Oral Judgment:

1. Both these proceedings can conveniently be disposed of by this common judgment as they are between the same parties and the issues involved are inter-linked.

2. The appeal is aimed against the judgment and order dated 26.4.1988 passed by the City civil court Judge, Bombay in S.C. Suit No.28847 of 1982 whereby the suit came to be dismissed under the provisions of Order 2 Rule 2 of the C.P.C., whereas the Appeal from Order has arisen due to order dated 5.3.1990 passed by the City Civil Court Judge, Bombay, dismissing the notice of motion of the present appellant.

3. The facts giving rise to the dispute, in nut-shell, are thus-

The plaintiff-appellant appears to be a retired pensioner, while the defendant No.1 is a builder an developer of various properties. On 10.9.1974, an agreement came into existence between the plaintiff and defendant No.1 whereby the plaintiff was to purchase and defendant No.1 was to sell flat No.C-23 on third floor of a construction proposed on Plot Nos.702/704 at Dadar in T.P.S.-IV, Mahim area. The price agreed upon was Rs.26,500/-. Accordingly, an agreement was entered into between the two and out of the said consideration, a sum of Rs.23,576/- came to be paid by the plaintiff and received by defendant No.1. There had been some considerable delay in the construction and hence the plaintiff made a query to the defendant No.1 but defendant No.1 could not give any satisfactory answer. In October or November 1974, One Mahadeshwar informed the plaintiff that the said flat in question was sold to him (Mahadeshwar). The plaintiff confronted the defendant No.1 and there had been another agreement by way of modifying the earlier agreement which took place on 30th July, 1975, where instead of Flat No.C-23 on the third floor, Flat No.15 on the fourth floor was Agreed to be sold to the plaintiff keeping the other terms of the earlier agreement intact. The plaintiff claimed that only balance of Rs.2,424/- remained to be paid out of the entire consideration, which was to be paid on plaintiff being put in possession. However, subsequently, despite the valid and subsisting agreement for this flat No.15 on 4th floor, defendant No.1 put up second defendant in possession of this flat No.15 and when the plaintiff questioned defendant No.1 about this aspect, plaintiff was informed by defendant No.1 that defendant No.2 was put in possession as a temporary arrangement and defendant No.2 would be shifted to the flat allotted to him on third floor as soon as the same became vacant and thereupon the plaintiff was to be given possession of the said flat. The plaintiff also claimed that the first defendant gave an undertaking in wiring on 20.6.1977 to the plaintiff. It appears that the plaintiff also prosecuted defendant No.1 for cheating in criminal case and defendant No.1 was convicted. Thus, according to the plaintiff, the said agreement dated 30.7.1975 still subsisting and that was also got registered. According to him, he is entitled for recovery of possession from the defendants. Defendant No.3 appears to be mother of defendant No.2, and is joined as a party as it was transpired from the say of defendant No.2 that the agreement was between defendant Nos.1 and 3. Thus, according to the plaintiff he was ready and willing to pay the balance as per the agreement and was entitled to get possession of the flat. He showed his willingness to perform the part of the contract and, therefore, plaintiff prayed for declaration that the agreement dated 30.7.1975 was valid and subsisting and was enforceable in law against the defendants and decree against the defendants to hand over the possession of flat No.15 on the fourth floor in the building in question.

4. Defendant No.1 filed his written statement and did not oppose the plaintiff’s claim. However, defendants 2 & 3 filed their written statement vehemently opposing the claim and raised contentions to the effect that the suit was bared under Order 2 Rule 2 of the C.P.C. and was liable to be dismissed with costs. The plaintiff had filed the earlier suit in the said court being

Suit No.122 of 1978 on the same cause of action as the present suit, without obtaining leave under Order 2 Rule 2 of the C.P.C.

In view of this factual matrix, the learned Trial Judge raised preliminary issue to the effect whether the suit was bared under Order 2 rule 2 of the C.P.C. and thus it was liable to be dismissed. Both the parties were put to contest the suit on the said preliminary issue. The learned Trial Judge heard the suit on merits and on the basis of this preliminary issue came to the conclusion that the suit was barred by the provision of order 2 rule 2 of the C.P.C. because the previously instituted Suit No.122 of 1978 was dismissed on 6.12.1983 as the plaintiff was absent and, therefore came to be dismissed.

Hence the present appeal.

5. Heard learned counsel for both parties in the first appeal as well as in the appeal from order, exhaustively. I have also perused the entire record.

It may be noted that, in the course of hearing of this appeal, my attention was invited to the contents of material paragraphs from the plaint of the previously instituted Suit No.122 of 1978. It is common ground that earlier said suit was filed by this very plaintiff against the defendant No.1 and the present defendant No.2 was defendant No.3 in that suit. It appears that defendant No.2 in the said suit was constituted Attorney of defendant No.1. therefore, it needs no stretch to say that in that said suit also the facts and circumstances alleged were almost identical and to put them in a nut-shell were to the effect, taking place of initial agreement dated 10.9.1974 mentioning flat No.G-23 on third floor, then modification of that agreement on 30th July, 1975, substitution flat No.15 on the fourth floor instead of earlier flat, the consideration amount was of Rs.26,500/-. Intermeddling by Mahadeshwar which resulted in modifying or changing the flat number, then putting defendant No.3 (present defendant No.2) in possession of the flat. Therefore, it is quite clear that the material averments in the earlier suit including cause of action mentioned, if read along with allegations in the present suit, there cannot be any dispute that they are on the same foundation, the same allegation and same situation. Therefore, if one resumes in the substance of the matter in both suits, it will have to be said that the same appears to be identical. The only slight variance which appears between both suits would be that in the present suit, in para 4, the plaintiff appears to have averred that plaintiff approached defendant No.1, he represented to the plaintiff that the second defendant was put in possession as a temporary arrangement and would be shifted on third floor as soon as the same is vacant. He also referred to writing alleged to be given by defendant No.1 on 20.6.1977. That appears to be the only new addition alleged in the present suit. If we strictly compare the allegations in the previous suit seen in Exh.2 collectively. It is also difficult to treat this averment referred to as new, as the earlier suit appears to have been filed on 16.1.1978. The aforesaid writing mentioned in para 4 has alleged to be dated 20.6.1977 and, therefore, was naturally within the knowledge of the plaintiff even before filing of the previous suit. So by pointing out this particular new averment or impressing it to be some new averment, one cannot say that the case is different one.

6. The learned counsel or the appellant vehemently urged that the present suit of the plaintiff is to claim specific performance of the agreement coupled with the relief of possession, but the earlier suit was for injunction simplicitor. In this way, it was sought too be urged that plaintiff cannot be prevented by the bar of Order 2 Rule 2 of the C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment because in the eye of law, while considering the bar of order 2 Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere comparison of the reliefs or variance in few allegations here or there would have no relevance. On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed.

In this regard, time and again, this Court as well as the apex Court have decided this issue on many occasions. The material principles laid down in various rulings can be summarized thus-

“(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is infact founded on a cause of action distinct from that which was the foundation for the former suit.

(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order too support his right to judgment.

(3) If the evidence to support the two claims is different than the cause of action are also different.

(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.

(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the court to arrive at a conclusion in his favour.”

Therefore, applying the said test in the light of the material pleadings of foundation on record in this proceeding, it would clearly appear that the foundation is same and the evidence that would be required is also the same. Therefore, what is virtually asked for by the plaintiff is that the agreement is still subsisting and enforceable by law and secondly possession is being asked for. Now, with the help of these two rulings, let us look to the pleadings in the previous suit, particularly, wording of para 12, that pursuant to the agreement of sale, the plaintiff has acquired a right in the said flat and the first defendant is under legal obligation to complete the same and deliver possession of the flat to the plaintiff and further, in breach of the said agreement, the defendants are now threatening to invade upon the plaintiff’s right, etc., would show that these very reliefs were within the knowledge of the plaintiff at the time of filing of previous suit and he could have very well asked for this relief because all the allegations made in the previous suit were themselves enough to ask for the relief. Instead of asking all these reliefs and taking the risk of only asking the relief of injunction and subsequently getting the suit dismissed for default on 6.12.1987, the plaintiff took all the risk. Consequently, the plaintiff has no case under Order 2 Rule 2 which is very much there and which is standing in his way too prosecute the present suit.

In view of this situation, I have no doubt whatsoever that the learned Trial Judge has rightly come to the conclusion that the suit was barred under Order 2 Rule 2 of the C.P.C. and has ordered dismissing the suit on that ground alone after raising preliminary issue is seen to be just, legal and proper.

7. Turning to the appeal against the judgment filed by the same appellant, it is to be noted that the notice of motion was moved before the lower Court for condonation of delay and for setting aside the order dated 6.12.1983 dismissing the suit for default. The suit No.122 of 1978 came to be dismissed on 6.12.1983 for default. The record is sufficient to show that the plaintiff himself alleges that he came to know about the said dismissal on 7.4.1988, however, the notice of motion for setting aside the order of dismissal is made on 10.3.1989. Therefore, it is obvious that there is no explanation whatsoever why the delay of four years was caused in moving the notice of motion. Even if it is assumed for a moment that he received copy of dismissal order in 1988, still it is not explained why the delay of 11 months took place for filing notice of motion for restoration of the suit. On perusal of the entire order of the lower Court and prevailing facts, it is clear that the plaintiff has not explained the inordinate delay caused in taking out the notice of motion for about one year. The explanation which is said to be given in his supporting affidavit is that, subsequent suit bearing No.2874 of 1982 was pending and the appeal was preferred against the said order of dismissal in the said suit of the High Court, delay was caused in taking out the notice of motion. In my considered that, that cannot be sufficient explanation at all and, therefore, the learned Trial Judge, in my view, was right in dismissing the notice of motion and hence the appeal against that order deserves to be dismissed. There is another angle from which impugned facts can be seen. Even if it is assumed for a moment that the appeal against the order is admitted and the suit is restored to the file of the lower court, still that was the suit for injunction simplicitor and there was no other relief claimed. As we have seen earlier, while deciding the appeal, it was not maintainable by virtue of provision of Order 2 Rule 2 of the C.P.C. Now, the relief for declaration is obviously barred due to bar of limitation and, therefore, the suit for injunction simplicitor cannot be entertained at all.

Under the circumstances, the restoration and consequent prosecution of the earlier suit would be a futile gesture from the point of view of the appellant. Be that as it may, the fact remains that the appeals are devoid of any merits and deserve to be dismissed and stands dismissed with no order as to costs.