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TMI Blog1964 (4) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... iff was the absolute owner of the said property of which the defendant was in wrongful possession and that in spite of demands he had failed to vacate the same and was therefore liable to pay the mesne profits claimed. In the plaint he 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 with February 10, 1950. It was also stated that mesne profits had been decreed in the said suit. In the Written Statement that was filed by the present appellant, besides disputing the claim of the plaintiff to the reliefs prayed for on the merits, a technical plea to the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Civil Procedure Code should not have been entertained at all. He also considered the question as to whether, if the plea was available, it could have succeeded. On this he referred to the conflict of Judicial opinion on this point and held that if the point did arise for decision he would have decided in favour of the plaintiff and treated the cause of action for a suit for mesne profits as different from the cause of action for the relief of possession of property from a trespasser. In view, however, of his finding on the first point as to there being no material on the record to justify the plea of a bar under 0. 2. r. 2, Civil Procedure Code the learned District Judge did not rest his decision on his view of the law as regards the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action: Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property . as an aid to the construction of the term cause of action and the expression relief based on the same cause of action in 0. 2. r. 2(3). Reading these two provisions together it has been held that the cause of action for suits for possession of immoveable property and the cause of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material for the purpose of founding a plea of 0. 2. r. 2, Civil Procedure Code. In order that a plea of a bar under 0. 2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read: LP(D)ISCl-27(a) The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court. It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 before us and so it 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 0. 2. r. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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