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Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits was passed in respect of the same land-Whether cause of action same in both suits-Subsequent suit whether barred under provisions 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 the same. In 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 1.0, 1950. In the previous suit the mense profits had been decreed. In his written statement in the present suit the defendant appellant raised a technical plea under 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 Procedum 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. 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. 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 832 the trial Court because the pleadings in civil suit No. 28 of 1950 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 (3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more that one relief (iii) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.
PETITIONER: GURBUX SINGH Vs. RESPONDENT: BHOORALAL DATE OF JUDGMENT: 22/04/1964 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS CITATION: 1964 AIR 1810 1964 SCR (7) 831 ACT: Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits … Continue reading
Hindu Law–Widow–Surrender–Release in favour of daugh- ter and son-in-law–Validity–Suit by reversioner–Right to mesne profits. = Where a Hindu widow who had inherited her husband’s estate executed a deed, described as a deed of release, in favour of her daughter who was the next reversioner and the daughter’s husband jointly: Held, that though under the Hindu Law it is open to a widow to surrender the estate to the next reversioner even though the latter is a female heir, a widow cannot validly surrender in favour of the next female heir and a stranger jointly. Such a transaction cannot be treated as a surren- der in favour of the female heir and a transfer by the latter to the stranger, and is not binding upon the ultimate reversioners. Jagrani v. Gaya (A.I.R. 1933 All. 8561 approved. Nobo Kishore v. Harinath (I.L.R. 10 Cal. 1102) commented upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasa- mi Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad v. Gola Bhagat (I.L.R. 40 Cal. 721) referred to. In a suit by the reversioner to set aside an alienation made by a Hindu widow mesne profits can be awarded to the reversioner from the date of the widow’s death even though such an alienation is not void. Even in cases where the decree for possession in favour of the reversioner is conditional on his depositing the amount which has been found to have been used for the bene- fit of the estate, mesne profits can be awarded to the reversioner if he is ordered to pay interest on the amount payable to the alienee. Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to. Banwarilal v. Mahesh (I.L.R. 41 All. 63) distinguished.
PETITIONER: MUMMAREDDI NAGI REDDI AND OTHERS Vs. RESPONDENT: PITTI DURAIRAJA NAIDU AND OTHERS DATE OF JUDGMENT: 08/05/1951 BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. MAHAJAN, MEHR CHAND BOSE, VIVIAN CITATION: 1952 AIR 109 1952 SCR 655 CITATOR INFO : R 1952 SC 207 (19) R 1954 SC 61 (8) ACT: Hindu Law–Widow–Surrender–Release in favour of daugh- … Continue reading
subsequent allegations by parents not valid=The victim after sustaining burning injuries gave statement to the police to the effect that she sustained the burns in accidental fire when she was lighting wooden stove by pouring kerosene in it with a mug. The said statement of the victim-Ex.P.5 was registered by the police as FIR in this case. On that basis, originally the case was registered under Section 174 Cr.P.C. It is stated that the victim also gave similar statement to the Magistrate as dying declaration. But the said dying declaration was not marked by examining the Magistrate. Therefore, the lower Court should not have placed reliance on such dying declaration. During life time of the victim she did not go back on Ex.P.5 – statement given to the police. Subsequent to the death of the victim, parents and relations alleged dowry harassment against the accused. – MMMLAWREPORT
subsequent allegations by parents not valid=The victim after sustaining burning injuries gave statement to the police to the effect that she sustained the burns in accidental fire when she was lighting wooden stove by pouring kerosene in it with a mug. The said statement of the victim-Ex.P.5 was registered by the police as FIR in … Continue reading
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