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Regular Second Appeal No. 636 of 1965, decided on 23rd February 1967.

O. VII, r. Il read with S. 26 and O. VII, r. 1(e)(i)‑Plaint‑Grounds for rejection Plaint not containing "facts constituting cause of action" as required by O. VII, r. 1 (e) or not setting out value of subject matter of suit for purposes of jurisdiction and court fees is not "plaint" in eye of law‑Plaint can be rejected in such cases and fresh suit is competent.

O. VII, r. 11 (d) read with S. 11 and Limitation Act (IX of 1908), S. 3‑Rejection of plaint‑Suit found to be time‑barred after framing of issue on question of limitation‑Such suit to be dismissed in accordance with S. 3, Limitation Act, 1908‑Order of rejection of plaint in such a case is in fact one of dismissal Subsequent suit in respect of same cause of action and subject‑ matter barred as res‑judicata‑[Rejection of time‑barred plaint is, in practice, ordered on report of ministerial officer of Court before registration of case.]

Where, after, summonses had been issued to defendant and an issue had been framed on the question of limitation, the trial Court came to a finding that the suit was time‑barred, but pro ceeded to reject the plaint by recourse to clause (d), rule 11 of O. VII, Code of Civil Procedure:

Held, that in such cases, the Court should, in fact, proceed under section 3 of the Limitation Act which provides that if a suit is brought after the period of limitation prescribed therefore, the Court is bound to dismiss it, although the defendant does not raise the objection of limitation. Although the Court rejected the plaint in the earlier suit, it was in fact one of dismissal though in form one of rejection. Where the order in fact is one of dismissal though in form one of rejection, as where the Court purports to reject the plaint after a full trial on the merits and after recording a finding adverse to the plaintiff, a subsequent suit in respect of the same subject‑matter based upon the same cause of action will be barred as res judicata.

The prevailing practice is that the plaint is rejected if it is found to be barred by limitation only in cases where the office itself discovers that it is barred by limitation before registering it under Order IV, rule 2 and in such a case, the office brings the matter to the notice of the Judge, and if the Judge agrees with the ministerial officer he passes order under Order V1I, rule 11 (d) rejecting it.

O. II, rr. 2 (2), (3) read with S. 12‑Earlier suit for cancellation of sale‑deed as illegal and void‑Later suit for declaration that such deed was illegal and without consideration and plaintiff not bound by it‑Later suit barred under r. 2 (3)‑All allegations in two plaints need .not be identical for application of O. 11, r. 2‑Subsequent suit for declara tion would not be barred if earlier suit for cancellation had been dismissed as being incompetent.

Held, that the suit for declaration was barred under rule 2 of Order II of the Code of Civil Procedure for the reason that under clause (3) of rule 2 if a person is entitled to more than one relief in respect of the same cause of action, he has to sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he cannot afterwards sue for any relief so omitted.

In order to apply Order II, rule 2, it is not necessary that all the allegations made in the two plaints should be taken and that the bar would apply only when they are identical.

Ramanujam v. Sivalingam A I R 1924 Mad. 360 ref.

The position would have been different if the earlier suit had been dismissed on the ground that the suit for cancellation was not competent. The suit for declaration in that case, if it was otherwise competent, would not be barred under Order 11, rule 2 of the Code of Civil Procedure. A plaintiff who sues for a relief to which he is not entitled is not debarred from suing for a relief to which he is entitled.

Sardari Mal v. Hirde Nath A I R 1923 Lab. 459‑ref.

Abdul Rahman Ghazi for Appellant.

M. A. Khadim for Respondent.

Date of hearing : 23rd February 1967.

Shafiq Ahmad executed on the 23rd of January 1956 a sale‑deed in respect of land comprised in Khasra Nos. 2933, 2934, 2959, 2936, 2962, 2963, 2965, 2701 and 2966 of village Ichhra, Lahore, in favour of Mirza Muhammad Anwar Beg, respondent. He filed a suit for a declaration that the sale‑deed was void, illegal and inoperative, and prayed that the same be cancelled. The learned Civil Judge held that the suit was filed after a period of more than three years of the execution of the sale‑deed and it was barred under Article 91 of the Limitation Act. He, therefore, rejected the plaint by his order dated the 31^st of January 1963. Under clause (2) of section 2 of the Code of Civil Procedure, the rejection of the plaint is deemed to be a decree. The appellant preferred an appeal against this order which was dismissed by the learned Additional District Judge on the 30th of May 1963. He then filed afresh suit on the 1st of July 1963 for a declaration that the sale‑deed dated the 23rd of January 1958 in respect of the said land was illegal and without consideration, and that he was not bound by it. The suit was dismissed by the learned Civil Judge by his order dated the 13th of April 1964 on the ground that this was barred by res judicata. The appeal was dismissed by the learned Additional District Judge. This is the second appeal.

2. Learned counsel for the appellant relied on rule 13 of Order VII of the Code of Civil Procedure to contend that the second suit was competent. It is provided in rule 13: "The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." The plaint is rejected under rule 11 of Order VII, (a) where it does not disclose a cause of action ; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so ; and (d) where the suit appears from the statement in the plaint to be barred by any law. If a plaint is rejected on any of the grounds stated in clauses (a), (b) and (c) of rule 11, it is on account of technical grounds and it is just and equitable that in such cases the plaintiff should not be deprived of a right to claim his relief by instituting a fresh suit. It is also for the reason that under section 26 of the Code of Civil Procedure, a suit is " instituted by the presentation of a plaint." Under clause (e) of rule 1 of Order VII, it is necessary that the plaint should contain the particulars as to the "facts constituting the cause of action and when it arose." If the cause of action is not disclosed, it can hardly be a plaint. Similarly, under clause (i) of the aforesaid rule, it is necessary to give "a statement of the value of the subject‑matter of the suit for the purposes of jurisdiction and of court‑fees so far as the case admits" and before the plaint is entertained by the Court, it must bear the requisite court‑fees as required under the Court‑fees Act. If these things are not complied with, there is no plaint in the eye of law and for that reason there is no suit instituted. The plaint in such cases can be rejected under Order VII, rule 11. To such cases, rule 13 of Order VII applies and a plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action merely on account of such rejection.

3. The plaintiff bad filed the plaint earlier for a declaration that the sale‑deed was void and it should be cancelled. The plaint was in order because it contained all the particulars which are required under rule 1 of Order VII. The suit was, therefore, duly instituted within the meaning of section 26 of the Code of Civil Procedure. The summonses were issued to the defendant, and after an issue on the question of limitation was framed, the trial Court held that the case fell under Article 91 of the Limitation Act and by acting under clause (d) of rule 11 of Order VII rejected the plaint. In such cases, the Court should, in fact, proceed under section 3 of the Limitation Act which provides that if a suit is brought after the period of Limitation prescribed therefore, the Court is bound to dismiss it, although the defendant does not raise the objection of limitation. Although the Court rejected the plaint in the earlier suit, it was in fact one B of dismissal though in form one of rejection. Where the order in fact is one of dismissal though in form one of rejection, as where the Court purports to reject the plaint after a full trial on the merits and after recording a finding adverse to the plaintiff, a subsequent suit in respect of the same subject‑matter based upon the same cause of action will be barred as res judicata.

4. The prevailing practice is that the plaint is rejected if it is found to be barred by limitation only in cases where the office itself discovers that it is barred by limitation before registering it under Order IV, rule 2 and in such a case, the office brings c the matter to the notice of the Judge, and if the Judge agrees with the ministerial officer he passes order under Order VII, rule 11 (d) rejecting it. If summons has been issued to the defendant and an issue has been settled on a question of limitation, the usual practice is to dismiss the suit if it is found to be barred by limitation and not merely to reject the plaint. Even if it is held that the rejection of the plaint can be made not only after the plaint is registered as a suit, but even after issues are settled and parties are heard on such issues, it cannot be urged that the decision on any point so heard and determined is not res judicata under section 11 and that the failure of the suit by the rejection of the plaint in consequence of findings on material questions of law is not a final disposal of the suit falling within the doctrine of res judicata. Where a plaint is rejected under rule 11, the plaintiff is not thereby precluded front presenting a fresh plaint in respect of the same cause of action because under rule 13 the rejection of the plaint would not, on account of tile fact that it was rejected earlier, debar the plaintiff from presenting a fresh plaint. A subsequent suit in respect of the same cause of action may, however, be barred by the principles of res judicata or by any other provision of law.

5. The learned counsel for the appellant contends that the first suit was for cancellation of the document and this suit is for a declaration simpliciter and whereas Article 91 of the Limitation Act applied to the former case, Article 120 was attracted to the present case. In both the cases the appellant has challenged the sale‑deed dated the .23rd of January 1958. He has not denied the execution of the sale‑deed. In the circumstances, the fact that in the earlier suit he asked for the cancellation of the sale deed, and in the latter, he has only sought a declaration, does not make any difference. The position remains that he is actually seeking the cancellation of the document. However, the suit for declaration is barred under rule 2 of Order II of the Code of Civil Procedure for the reason that under clause (3) of rule 2 if a person is entitled to more than one relief in respect of the same cause of action, he has to sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he cannot afterwards sue for any relief so omitted. It was contended that sub‑rule (3) of rule 2 of Order It has no application to the facts of the case because the cause of action in the earlier suit for the cancellation of the document was different from the present one. If the contention be correct nothing more need be said, but I find myself to be unable to accept this contention. In order to apply Order II, rule 2, it is not necessary that all the allegations made in the two plaints should be taken and that the bar would apply only when they are identical. The allegations are to be looked into or to be soon with a view to forming an opinion as to what extent they disclose any cause of action. No authority is required for the proposition that cause of action means all the essential facts constituting right and its infringement. In order then to see what is the cause of action in respect of which the claim in the subsequent suit is made and what is the claim made in it, we are to see the allegations made in the plaint in the subsequent suit. If a certain allegation in the plaint discloses the same cause of action which could have supported the claim made in the earlier suit then simply because other additional allegations have also been made in it, the plaintiff would not be immune from the bar created by Order II, rule 2. If without the additional allegations in the second plaint, the cause of action made in it is complete then in that case the additional allegations would not constitute the cause of action at all. The allegations which the plaintiff‑appellant made in the present suit, are almost the same which he made in the earlier suit. In both the cases the subject‑matter of dispute is the sale deed, and it is the said deed which furnishes the cause of action in both the cases. Thus if the appellant was entitled to the relief of declaration besides the relief of cancellation or independent of that reason on out of the came cause of action, he should have sued for that relief also in the former suit. Since he had not done so the suit is barred under the said rule read with Section 12 of the Code of Civil Procedure. In Ramanujam v. Sivalingam (A I R 1924 Mad. 360), it was held that if a plaintiff basing his first suit upon an agreement to sell, sues for specific performance and omits to ask for possession, a second suit fur possession upon the same agreement is barred under Order 11, rule 2, C. P. C. The position would have been different if the earlier suit had been dismissed on the ground that the suit for cancellation was not competent. The suit for declaration in that case, if it was other wise competent, would not be barred under Order If, rule 2 of the Code of Civil Procedure. A plaintiff who sues for a relief to which he is not entitled is not debarred from suing for a relief to which he is entitled. This was the view taken in Sardari Mal v. Hirde Nath (A I R 1923 Lah. 459).

6. We find no merit in this appeal which is dismissed with costs.

A.H. Appeal dismissed.

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