1965 was not produced by the respondents in the absence of which it was not possible .for the. lower Courts to have reached the conclusion that the two suits were based on the same facts or cause of action. The impugned orders are thus based upon no material on record and are vitiated for this reason as well. I am fortified in the view expressed as above by the observations made in the case of Gurbux Singh v. Bhooralal (AIR1964SC1810).

13. For the reasons stated above this appeal succeeds and the impugned orders are set aside with costs. The suit is remanded to the trial Court for disposal in accordance with the law. M. Y. M. Suit remanded.