Code of Civil Procedure, 1908 – Ord. II r.2 – Suit to include the whole claim – Relief of permanent injunction sought in a previous suit, thereafter, institution of suit for specific performance – Applicability of Ord. II r.2 – On facts, agreement to sell certain property between respondent no. 1-buyer and respondent no. 2-seller – Multiple failed attempts by the respondent no. 1 to get the sale deed registered – Also respondent no. 1 came to know about the Government Order banning registration of sale deeds in the said village other than the appellant – Appellant along with respondent no. 2 interfering with the peaceful possession and enjoyment of the suit property of the respondent no. 1 – Suit for permanent injunction by the respondent no. 1 – Meanwhile the GO quashed by the High Court – Respondent no. 1’s case that during the first suit only he came to know about the execution of the registered sale deed by respondent no. 2 in favour of the appellant in respect of the said property – Respondent no. 1 then filed the second suit, the suit for specific performance of the agreement for sale, cancellation of the sale deed and permanent injunction – Application by the appellant that the second suit hit by the bar u/Ord. II r.2 – Application allowed and plaint rejected in the second suit – First Appeal thereagainst dismissed – However, the High Court allowed the second appeal and restored the plaint in the second suit, holding that the second suit not hit by the bar u/Ord. II r.2 – Correctness: Held: Bar under the provisions of Ord II r.2 would not stand in the way of the institution of the second suit by the respondent no. 1 – True import of the bar u/Ord. II r.2 must be that it operates to preclude a plaintiff from instituting a second suit, on the same cause of action, for a claim, any portion of a claim, or reliefs, which the plaintiff was entitled to avail at the time of filing of the first suit – Ord. II r.2 do not operate as a bar when the subsequent suit is based on a cause of action different from that on which the first suit was based and that the identity of the causes of action in both the suits must be the material consideration before the court which decide the applicability of this provision to a second suit filed by the plaintiff – There may arise a situation where the plaintiff may be entitled to a relief but such a relief was not available at a certain point in time – Such relief becomes available to him on the happening of a subsequent event, post the institution of the first suit, then the bar u/Ord. II r.2 would not stand in the way of the plaintiff who has instituted a subsequent suit for claiming those reliefs – Occurrence of that subsequent event gives rise to a fresh cause of action to the concerned plaintiff for claiming certain reliefs which he was otherwise prevented from claiming – On facts, mandatory bar was created by a G.O. issued by the State Government which disabled the respondent no. 1 from seeking the remedy which he was otherwise entitled to – When the order quashing the G.O. was passed, the rights of the respondent no.1 crystallized and a relief which was impossible to obtain earlier due to the existence of a State Government imposed ban was now made available to the respondent no.1 – Thus, a new cause of action for obtaining the relief of specific performance directing the respondent no. 2 to execute the sale deed in favour of the respondent no. 1 and for seeking the cancellation of the sale deed entered into between the respondent no. 2 and the appellant had arisen – In the interests of justice, the decisions of the High Court relating to the GO must be held to have given rise to a new cause of action to the respondent no. 1 for the agitating the reliefs in the second suit – It cannot be accepted that the respondent no. 1 was fully aware of the circumstances relating to the ban at the time of entering into the agreement to sell – It is only when the respondent no. 1 approached the revenue authorities on multiple occasions for the execution of the sale deed that the reluctance of the registrar was noticed and writ petition was filed challenging the actions of the registrar, thus, no reason to doubt the bona fides of the respondent no. 1 – It cannot be said that such extraneous matters not set forth in the plaint – Respondent no. 1 indicated in the first plaint that a writ petition instituted by them before the High Court challenging the actions of the registrar is pending and in the second plaint, they averred that the High Court had quashed the G.O. in a public interest litigation and had disposed of their writ petition – Rejecting the plaint in the second suit would result in depriving the respondent no. 1 from claiming the relief of specific performance of the agreement for sale and the cancellation of the sale deed – Reliefs in the subsequent suit founded on a cause of action distinct from that which is the foundation of the former suit – Facts necessary to be proved and the evidence to support the claims in the second suit also different from that of the first suit – Thus, the respondent no. 1 could not have prayed for the reliefs claimed in the subsequent suit at an earlier stage – High Court rightly held that the bar u/Ord II r.2 not applicable and the respondent no. 1 would not be prevented from instituting the second suit, and the plaint in the second suit was restored – Trial court to decide both the suits together on their own merits and in accordance with law, within the stipulated period. [Paras 73, 74, 77-90] Code of Civil Procedure, 1908 – Ord. II r.2 – Suit to include the whole claim – General Principles underlying Ord. II r.2: Held: Object of Ord II r.2 is to prevent the multiplicity of suits – Provision is founded on the principle that a person shall not be vexed twice for one and the same cause – Mandate of Ord. II r. 2 is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit – Phrase “cause of action” mean that “every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court” – While it is acknowledged that the applicability of Ord II r.2 depends on the particular facts and circumstances of each case, a correct and reliable test is to determine whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit – Defendant who takes shelter under the bar imposed by Ord. II r.2(3) must establish that the second suit was in respect of the same cause of action as that on which the previous suit was based; in respect of that cause of action, the plaintiff was entitled to more than one relief; and being thus entitled to more than one relief, the plaintiff, without any leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed – Defendant must also have produced the earlier plaint in evidence in order to establish that there is an identity in the causes of action between both the suits and that there was a deliberate relinquishment of a larger relief on the part of the plaintiff – Since the plea is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. [Para 47]. Code of Civil Procedure, 1908 – Ord. II r.2 – Suit to include the whole claim – Applicability of Ord. II r.2 – Status/Stage of the first suit:
Held: Ord. II r.2 does not impose any restriction on the applicability of the principles therein based on the stage or status of the first suit – No clear requirement that the first suit either be pending or disposed of in order to make a plea of bar u/Ord. II r.2 as regards the second or subsequent suit – Laudable object behind this provision is to prevent the multiplicity of suits and the splitting of claims – Stage at which the first suit is, would not be a material consideration in deciding the applicability of the bar u/Ord. II r.2 – It needs to be looked into, whether the cause of action in both suits is one and the same in substance, and whether the plaintiff is agitating the second suit for claiming a relief which was very well available to him at the time of filing the first suit – Thus, the fact that the first suit is still pending before the concerned court would have no material impact in deciding whether the subsequent suit filed is barred by the principles u/Ord. II r.2. [Paras 48, 49, 51] Code of Civil Procedure, 1908 – Ord. II r.2 – Suit to include the whole claim – Rejection of plaint u/Ord VII r.11(d) – Determination of the applicability of the bar u/Ord II r.2 – Approach to be adopted by the court:
Held: Before rejecting the plaint u/Ord VII r.11(d), the Courts must ensure that the plaint is read as a whole and its entire averments are looked into – Few lines or passages must not be read in isolation – It is imperative that the pleadings are read as a whole for ascertaining the true import of the averments therein – It must be deduced whether the causes of action in both the suits are identical in substance in order to sustain a successful plea u/Ord II r.2 – It would be a reductive approach to only cull out the cause of action paragraphs from the respective plaints and decide that they disclose the same cause of action on mere comparative overview. [Para 56]
Words and phrases – ‘Cause of action’ – Meaning of – Phrase ‘Cause of action for the purpose of Ord II r.2’ – Elucidated. [Paras 37, 39, 40, 44, 45, 47]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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