Mehboob Ayub Khan & Ors. v. Afzal Khan & Ors.

11. As the emphasized portions show, even at the time of institution of the City Civil Court Suit, Afzal and Aslam knew that they were entitled in law to seek additional reliefs regarding Ayub’s estate. They also knew that there were additional reliefs they could have sought within the jurisdiction of the City Civil Court itself. There is simply no other explanation for the averments made in paragraphs 27, 28 and 29 extracted above.

12. In this suit, the City Civil Court granted an ad-interim injunction restraining Mehboob, Yasmin and Farida from acting on Ayub’s Will and from altering the status-quo regarding the shares of the 7th Defendant company. Mehboob, Yasmin and Farida appealed to this Court. On 27th July 2008, the City Civil Court’s ad-interim order was vacated with liberty to Afzal and Aslam to move the City Civil Court for ad-interim relief but after adequate notice to Mehboob, Yasmin and Farida. This evidently means that the adinterim relief was initially obtained ex parte, without notice.

13. As a matter of undeniable record, Afzal and Aslam never applied to the City Civil Court for ad-interim or interim relief after the appellate order. Instead, they filed the present Suit No. 2855 of 2008 in this Court. The reliefs sought are from page 201 onwards. The principal reliefs from (a) to (r) read thus: “a) It be declared that the deceased Ayub Mehboob Khan died intestate leaving behind the Plaintiff, Defendant No.1 to 3 as his only successors and his estate be administered as per law of intestate succession as applicable to deceased a Muslim. b) That it be declared that the Plaintiffs jointly are entitled to ½ share (1/4th share each) in the estate of deceased Late Ayub Mehboob Khan, more particularly described in Exhibit- ‘L’ to the Plaint, that is to say-

(i) That the Plaintiff Nos.[1] and 2 are entitled to 283 each thereby aggregate 566 shares shares of Mehboob Production Pvt. Ltd. the Defendant No.7 out of the 1132 shares held by the deceased.

(ii) Right, title and interest of Ayub Mehboob Khan in the 2nd and 3d floors together with terrace of the residential building at Mehboob Studio, Bandra (West), Mumbai. c) That this Hon’ble Court be pleased to declare that the Plaintiffs as heirs and successors of Mehboob Khan are entitled to use, occupation and enjoyment of the 2nd and 3rd floors of the residential building in the Mehboob Studio. d) That the estate of Late Ayub Mehboob Khan be ascertained and thereafter be administered by and under the direction of this Hon’ble Court and the share of the Plaintiff therein be secured to them. e) That it be declared that the purported Will dated 17th September, 2007 of Late Ayub Mehboob Khan:

(i) is null and void, non-est and not binding on the

(ii) In the alternative of (i) above, is not enforceable, not binding and cannot be acted upon or enforced as is contrary to the provisions of law and to the binding judgments. f) It be declared that the requisition dated 4th April, 2008 seeking transmission of shares in favour of Defendant No.1 to 3 on the basis of purported Will dated 17th September, 2007 without obtaining a probate thereof is illegal and invalid. g) It be declared that the 854 shares held by Late Ayub Mehboob Khan in the Register of Members and shown alongwith Defendant No.1 and 2 is merely nomenclature and is not a transfer that the Defendant No.1 and 2 do not get any right, title or interest in the said shares by virtue thereof. h) In the alternative to prayers above; It be declared that the bequests contained in the purported Will dated 17th September 2007 are on erroneous presumption of estate and therefore the bequest is incorrect and do not create any right in favour of Defendant Nos.[1] to 3. i) That the property in Exhibit- ‘L’ be partitioned by metes end bonds or such partition is not possible the same be sold and ½ share therein be handed over and delivered and paid to the Plaintiffs. j) That the Defendant Nos. 1 to 3 be ordered and decreed to disclose and discover on oath the estate of Late Ayub Mehboob Khan. k) It be declared that the 278 shares held by Late Ayub Mehboob Khan and forming part of his total holding of 1132 shares in the Register of Members, sought to be transferred in favour of Defendant No.3 on the basis of purported Will dated 17th September, 2007 is illegal, null and void. l) It be declared that in the event of any right, title or interest accrues in favour of Late Ayub Mehboob Khan in the 25 shares of Mrs.Sardar Akhtar Mehboob Khan upon adjudication of the Appeal from Order No.6196 of 2000 in Bombay City Civil Court No.6727 of 2000 the Plaintiffs shall be entitled to the right, title or benefit thereunder on the basis of their entitlement to succession to the estate of Late Ayub Mehboob Khan. m) That this Hon’ble Court be pleased to declare that the Certificate of Marriage of deceased and Defendant No.3 being based on false and fraudulent declaration is illegal, unlawful, void, non-est and not binding upon the Plaintiffs or estate of deceased. n) To be declared that the Defendant No.4 herein not being the natural child out of the wedlock of the deceased and Farida and adoption not being permissible under Islamic Laws is not entitled to any share in the estate of late Ayub Mehboob Khan. o) It be declared that the act of passing of Mohamed Arafat, the Defendant No.4, as Arafat Ayub Khan tantamount to impersonation and to hoodwink the public at large and such action is illegal and void. p) It be declared that the use of the name Arafat Ayub Khan by the Defendant No.4 is illegal. q) It be, declared that the occupation of Mohamed Arafat, the Defendant No.4 at the 2nd and 3rd floors together with terrace of the residential building in Mehboob Studio tantamount to trespass and the illegal entry. r) (i) That the Defendant Nos.[1] to 4 be directed to handover faithful account of their dealing with estate of Late Ayub Mehoob Khan and upon such account being handed over to pay to the Plaintiffs such amount as are found payable by them on the basis of willful default.

(ii) The share of Defendant Nos.[1] to 4 be impounded and the same be made available to the Plaintiffs for satisfying the Plaintiffs share in the estate.”

14. It is at once seen that both reliefs claimed by these Plaintiffs in the City Civil Court are fully incorporated in the High Court Suit. The cause of action in the High Court Suit is arguably set out in paragraph 55 to 57 at pages 197 and 198, which read thus: “55. The Plaintiffs submit that in view of the unreasonable and illegal behaviour of Defendant Nos.[1] to 3, it is in the interest of justice that in recognition of the Plaintiffs' right to succession in the estate of the deceased and also with respect to the properties uncovered by the purported Will dated 17th September, 2007 viz. the 2nd and 3rd floors together with terrace the residential building in the Mehboob Studio be partitioned and the Plaintiffs be handed over their portion of the partitioned estate.

56. In the alternative to the above, in the event the Defendant Nos.[1] to 3 submit that 2nd and 3d floors together with terrace of the residential building is incapable of being partitioned, the same may be sold and the Plaintiffs be given a option to purchase such portion or in the proceeds collected from such sale be divided in the proportion of entitlement to succession and the Plaintiffs be given their share therein.

57. The Plaintiffs apprehend that in view of fear and animosity of the Defendant Nos.[1] to 4 against the Plaintiffs, the Defendants would attempt to take such steps as to prejudice the right, title and interest and claim of the Plaintiffs in the real estate property i.e. 2nd and 3rd floors together with terrace of the building in the residential portion of the Mehboob Studio. In view therefore, pending the hearing and final disposal of the suit the Defendant Nos.[1] to 4 be restrained by an order and injunction from in any manner alienating encumbering or dealing the portion of the 2nd and 3nd floors together with terrace of the residential building in the Mehboob Studio.”

15. As we have noted, the City Civil Court suit proceeds on the basis that Afzal and Aslam knew that they were entitled to reliefs other than those that they sought in that suit. That Plaint also contains an assertion that Order II Rule 2 leave was necessary and that the Plaintiffs would be seeking it. What actually happened was that after they filed the present subsequent suit in the High Court, Afzal and Aslam went back to the City Civil Court and made an oral application for leave under Order II Rule 2. They did so a full two years or more after the institution of the present suit in the High Court. For reasons that do not appear to us to be even remotely compelling, the City Civil Court granted that leave on 9th November 2010. We have every reason to believe that that order was jurisdictionally incompetent, and no such leave could have been granted after the institution of the second or subsequent Suit in this Court.

16. Order II of the CPC reads thus: “1. Frame of suit.—Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

2. Suit to include the whole claim.— (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.—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. (3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may 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 shall not afterwards sue for any relief so omitted. Explanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

17. It is well settled and requires no authority that leave can be granted under Order II Rule 2 at any time before a decree is passed. But it is axiomatic that this leave must be obtained before the subsequent suit is instituted. It cannot be granted after the second Suit is filed, with some sort of retrospective effect. To see it otherwise would be to render Order II Rule 2(2) and (3) entirely redundant and otiose.

18. Mr. Jagtiani’s submission on behalf of the Appellants is as follows. First, he submits that the law in this regard and on the question of interpretation of Order II Rule 2 is not contentious. In Gurbux Singh v Bhooralal,[1] the Supreme Court held in paragraph 6 that (i) a Defendant raising the plea of a bar under Order II Rule 2 must show that the second suit was in respect of the same cause of action as the previous one; (ii) that in respect of that identical cause of action, the Plaintiff was entitled to multiple reliefs; and (iii) that being 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.

19. The other legal proposition that Mr Jagtiani canvasses is that even while granting leave under Order II Rule 2 a Court must be circumspect and must not grant leave just for the asking: Prakash Balaram Nichani v Mohandas Parshuram Ahuja,[2] per AA Sayed J (as he then was). 1 (1964) 7 SCR 831: AIR 1964 SC 1810. 2 2008 SCC OnLine Bom 647: 2009 (2) Mh L J 475.

20. As to the proposition that leave can be sought at any time before a decree is passed, reference is made to the decision of a Division Bench of this Court in Canning Mitra Phoenix Ltd v M/s Popular Constructions & Anr.[3]

21. Finally, Mr Jagtiani submits that the provisions of Order II Rule 2 are mandatory. This has been so held by a learned Single Judge of this Court in SNP Shipping Services Pvt Ltd v World Tanker Carrier Corporation & Anr.[4] In that decision, SS Nijjar J (as he then was) said that a plaintiff is duty bound to claim the entirety of the relief possible. The wording of Order II Rule 2 is mandatory. The whole claim must be included. If there is an omission to sue, the subsequent suit cannot be brought without leave obtained in the first Suit.

22. It as on this point that Mr Patil joins the issue. His contention that no leave under Order II Rule 2 was necessary for the High Court Suit because the City Civil Court was not jurisdictionally competent to grant the relief that was sought in the High Court Suit.

23. Mr Patil for the Plaintiffs submits that if the cause of action is distinct, then no leave is necessary: P Vijaykumar & Ors v VC Gopalkrishnan;5 Deva Ram & Anr v Ishwar Chand & Anr.[6] The 3 1994 SCC OnLine Bom 39: (1994) 1 Mh L J 812. 4 1999 SCC OnLine Bom 584: 2000 (2) Mh L J 570. 5 1997 SCC OnLine Bom 41: AIR 1998 Bom 127.

24. As to the identity of the causes of action, there is absolutely manner of doubt. We have extracted the relevant portions above. In addition, there is the order of the learned Single Judge of this Court AS Oka J (as he then was) of 25th November 2008 in the Plaintiff’s Notice of Motion No. 3384 of 2008. While rejecting interim relief, the learned Single Judge observed that the causes of action in the two suits were identical. We do not think that the observations can be brushed aside simply by saying that they are prima facie observations at an interim stage. Even if so, it is nonetheless a fair reading of the material, and now, in Division Bench at a final disposal of the appeal, we endorse that view.

25. The next argument Mr Patil makes is that the Plaintiffs applied to the City Civil Court by way of abundant caution. That submission has only to be stated to be rejected. Courts do not pass orders by way of abundant caution. Further, as we have seen even in the City Civil Court, the Plaintiffs themselves expressly recognized that leave under Order II Rule 2 was indeed and in fact necessary. Moreover, before the learned Single Judge, no such argument seems to have been taken; or, if it was, there is no finding returned on it that no leave was necessary.

26. The questions to be posed are that (i) if no leave was in fact necessary, why was it that the Plaintiffs thought it fit or necessary to include an averment in the City Civil Court Plaint that leave under Order II Rule 2 would be obtained and sought while another Suit was being filed for the balance leaves? And (ii) Why did the Plaintiffs actually apply for and obtain that the relief if it was, as they say, unnecessary?

27. The other startling fact that stares one in the face is that leave was obtained by the Plaintiffs in November 2010, a good two years after they filed the second suit, i.e., the present High Court Suit.

28. Mr Jagtiani is correct in saying that this is nothing but an attempt at forum shopping. The fullness of relief was available to the Plaintiffs in the High Court suit and in fact is sought in the High Court suit as it stands today. Instead of filing that Suit, what is it the Plaintiffs did? They filed a suit for simple declaration about Ayub’s Will and sought an injunction in the City Civil Court and obtained an ad-interim injunction ex parte. After that order was set aside in appeal, the Plaintiffs never applied for interim relief. Even more astonishing is the fact that the Plaintiffs then withdrew the City Civil Court suit but claiming some liberty to appeal. Obviously, the intention was to break up the reliefs.

29. There is little point in urging that the City Civil Court was not jurisdictionally competent to grant the relief in administration. For there are other reliefs sought in the High Court Suit which the City Civil Court might well have been able to grant, and could have been asked to grant within jurisdiction, but for which also no leave under Order II Rule 2 was ever claimed. We believe Mr Patil is oversimplifying matters when he says that the City Civil Court could never have granted relief in administration of the estate. That is true. It is also true that a suit simpliciter for declaration and injunction would not have been jurisdictionally competent in this court but would have had to be filed in the City Civil Court. In the High Court suit, it is not only administration that is sought. There is a relief sought in respect of the Will. There are declarations sought in respect of the shares. There is a declaration sought in regard to shares in the estate. There is a declaration sought in regard to certificate of marriage of Ayub and Farida. There are declarations sought in regard to the adoption of Arafat. There is an injunction sought in respect of Arafat. It is not shown to us why all these reliefs sought in the High Court Suit were beyond the jurisdiction of the City Civil Court Suit. It is therefore misleading and inaccurate to say that the High Court Suit is only for administration, a relief that the City Civil Court could never have granted.

30. The learned Single Judge in our view appears to have overlooked this aspect of the matter. Indeed, while the learned Single Judge correctly said that it is necessary to explore the nature of cause of action in the two suits, he concluded that this endeavour and analysis of the cause of action could only be done at the stage of trial of the Suit. It is this finding that we believe is entirely incorrect in law and unsustainable. By that measure of reasoning, every single application under, say, Order VII Rule 11(a) of the CPC would have to be dismissed for the asking; for it could only be decided at trial. A cause of action, it is well settled, is to be assessed on the basis of the pleadings in the plaint and the documents annexed to the plaint. No amount of evidence or material produced at trial can conjure up a cause of action that does not exist and is not pleaded.

31. We believe the learned Single Judge was materially in error and took a view that is not possible or tenable in law. The Notice of Motion by Defendants Nos.1, 2 and 3 had to be allowed. The High Court suit was incompetent for any relief beyond administration without the necessary relief first being obtained under Order II Rule 2 in the City Civil Court suit. A later suit on the same cause of action for relief that could have been sought in the City Civil Court was not maintainable without prior Order II Rule 2 leave. This goes to the root of the matter and whether the later suit could have been filed at all without prior leave. It is not possible to carve up the plaint and dismiss the High Court suit only in part, because all the reliefs are inextricably tied up and intertwined. Even otherwise, every court must frown upon such brazen attempts at forum-shopping and attempts to steal restrictive orders on patently incorrect representations, and that too ex parte. This is where the conduct of the Plaintiffs is the most reprehensible. There is no explanation at all anywhere of why the City Civil Court was even necessary, leave alone the utterly specious suggestion that it would have been ‘faster’ to move the City Civil Court ‘in extreme urgency’. The fact remains that the only reason for the City Civil Court suit was to obtain an ex parte ad-interim injunction. When vacated, and though given the liberty to move afresh after notice, the Plaintiffs did nothing to seek that injunction. Instead, they filed this suit — in which relief was, quite correctly, refused by Oka J, as noted above. It is only after this suit was filed that the Plaintiffs, almost as an afterthought, and quite impermissibly in law, sought post-facto Order II Rule 2 leave, i.e., after the second, later suit was filed. That rendered the second suit, based on an identical cause of action (a finding now returned twice — once by Oka J, and now by us) for the same relief, but with one added prayer, incompetent. We do not see how the Plaintiffs can seek administration without the other reliefs that are tied hand and foot to the prayer for administration, or how these reliefs can be segregated or dropped while still pursuing administration. Without the declarations sought in the City Civil Court suit (now withdrawn), and also sought in this suit, no relief in administration is possible. Therefore, the present suit, as it stands, must be dismissed.

32. If the Plaintiffs have remedies yet available to them in law, they may pursue those.

33. The Appeal succeeds. The impugned order is set aside. The Motion is made absolute in terms of prayer clause (a).

34. We clarify we have not addressed the merits of the disputes as to the estate, the Will, the company, etc.

35. No costs. (Gauri Godse, J) (G. S. Patel, J)