- (1.) THIS is a civil second appeal by the plaintiffs who filed a suit for possession of a piece of agricultural land Khasra No. 1406 measuring 11 Bighas 17 Biswas situated in village Godala in the Court of the Sub Divisional Officer, Nimbahera on 6-21950. The plaintiff-appellants alleged that they were the owners of the above mentioned agricultural land and that they had been forcibly dispossessed by the defendant-respondent about a year back. The defendant also cut the crop sown by the plaintiffs. The plaintiffs had filed a suit under Section 9 of the Specific Relief Act but were directed to file a regular suit for possession. The defendant denied the case of the plaintiffs. They also pleaded that the suit was not maintainable as the plaintiffs had previously filed a suit for the recovery of Rs 500/- as compensation for wrongly cutting the crop, but bad omitted to claim possession of the disputed land and as such they were barred under Order 2, Rule 2 of the Civil Procedure Code to maintain the suit. The learned Sub Divisional Officer, Nimbahera decreed the suit. On appeal by the defendants, the learned District Judge, Partapgarh, dismissed the suit on the ground that the suit was not maintainable in view of the provisions of Order 2, rule 2 C. P. C. as the plaintiff had failed to claim the possession of the disputed land when they filed the suit for the compensation for the cutting of the crop. He did not give any finding on other points, Hence this appeal on behalf of the plaintiffs.
(2.) IT is urged in this appeal that the provisions of this Civil Procedure Code were not applicable to the trial of the suit in the revenue Courts as at the time of the institution of the suit, the Tonk Land Regulation (hereinafter to be referred to as the regulations) prevalent in the former Tonk State governed the trial of the suit pending in the Court of the Sub Divisional Officer, Nimbahera. It is not disputed that the case is governed by the Regulations. Under Section 190 (a) of the Regulations "all claims arising from rights in and from the land vide definition of word 'land' are triable by the revenue Courts. " this case being a suit for possession of the agricultural land is one cognisable by the revenue Courts. Nowhere in the Regulations there is any provision for the applicability of Order 2, Rule 2 to the trial of a revenue case by a revenue Court. It is urged by the counsel for the respondent that Section 191 of the Regulations lays down that civil suits hearable by the Revenue Courts shall be dealt with as laid down in the Code of Civil Procedure, Act V of 1908. This section has received interpretation by a Full Bench of this Court in the case of Harji v. Revenue Board of rajasthan, ILR (1952) 2 Raj 162: (AIR 1952 Raj 132 ). It has been held that "civil suits hearable by the revenue Courts do not mean revenue cases or cases specified in Section 190 of the Tonk Regulations. " in view of the above authority, the contention of the learned counsel for the respondent that Order 2, Rule 2 of the C. P. C. applied to the present case, has got no force as the present case is a revenue case triable by a revenue Court.
(3.) IN order that the provisions of Order 2, Rule 2 of the C. P. C. may apply, it is necessary that that provision must be in force at the time when the previous suit was instituted and also at the time when the second suit is instituted, Order 2, rule 2 (1) provides that the civil suit is to include the whole claim. Order 2, Rule 2 (2) provides that "where a plaintiff 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. " This provision is in the nature of a penalty. It was enacted in order to ensure against the multiplicity of suits in respect of the same cause of action. By this provision, a plaintiff who fails to include the whole of the claim in his suit, cannot file any subsequent suit for any portion of the claim for which he has omitted to sue or which he has intentionally relinquished. The purpose of Order 2, Rule 2 is to prevent a party from enforcing a claim on one and the same cause of action by instalment. This has been so provided in order to avoid over congestion of the work in a Court of law and also unnecessary harassment of the defendant. In a sense this provision is akin to the provision of Section 11 of the Civil Procedure Code. But while the principle of res judicata is of universal application, it cannot be said that the provisions of Order 2, Rule 2 have also the same universal application. The decision of a Court of law has a sanctity and is to be respected for all times to come. This consideration places the principle of res judicata on a higher pedestal than the provisions of Order 2, Rule 2. By virtue of statute it may be laid down that a plaintiff who had omitted to include the whole of the claim in his suit, cannot subsequently, sue for the claim so omitted. But apart from statute this cannot be said to be a rule based on equity, justice and good conscience to be enforced by a Court of law. This being the position, Order 2, rule 2 can only apply when such law was in force at the time when the first suit was brought and is also in force when the second suit is brought. It should be in force when the first suit is brought for the reason that at the time when a plaintiff brings the first suit he must know the consequences of not including the whole claim arising out of the cause of action in that suit. If he does not know he may very well take it that he has the opportunity to institute as many suits as) he likes for the reliefs which he is entitled to get on the same cause of action, The provisions of Order 2, Rule 2 should be in force at the time when the second suit is brought because if they are not so in force at that time, the Court of law cannot enforce the penal part of it.;