Sucha Singh Sodhi (D) Thr. Lrs. vs Baldev Raj Walia & Anr.

1.2 Order 2 Rule 2(1) of the Code provides that every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action. Liberty is, however, granted to the plaintiff to relinquish any portion of his claim with a view to bring the suit within the jurisdiction of any Court. It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit on the basis of a cause of action pleaded in the plaint, he is under a legal obligation to include and claim all the reliefs against the defendant, which have accrued to him on the cause of action pleaded by him in his plaint. Order 2 Rule 2(1) of the Code enables the plaintiff to relinquish any portion of his relief with a view to bring the suit within the jurisdiction of any Court. Order 2 Rule 2(2) of the Code, however, provides that where a plaintiff omits to sue or intentionally relinquishes, any portion of his claim/relief in his suit, then in such event, he shall not be allowed afterwards to sue in respect of the claim/relief so omitted or/and relinquished by him in his suit. In other words Rule 2(2) does not permit the plaintiff to file second suit to claim the omitted or/and relinquished relief. [Paras 24-26] [331F-H; 332-A-C]

1.3 The sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff. [Para 28] [332-D]

1.4 The original plaintiff could claim the relief of specific performance of agreement against the respondents/defendants in addition to his claim of permanent injunction in the previously instituted suit. The plaintiff could not claim the relief of specific performance of agreement against the defendants along with the relief of permanent injunction in the previous suit for the following reasons. First, the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa. In other words, a plaintiff cannot claim a relief of specific performance of agreement against the defendant on a cause of action on which he has claimed a relief of permanent injunction. Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff ’s possession over the suit premises accrues when defendant No.1 threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1 (c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff. On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date. Third, when both the reliefs/claims namely, Permanent Injunction and Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, it is not possible to claim both the reliefs together on one cause of action. The suit filed by the original plaintiff for specific performance of agreement against the respondents (defendants) is not barred by Order 2 Rule 2 and is held maintainable for being tried on merits. [Para 29-35, 37] [332-F-H; 333-A-E, H]

1.5 Reading of the statement of the original plaintiff that he wants to withdraw the suit because he wants to file appropriate proceedings before the competent forum in relation to the subject matter of the suit coupled with the permission granted by the court to withdraw the suit satisfies the requirement of Order 23 Rule 1 (3) of CPC. It certainly enabled the plaintiff to file a fresh suit, namely, the civil suit for claiming specific performance of the agreement against the defendants. The court was entitled to take into consideration the statement made by the original plaintiff for withdrawing the suit and filing it afresh and his statement could be made a part of the order for granting permission to withdraw the civil suit and file a fresh suit. [Para 43] [335-D-E] & ANR.

1.6 The reasoning and the conclusion arrived at by the trial court and the High Court which wrongly allowed the application filed by respondent No.2 (defendant No.2) under Order 7 Rule 11 CPC is concurred with and in consequence, the appellants’ (plaintiffs’) suit is dismissed as being barred by the provisions of Order 2 Rule 2 CPC. The impugned judgment is set aside. The application filed by respondent No.2 under Order 7 Rule 11 CPC is dismissed. The civil suit filed by the appellants against the respondents is held maintainable and is restored to its original file for being tried on merits. [Paras 46-48] [335-H; 336-A-C]

Rathnavathi & Another v. Kavita Ganashamdas (2015)

5 SCC 223; Gurinderpal v. Jagmittar Singh (2004) 11 SCC 219 – relied on.