Code of Civil Procedure, 1908:
Order 2 Rule 2 – Relinquishment of part of claim – Bar under Order 2 Rule 2 – When attracted – On facts, plaintiff–appellant filed suit for injunction restraining defendant–respondent from obstructing their possession – Six months later, plaintiff filed suit for specific performance of agreement to sell the property – Dismissal of earlier suit for injunction for default – Trial court dismissed the suit for specific performance holding that the plaintiff had omitted to sue for specific performance of the agreement although the cause of action had accrued in favour of the plaintiff at the time when the earlier suit for injunction was instituted; and that the plaintiff had failed to seek the leave of the Court, when the suit for injunction was instituted, to file a subsequent suit on the same cause of action seeking performance – Concurrent findings by the courts below that the suit is barred under order 2 rule 2 – Interference with – Held: In order to attract the applicability of the bar enunciated under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arisen to the plaintiff when enforcement of the first claim was sought before the Court – In the instant case, the earlier suit for injunction contained a recital of the agreement to sell; the price fixed; the payment of earnest money; the demand for performance and the failure of the defendant to perform the contract – Indeed, the plaintiff also asserted that she was going to institute a suit for specific performance of the agreement – Cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract – There was a complete identity of the cause of action between the earlier suit and the cause of action for the subsequent suit – This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted, however the plaintiff omitted to sue for specific performance – Having omitted the claim for relief without the leave of the court, the bar under Order 2 Rule 2(3) would stand attracted.
Order 2 Rule 2(1) – Principle under – Held: Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation – Hence, a plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim – However, it is open to the plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the court – Plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished – Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs – However, a plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted – Leave of the Court will obviate the consequence which arises under Order 2 Rule 2(3).
Disposing of the appeals, the Court
HELD: 1.1 Order 2 Rule 2(1) CPC is premised on the foundation that the whole of the claim which a plaintiff CPC is entitled to make in respect of a cause of action must be included. However, it is open to the plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the Court. Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation. Hence, a plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim. A plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2). Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises under Order
2 Rule 2(3). In the absence of leave being sought and granted, a plaintiff who has omitted to sue for any of the reliefs to which they were entitled to sue in respect of the same cause of action would be barred from subsequently suing for the relief which has been omitted in the first instance. But equally, it is necessary to note that Order 2 Rule 2(2) does not postulate the grant of leave. In other words, a plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished. [Para 11][1137-A-E]
1.2 In order to attract the applicability of the bar enunciated under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arisen to the plaintiff when enforcement of the first claim was sought before the Court. [Para 12][1138-C]
1.3 In the instant case, the earlier suit for injunction was instituted on 30 October 1996. Paragraph 2 of the plaint in the suit for injunction contained a recital of the agreement to sell; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the defendant to perform the contract. Indeed, the plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated
26 October 1995. Under the agreement dated 26 October 1995, time for completion of the sale was reserved until 25 October 1996. Notice of performance was issued on 11 October 1996 to which the defendant had replied on 13 October 1996. The cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract. On 30 October 1996 when the suit for injunction was instituted, the plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit and the cause of action for the subsequent suit. Yet, as the record indicates, the plaintiff omitted to sue for specific performance. This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted. [Para 13][1139-F-H; 1140-A-C]
1.4 The first appellate court, in the judgment which it delivered upon remand took note of the fact that the defendant had by its application prayed for summoning the original record of the earlier suit for injunction for proving the plaint. The plaintiff opposed that plea with the assertion that a certified copy of the document could be placed on record instead of summoning the original record. The Civil Judge, Senior Division, accordingly rejected the application on the ground that since the certified copy was filed on the record, it was unnecessary to call for the original record. The defendant had moved another application in the nature of a notice to admit the certified copy of plaint in the earlier suit. This came to be allowed by the trial court. The first appellate court noted that there was no objection from the plaintiff whereupon the certified copy of the plaint was marked as Exhibit. In this background, the first appellate court was clearly justified in coming to the conclusion that this is not a case where the plaintiff was deprived of an opportunity to explain the pleadings in the earlier suit. The finding that there was no prejudice to the plaintiff cannot be faulted. The parties were all along aware of the pleadings, the nature of the objection to the maintainability of the subsequent suit on the ground of the bar under Order 2 Rule
2 and the fact that the plaint in the earlier suit was brought on the record. Indeed, it was at the behest of the plaintiff that a certified copy of the plaint in the earlier suit was allowed to be brought on the record and marked as Exhibit 137. In the circumstances, the bar under Order 2 Rule 2 is attracted. The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the plaintiff that it was in pursuance of the agreement to sell dated 26 October 1995 that he had been placed in possession of the property. Yet, without seeking the leave of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, the finding arrived at by all the three courts that the subsequent suit filed is barred under Order 2 Rule 2 does not warrant any interference in this appeal. [Para 15][1141-C-H; 1142-A-B]
1.5 Admittedly, the plaintiff has paid over an amount of Rs 1,50,000 to the defendant at the time of execution of the agreement on 26 October 1995. Apart from this, the plaintiff deposited the balance of the consideration of Rs 30,000 before the first appellate court on 3 February 2012. The amount which has been deposited by the plaintiff with the defendant must be directed to refunded together with interest at the rate of nine per cent per annum. Apart from this, the plaintiff would be entitled to a refund of Rs 30,000 which was deposited with the trial court on 3 February 2012 together with accrued interest, if any, thereon. In the event that the defendant fails to refund the said amount within a period of two months from the date of receipt of a certified copy of this order, it would be open to the plaintiff to move this Court for appropriate directions. The directions are issued in exercise of the jurisdiction under Article 142, maintaining the judgment of the High Court. [Para 17, 18][1142-C-F]
2. As regards, C.A. No. 9066 of 2019 (SLP(C)No. 122210/2017), it is directed that the defendant shall refund to the plaintiff the amount of Rs 1,40,000 together with interest at the rate of nine per cent per annum within two months from the date of receipt of a certified copy. The plaintiff is also entitled to refund of an amount of Rs 30,000 deposited in the trial court together with accrued interest, if any, thereon. The plaintiff would be at liberty to apply before this Court for appropriate directions if the amount is not paid by the defendant within a period of two months from today. [Para 19][1142-G-H; 1143-A-B]
Gurbux Singh v. Bhooralal AIR (1964) SC 1810 :
[1964] 7 SCR 831 – Distinguished.
Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013) 1 SCC 625 : [2012] 7 SCR 933; Pramod Kumar v. Zalak Singh (2019) 6 SCC 621; Mohd. Khalil Khan v. Mahbub Ali Mian (1948) SCC onLine PC 44 (1947–48) 75 IA 121 – 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.
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