Code of Civil Procedure, 1908: Order II, Rule 2(1) – Suit to include the whole claim – Two alienations by father of separate areas of the ancestral property, on different dates – Filing of separate suits for setting aside the two sale deeds – First suit dismissed by the trial court – Second suit dismissed by the trial court as also the appellate court on the ground of Order II, rule 2 and constructive res judicata – High Court setting aside the order – On appeal held: Order II, Rule 2(1) provides that a plaintiff is to include the whole of the claim, which he is entitled to make, in respect of the cause of action – However, if a plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished – However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the Court, then a second suit, for a different relief than the one claimed in the earlier suit, can be prayed for – Principle underlying Order II, Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit – On facts, at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II, Rule 2 – At the time of filing of the first suit, late predecessorin-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion of the land – Suits contained virtually identical averments in regard to both the transactions – In such circumstances, it was open to the plaintiff to seek relief in respect of the second sale executed by their predecessor-in-interest – On the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed, the bar under Order II, Rule 2 would apply – Thus, the judgment of the High Court is set aside. Cause of action – Meaning of – Explained.
Allowing the appeal, the Court
HELD: 1.1 Order II, Rule 2(1) of the Code of Civil Procedure, 1908 provides that a plaintiff is to include the whole of the claim, which he is entitled to make, in respect of the cause of action. However, it is open to him to relinquish any portion of the claim. Order II, Rule 2 provides for the consequences of relinquishment of a part of a claim and also the consequences of omitting a part of the claim. It declares that if a plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished. Order II, Rule 2(3), however, deals with the effect of omission to sue for all or any of the reliefs in respect of the same cause of action. The consequences of such omission will be to preclude plaintiff from suing for any relief which is so omitted. The only exception is when he obtains leave of the Court. Thus, in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished. However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the Court, then a second suit, for a different relief than one claimed in the earlier suit, can be prayed for. There are three expressions which are found in Order II, Rule 2. Firstly, there is reference to the word “cause of action”, secondly the word “claim is alluded to” and finally reference is made to “relief”. [Paras 26, 27] [931-H; 932-A-B; 933-C-D]
1.2 The defence set up by the defendants, would be irrelevant to determine what cause of action means. The reliefs, which are sought by the plaintiffs, will not be determinative of what constitutes cause of action. Cause of action as explained by the Privy Council means the media through which the plaintiff seeks to persuade the Court to grant him relief. It could, therefore, be said to be the factual and legal basis or premise upon which the Court is invited by the plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter. [Para 28] [933-E-F]
1.3 The period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed, cannot operate so as to exclude the bar under Order II, Rule 2. The principle underlying Order II, Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II, Rule 2 provides for the principle of repose. If this be the underlying object of Order II, Rule 2, the fact that at the time when the first suit was filed even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II, Rule 2. [Para 35] [937-F-H; 938-A]
1.4 Order VII Rule 1 provides for the particulars to be contained in a plaint. It, inter alia, provides that the facts constituting the cause of action and when it arose, be pleaded. Apparently, the submission of the respondents is having regard to Article 109 of the Limitation Act, the cause of action as provided in Article 109, would commence from the date of the deed being 11.02.1959, and therefore, it has a different period of limitation. It indicates that cause of action, raised in the second suit, is not identical with a cause of action in the first suit. This submission proceeds on a misapprehension as to what constitutes the cause of action. It is the bundle of facts, which if traversed, must be proved. However, as laid down by the Privy Council, it would be understood also to mean the media through which Court’s intervention is sought by the plaintiff. [Para 36] [938-B-D]
1.5 The case of the plaintiffs appears to be that the property is ancestral property. Their late father T was given to wasteful ways and addicted to drink and otherwise. He was given to selling properties. His well-wishers intervened and partition ensued. However, 8.22 acres was kept out of the partition deed. He decided to sell 8.22 acres without there being any legal necessity and without any benefit to the joint family. The first part of the transaction, which consisted of two parts, pertained to sale deed and that was the subject matter of the first suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed which constituted the remaining portion which consisted of the 8.22 acres land. The suits contained virtually identical averments in regard to both the transactions. The first suit was filed in 1963 and the second suit filed in the year 1971. [Para 38] [938-E-G]
1.6 In such circumstances, this is a case where the plaintiff ought to have included relief in the form of setting aside the second sale deed also. This is not a case where the second sale deed had not been executed when the plaintiff instituted the first suit. It was open to the respondent/plaintiff to seek relief in respect of the second sale executed by their predecessor-in-interest and what is more important in favour of the same parties (defendants) who are the appellants. The High Court has proceeded to reason based on Order II, Rule 3. It is open to the plaintiff to combine causes of action. [Para 39, 40] [938-H; 939-A-C]
1.7 The law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II, Rule 2 will not apply. It is also true that Order II, Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But there is an equally important principle that no person shall be vexed twice on the same cause of action. On the same cause of action, the plaintiffs having omitted to sue in respect of the sale deed in question, the bar under Order II, Rule 2 would apply. In view thereof it is not necessary to pronounce on the question relating to constructive res judicata. Thus, the judgment of the High Court is set aside. [Para 41, 42] [939-E-H; 940-A-B] Coffee Board v. Ramesh Exports Private Limited (2014)
6 SCC 424 : [2014] 7 SCR 461 ; A.B.C. Laminart Pvt. Ltd. & Anr. v. A.P. Agencies, Salem (1989) 2 SCC 163 : [1989] 2 SCR 1 ; Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141 : [2010] 11 SCR 756 ; Virgo
Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 ; Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : 1964
SCR 831 ; Union of India v. H.K. Dhruv (2005) 10 SCC 218 ; S. Nazeer Ahmed v. State Bank of Mysore (2007) 11 SCC 75 : [2007] 1 SCR 843 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.