Order 2 Rule 2- A Bar to Splitting of Evil
It is believed that:
Litigation is the pursuit of practical ends, not a game of chess.
Yet, sometimes, filing a lawsuit remains the only effective route to refute the allegations and repair the damage caused to a personby breach of his legal right. A Suit, is a proceeding by a party or parties against other/s in the civil court of law.
The archaic term suit in law is found in only a small number of laws still in effect today. The term "suit" is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant's actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff's complaint by filing a written statement to all the averments contained in the plaint.
If the plaintiff is successful, judgment is in the plaintiff's favour, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws.
The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908.
A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case.
Thus, the same needs to have the exact details of relief, and grievance for which the plaintiff is suing the defendant. The filing of a Plaint is considered a stepping stone for the institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyze the Plaint, and decide whether it is fit to be proceeded further or not.
Order 2 of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim, as envisaged under Order 2 Rule 2, and must also be in complete compliance with the provisions of Order 2.
Order 2 Rule 2 of the code of Civil Procedure, 1908, reads:
2. Suit to include the whole claim:
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.
The provisions of Order 2 Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order 2 Rule 2 is also to avoid multiplicity of litigation.
The Rule postulated under Order 2 Rule 2 does not mandate that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. In fact, what the rule lays down is that where there is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to bring separate suits in respect of those parts.
The purpose of Order 2 Rule 2 of the Code is manifold. It is to warrant that no defendant is sued and made to contest twice in respect to the same cause of action. It is also to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.
The effect of Order 2 Rule 2 of the Code is to create a bar for the plaintiff who had earlier claimed particular relieffor a breach of his rights, from filing a second suit,with a view to claim other relief as not claimed earlier, based on the same cause of action. It does not however bar a second suit based on a different and diverse cause of action.
This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy.
The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by some subsequent and independent proceedings.
Unless the defendant pleads a bar of under Order 2 Rule 2 of the Code, and an issue is framed on that bar to the suit, the court cannot scrutinize or discard a suit on that ground. The pleadings in the former suit should be evaluated by the court, and both the parties to the lis should have a respective opportunity to demonstrate that the second suit is based on the same or a different cause of action. It may be noted that wherein no objection was ever taken by the defendant in the written statement,claiming that the suit isbarred by Order 2 Rule 2 of the Code, and in the absence of any such issue, the same shall not become a cause for rejection of the suit.
While explaining the concept of Order 2 Rule 2, the Supreme Court in the case of Deva Ram Vs. Ishwar Chand 1996 AIR (SC) 378 has held that:
"12 ....a bare perusal of the above provisions would indicate that if a Plaintiff is entitled to several reliefs against the Defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the Plaintiff has to place all his claims before the Court in one suit as Order II, Rule 2 is based on the cardinal principle that the Defendant should not be vexed twice for the same cause.
In Sidramappa Vs. Rajashetty and Ors. 1970 AIR SC 1059, it was held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2, CPC.
In a larger bench judgment of Gurbux Singh Vs. Bhura Lal 1964 AIR SC 1810, it was observed:
"In order that a plea of a bar under Order 2 Rule 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 which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar……."
Thus, to constitute a bar under Order 2 Rule 2 of CPC from institution of a fresh suit, it must be established that the second suit is based upon the same cause of action, as of the earlier suit.
The term "Cause of Action" refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a Cause of Action a Civil Suit cannot arise.
A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a 'statement of claim' in English law, or a 'plaint' in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908.
However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, "cause of action" suggests any violation of a legal right that must be produced in favour of the plaintiff to substantiate his claim. "Cause of action" also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
In Om Prakash Srivastava v. Union of India and Anr.2006 6 SCC 207, it was held by the Supreme Court that:
"Cause of action" means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself.
Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court’s judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of "cause of action."
In Swamy Atmanand V. Sri Ramakrishna Tapovanam 2005(10)SCC51the Supreme Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"
The term Cause of Action is though mentioned but not defined anywhere in the Civil Procedure Code, 1908.To pursue a cause of action, a plaintiff must plead or allege the requisite facts in the plaint. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Sometimes a situation may arise where the facts or circumstances create Multiple Causes of Action but in order to avoid the subsequent hurdle of Order 2 Rule 2, the plaintiff must place his claim for the entire cause of action and not in parts.
The provisions of Order 2 Rule 2, though based upon an entirely different principle, are often confused with the rule of Res Judicata, as envisaged in section 11 of Code of Civil Procedure, 1908.
Res Judicata, also known as claim preclusion, is the term for "a matter already judged". It is based upon the Latin maxim "Res judicata pro veritate accipitur".
It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties.
The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.
The doctrine of Res Judicata is based upon three legal Maxims:
The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title.
The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding, but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation, and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.
While explaining the concept of Res Judicata and Order 2 Rule 2 the Supreme Court in Alka Gupta Vs Narender Kumar Gupta AIR 2011 SC 860has held that:
"8. ……. The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
9. This Court in Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 held:
"In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out:
Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code.
Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable.
II. The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under Order 2 Rule 2 of the Code was not attracted…."
It may be noted that there may be situations where one overt act may give rise to a multiple legal complication, some instantly and some subsequently. The court in such a situation cannot invoke the provisions of Order 2 Rule 2 so as to reject the case of the plaintiff, if it is established that the subsequent suit is based on a cause of action, which though maybe an off shoot of the same act, but has arisen subsequently.
Yet, there may be a situations arising out of a contract/ agreement for a sale of a property with a stipulated target date, the seller in this case though is bound to sell the property to the buyer on a particular fixed date, but in order to avoid his contractual obligations, may start negotiating about the same with some third party for any reason. In such a situation, the buyer plaintiff may file a suit for permanent injunction thinking that his claim for specific performance of a contract is premature. In such a situation though both the suits arise out of the same legal contract yet both are based ona claim of different reliefs.
The Supreme Court in Sucha Singh Sondhi(D) Thr. Lrs V.Baldev Raj Walia 2018(2)RCR (Civil) 782 has held that since the cause of action for a suit for permanent injunction filed by the plaintiff restraining the defendants from interfering in his possession is different from claiming specific performance, thus the bar of Order 2 Rule 2 is not attracted. Similar view was taken again in Rathnavathi and Another V. Kavita Ganashamdas 2015(2) SCC 736.
It was further held by the Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. 2012 RCR (CIVIL) 372 that: -
"14. ………that on the dates when C.S. Nos. 831 and 833 of 2005 were instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005.
In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance alongwith the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court.
15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in C.S. Nos. 831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27.7.2005 had not elapsed.
According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the legal notice dated 24.2.2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court.
We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as "the question of a suit being premature does not go to the root of the jurisdiction of the Court" as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India, 2005(1) R.C.R.(Rent) 357: 2005(2) R.C.R. (Civil) 124 : 2005(4) SCC 315.
In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless:
there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event".
The Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts.
16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R. Vimalchand and M. Ratanchand v. Ramalingam, T. Srinivasalu & T. Venkatesaperumal (supra) holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code would be applicable only when the first suit is disposed of.
As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion.
However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 of the Civil Procedure Code as already discussed by us, namely, that Order 2 Rule 2 of the Civil Procedure Code seeks to avoid multiplicity of litigations on same cause of action.
If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 22, Rule 2 of the Civil Procedure Code will apply to both the aforesaid situations.
Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram, (1894) ILR 16 Allahabad 165 and by the Bombay High Court in Krishnaji v. Raghunath, AIR 1954 Bombay 125."
Further in V. Kalyanswamy (D) By Lrs. & Anr. Vs. L. Bakthavatsalam (D) By Lrs. & Ors. 2020(3) RCR (CIVIL) 404, it was again held by the Supreme Court that:
"…..Order 2, Rule 2 of the CPC has been a subject matter of a large number of decisions of this Court. Order 2, Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim.
Then, he is debarred from suing in respect of the portion so omitted or relinquished. A plaintiff entitled to more than one relief arising from the same cause of action, can do two things. He may sue in respect of all the reliefs arising from the same cause of action in the same suit. He may, if he omits to sue for one or more of the reliefs open to him under the same cause of action, seek leave of the court to sue for all such reliefs, and if the court grants such leave, then, he may institute a suit, though based on the same cause of action in the earlier suit, in a fresh suit.
The effect of not seeking the leave of the court, however, in regard to any of the reliefs, which it was open to him to sue for on the same cause of action, is that, he is barred from suing for any other reliefs so omitted. The difference between Order 2, Rule 2 (2) and Order 2, Rule 2 (3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit.
However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order 2, Rule 2 (1) of the CPC which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order 2, Rule 2 (2) of the CPC.
We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In paragraph 9, it was held as follows:
"9. Order 2, Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2, Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make.
If the plaintiff so acts, Order 2, Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2, Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished.
Such leave of the court is contemplated by Order 2, Rule 2 (3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained.
It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2, Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particularreliefhe had obtained leave of the court in the first suit."
Thus, it is clear from the above judgements that once it is apparent that a breach of contract was well within the knowledge of the plaintiff then merely because he did not file the suit for enforcement of the same thinking the same to be premature, would not give him immunity from the clutches of Order 2 Rule 2 so as to make his suit maintainable.
Though, it is apparent that a suit when barred by the provisions of Order 2 Rule 2 cannot succeed, yet in order to create such a bar it is a must that pleadings of previous suit have to be looked into by the court dealing with the subsequent suit.The said view was taken by the Supreme Court in a larger bench judgement of Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 and later on affirmed inmany subsequent judgements including a division bench judgement of the Punjab and Haryana High Court in Smt. Bhagwan Kaur V. Shri Harinder Pal Singh 1992(1) PLR 643.
In M/s Bengal Waterprood Ltd. v. M/s. Bombay Waterproof Manufacturing Company and another, AIR 1997 Supreme Court 1398(1), it was held by the Supreme Court that to attract the bar under Order 2, Rule 2 CPC the pleadings of first suit should have been brought on record. In the absence of pleadings, no interference can be drawn about such bar.
The bar of Order 2 Rule 2 is based upon the principle of waiver to avoid multiplicity of litigation and is applicable on civil suits. While relying upon its earlier Division Bench Judgment the Himachal Pradesh in Baldev Singh vs Union of India & Ors 2018(1) SimLC 10 held that:
"……. Order II Rule 2 applies also to writ proceedings. The left-out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceeding and only in one proceedings. {See the decision of the Supreme Court In Commissioner of Income tax vs. T.P. Kumaran, 1996(1) SCC 561}.
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
25. In view of the above discussion, even though the petition is not barred by the principles laid down in Order 23 Rule 1 of the Code, yet the petition is barred by the principles as contained under Order 2 Rule 2 of the Code."
However, in a very recent judgement of the Supreme Court in Brahma Singh vs Union Of India 2020 ALL SCR 634, it was held that: -
"……In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others1 as follows:
1 AIR 1962 SC 1334 12. …"The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulab chand Chhotalal Parikh v. State of Gujarat2 in relation to Order II Rule 2 held as follows:
"23. …By its very language, these provisions do not apply to the contents of a petition and consequently do not apply to the contents of a subsequent suit…"
Thus, the cumulative effect of the above discussion is that the effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It is dehors the evil of splitting up claims, as well as remedies and, thus, ensures that where a party fails to initiate action in respect of a cause of action for his suit is barred from subsequently raking it up in the subsequently instituted suit.
Though, it does not place a bar on a second suit based on distinct and separate cause of action. It may also be relevant to mention here that under the provisions of Order 2 Rule 2(3) if the plaintiff seeks the permission of the court to file a subsequent suit arising out of the same cause of action and that permission is granted by the court then such a suit shall not be barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908.
Thus, it would be just apt to conclude by saying that"the volume of the law suit will not increase the validity of the argument contained in it".
Written By: Avnish Mittal, Advocate, The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only
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Litigation is the pursuit of practical ends, not a game of chess.
Yet, sometimes, filing a lawsuit remains the only effective route to refute the allegations and repair the damage caused to a personby breach of his legal right. A Suit, is a proceeding by a party or parties against other/s in the civil court of law.
The archaic term suit in law is found in only a small number of laws still in effect today. The term "suit" is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant's actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff's complaint by filing a written statement to all the averments contained in the plaint.
If the plaintiff is successful, judgment is in the plaintiff's favour, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws.
The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908.
A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case.
Thus, the same needs to have the exact details of relief, and grievance for which the plaintiff is suing the defendant. The filing of a Plaint is considered a stepping stone for the institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyze the Plaint, and decide whether it is fit to be proceeded further or not.
Order 2 of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim, as envisaged under Order 2 Rule 2, and must also be in complete compliance with the provisions of Order 2.
Order 2 Rule 2 of the code of Civil Procedure, 1908, reads:
2. Suit to include the whole claim:
- 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.
- 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.
- 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.
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.
The provisions of Order 2 Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order 2 Rule 2 is also to avoid multiplicity of litigation.
The Rule postulated under Order 2 Rule 2 does not mandate that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. In fact, what the rule lays down is that where there is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to bring separate suits in respect of those parts.
The purpose of Order 2 Rule 2 of the Code is manifold. It is to warrant that no defendant is sued and made to contest twice in respect to the same cause of action. It is also to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.
The effect of Order 2 Rule 2 of the Code is to create a bar for the plaintiff who had earlier claimed particular relieffor a breach of his rights, from filing a second suit,with a view to claim other relief as not claimed earlier, based on the same cause of action. It does not however bar a second suit based on a different and diverse cause of action.
This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy.
The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by some subsequent and independent proceedings.
Unless the defendant pleads a bar of under Order 2 Rule 2 of the Code, and an issue is framed on that bar to the suit, the court cannot scrutinize or discard a suit on that ground. The pleadings in the former suit should be evaluated by the court, and both the parties to the lis should have a respective opportunity to demonstrate that the second suit is based on the same or a different cause of action. It may be noted that wherein no objection was ever taken by the defendant in the written statement,claiming that the suit isbarred by Order 2 Rule 2 of the Code, and in the absence of any such issue, the same shall not become a cause for rejection of the suit.
While explaining the concept of Order 2 Rule 2, the Supreme Court in the case of Deva Ram Vs. Ishwar Chand 1996 AIR (SC) 378 has held that:
"12 ....a bare perusal of the above provisions would indicate that if a Plaintiff is entitled to several reliefs against the Defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the Plaintiff has to place all his claims before the Court in one suit as Order II, Rule 2 is based on the cardinal principle that the Defendant should not be vexed twice for the same cause.
In Sidramappa Vs. Rajashetty and Ors. 1970 AIR SC 1059, it was held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2, CPC.
In a larger bench judgment of Gurbux Singh Vs. Bhura Lal 1964 AIR SC 1810, it was observed:
"In order that a plea of a bar under Order 2 Rule 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 which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar……."
Thus, to constitute a bar under Order 2 Rule 2 of CPC from institution of a fresh suit, it must be established that the second suit is based upon the same cause of action, as of the earlier suit.
The term "Cause of Action" refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a Cause of Action a Civil Suit cannot arise.
A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a 'statement of claim' in English law, or a 'plaint' in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908.
However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, "cause of action" suggests any violation of a legal right that must be produced in favour of the plaintiff to substantiate his claim. "Cause of action" also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
In Om Prakash Srivastava v. Union of India and Anr.2006 6 SCC 207, it was held by the Supreme Court that:
"Cause of action" means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself.
Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court’s judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of "cause of action."
In Swamy Atmanand V. Sri Ramakrishna Tapovanam 2005(10)SCC51the Supreme Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"
The term Cause of Action is though mentioned but not defined anywhere in the Civil Procedure Code, 1908.To pursue a cause of action, a plaintiff must plead or allege the requisite facts in the plaint. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Sometimes a situation may arise where the facts or circumstances create Multiple Causes of Action but in order to avoid the subsequent hurdle of Order 2 Rule 2, the plaintiff must place his claim for the entire cause of action and not in parts.
The provisions of Order 2 Rule 2, though based upon an entirely different principle, are often confused with the rule of Res Judicata, as envisaged in section 11 of Code of Civil Procedure, 1908.
Res Judicata, also known as claim preclusion, is the term for "a matter already judged". It is based upon the Latin maxim "Res judicata pro veritate accipitur".
It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties.
The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.
The doctrine of Res Judicata is based upon three legal Maxims:
- Nemo debet bis vexari pro eadem causa - no man should be tried twice for the same cause;
- Interest rei publicae ut sit finis litium - it is in the interest of the State that there should be an end to a litigation;
- Re judicata pro veritate occipitur - a judicial decision must be accepted as correct.
The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title.
The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding, but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation, and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.
While explaining the concept of Res Judicata and Order 2 Rule 2 the Supreme Court in Alka Gupta Vs Narender Kumar Gupta AIR 2011 SC 860has held that:
"8. ……. The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
9. This Court in Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 held:
"In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out:
- that the second suit was in respect of the same cause of action as that on which the previous suit was based;
- that in respect of that cause of action the plaintiff was entitled to more than one relief;
- 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.
Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code.
Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable.
II. The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under Order 2 Rule 2 of the Code was not attracted…."
It may be noted that there may be situations where one overt act may give rise to a multiple legal complication, some instantly and some subsequently. The court in such a situation cannot invoke the provisions of Order 2 Rule 2 so as to reject the case of the plaintiff, if it is established that the subsequent suit is based on a cause of action, which though maybe an off shoot of the same act, but has arisen subsequently.
Yet, there may be a situations arising out of a contract/ agreement for a sale of a property with a stipulated target date, the seller in this case though is bound to sell the property to the buyer on a particular fixed date, but in order to avoid his contractual obligations, may start negotiating about the same with some third party for any reason. In such a situation, the buyer plaintiff may file a suit for permanent injunction thinking that his claim for specific performance of a contract is premature. In such a situation though both the suits arise out of the same legal contract yet both are based ona claim of different reliefs.
The Supreme Court in Sucha Singh Sondhi(D) Thr. Lrs V.Baldev Raj Walia 2018(2)RCR (Civil) 782 has held that since the cause of action for a suit for permanent injunction filed by the plaintiff restraining the defendants from interfering in his possession is different from claiming specific performance, thus the bar of Order 2 Rule 2 is not attracted. Similar view was taken again in Rathnavathi and Another V. Kavita Ganashamdas 2015(2) SCC 736.
It was further held by the Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. 2012 RCR (CIVIL) 372 that: -
"14. ………that on the dates when C.S. Nos. 831 and 833 of 2005 were instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005.
In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance alongwith the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court.
15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in C.S. Nos. 831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27.7.2005 had not elapsed.
According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the legal notice dated 24.2.2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court.
We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as "the question of a suit being premature does not go to the root of the jurisdiction of the Court" as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India, 2005(1) R.C.R.(Rent) 357: 2005(2) R.C.R. (Civil) 124 : 2005(4) SCC 315.
In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless:
there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event".
The Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts.
16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R. Vimalchand and M. Ratanchand v. Ramalingam, T. Srinivasalu & T. Venkatesaperumal (supra) holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code would be applicable only when the first suit is disposed of.
As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion.
However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 of the Civil Procedure Code as already discussed by us, namely, that Order 2 Rule 2 of the Civil Procedure Code seeks to avoid multiplicity of litigations on same cause of action.
If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 22, Rule 2 of the Civil Procedure Code will apply to both the aforesaid situations.
Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram, (1894) ILR 16 Allahabad 165 and by the Bombay High Court in Krishnaji v. Raghunath, AIR 1954 Bombay 125."
Further in V. Kalyanswamy (D) By Lrs. & Anr. Vs. L. Bakthavatsalam (D) By Lrs. & Ors. 2020(3) RCR (CIVIL) 404, it was again held by the Supreme Court that:
"…..Order 2, Rule 2 of the CPC has been a subject matter of a large number of decisions of this Court. Order 2, Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim.
Then, he is debarred from suing in respect of the portion so omitted or relinquished. A plaintiff entitled to more than one relief arising from the same cause of action, can do two things. He may sue in respect of all the reliefs arising from the same cause of action in the same suit. He may, if he omits to sue for one or more of the reliefs open to him under the same cause of action, seek leave of the court to sue for all such reliefs, and if the court grants such leave, then, he may institute a suit, though based on the same cause of action in the earlier suit, in a fresh suit.
The effect of not seeking the leave of the court, however, in regard to any of the reliefs, which it was open to him to sue for on the same cause of action, is that, he is barred from suing for any other reliefs so omitted. The difference between Order 2, Rule 2 (2) and Order 2, Rule 2 (3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit.
However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order 2, Rule 2 (1) of the CPC which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order 2, Rule 2 (2) of the CPC.
We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In paragraph 9, it was held as follows:
"9. Order 2, Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2, Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make.
If the plaintiff so acts, Order 2, Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2, Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished.
Such leave of the court is contemplated by Order 2, Rule 2 (3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained.
It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2, Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particularreliefhe had obtained leave of the court in the first suit."
Thus, it is clear from the above judgements that once it is apparent that a breach of contract was well within the knowledge of the plaintiff then merely because he did not file the suit for enforcement of the same thinking the same to be premature, would not give him immunity from the clutches of Order 2 Rule 2 so as to make his suit maintainable.
Though, it is apparent that a suit when barred by the provisions of Order 2 Rule 2 cannot succeed, yet in order to create such a bar it is a must that pleadings of previous suit have to be looked into by the court dealing with the subsequent suit.The said view was taken by the Supreme Court in a larger bench judgement of Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 and later on affirmed inmany subsequent judgements including a division bench judgement of the Punjab and Haryana High Court in Smt. Bhagwan Kaur V. Shri Harinder Pal Singh 1992(1) PLR 643.
In M/s Bengal Waterprood Ltd. v. M/s. Bombay Waterproof Manufacturing Company and another, AIR 1997 Supreme Court 1398(1), it was held by the Supreme Court that to attract the bar under Order 2, Rule 2 CPC the pleadings of first suit should have been brought on record. In the absence of pleadings, no interference can be drawn about such bar.
The bar of Order 2 Rule 2 is based upon the principle of waiver to avoid multiplicity of litigation and is applicable on civil suits. While relying upon its earlier Division Bench Judgment the Himachal Pradesh in Baldev Singh vs Union of India & Ors 2018(1) SimLC 10 held that:
"……. Order II Rule 2 applies also to writ proceedings. The left-out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceeding and only in one proceedings. {See the decision of the Supreme Court In Commissioner of Income tax vs. T.P. Kumaran, 1996(1) SCC 561}.
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
25. In view of the above discussion, even though the petition is not barred by the principles laid down in Order 23 Rule 1 of the Code, yet the petition is barred by the principles as contained under Order 2 Rule 2 of the Code."
However, in a very recent judgement of the Supreme Court in Brahma Singh vs Union Of India 2020 ALL SCR 634, it was held that: -
"……In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others1 as follows:
1 AIR 1962 SC 1334 12. …"The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulab chand Chhotalal Parikh v. State of Gujarat2 in relation to Order II Rule 2 held as follows:
"23. …By its very language, these provisions do not apply to the contents of a petition and consequently do not apply to the contents of a subsequent suit…"
Thus, the cumulative effect of the above discussion is that the effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It is dehors the evil of splitting up claims, as well as remedies and, thus, ensures that where a party fails to initiate action in respect of a cause of action for his suit is barred from subsequently raking it up in the subsequently instituted suit.
Though, it does not place a bar on a second suit based on distinct and separate cause of action. It may also be relevant to mention here that under the provisions of Order 2 Rule 2(3) if the plaintiff seeks the permission of the court to file a subsequent suit arising out of the same cause of action and that permission is granted by the court then such a suit shall not be barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908.
Thus, it would be just apt to conclude by saying that"the volume of the law suit will not increase the validity of the argument contained in it".
Written By: Avnish Mittal, Advocate, The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only
Office: House no 115, Punjab and Haryana High Court. Sector 16 A, Chandigarh -160015.
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