# PRAMOD KUMAR & ANR v. ZALAK SINGH & ORS

- **Citation:** [2019] 7 S.C.R. 919
- **Court:** Supreme Court of India
- **Decided:** 2019-05-10
- **Case number:** Civil Appeal Nos. 1055 of 2019
- **Bench:** Ashok Bhushan, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pramod-kumar-anr-v-zalak-singh-ors-34039
- **Pages:** 22

## Headnote

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
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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

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PRAMOD KUMAR & ANR.
v.
ZALAK SINGH & ORS.
(Civil Appeal Nos. 1055 of 2019)
MAY 10, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
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
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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
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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
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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.
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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.
Case Law Reference
[2014] 7 SCR 461
referred
Para 8
[1989] 2 SCR 1
referred
Para 8
[2010] 11 SCR 756
referred
Para 10, 31
[2012] 7 SCR 933
referred
Para 22
[1964] SCR 831
referred
Para 31
(2005) 10 SCC 218
referred
Para 33
[2007] 1 SCR 843
referred
Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1055
of 2019.
From the Judgment and Order dated 31.08.2012 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal
No. 5 of 1995.
Nikhil Nayyar, Garvesh Kabra, V. R. Munde, Advs. for the
Appellants.
R. K. Borkar, Shirish K. Deshpande, Ishwar Chavlewar, Mohit
Gautam, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. This appeal by special leave is directed against the judgment
and order dated 31.08.2012 passed by the High Court in Second Appeal
No. 5 of 1995. By the impugned judgment, the High Court has set aside
the concurrent findings of the Courts below resulting in dismissal of the
suit filed by the respondents (plaintiffs) on the ground that the suit was
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
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barred by Order II Rule 2 of the Code of Civil Procedure, 1908
(hereinafter referred to 'the CPC') as also constructive res judicata.
The High Court has remanded the matter to the First Appellate Court to
decide on merits.
2. One Tikaram was the husband of respondent No.4 and the
father of respondent Nos. 1 to 3. He was holding 8.22 acres of land in
Khasra No.189 at Village Gondia in his name. On 21.01.1959, he sold
the land to the extent of 3.20 acres out of the total 8.22 acres to the
appellants and thereafter, on 11.02.1959, he sold the remaining portion
of 4.82 acres of land, which was the balance out of 8.22 acres, also to
the appellants. Tikaram passed away on 15.07.1959.
The respondents filed a suit (bearing Civil Suit No. 131 of 1963)
for setting aside the Sale Deed dated 21.01.1959 and for other reliefs.
The allegation made by the respondents in the suit was that the land was
a joint family ancestral property and he had sold it for immoral purposes
and in a manner prejudicial to the interest of joint family. He was addicted
to drink and there was no necessity to sell the property.
3. On 31.01.1969, the Trial Court dismissed the said suit holding
that Tikaram was the owner of the property due to the partition effected
in the year 1957. Hence, he had the right to sell the suit land. The
appellants were bona fide purchasers.
4. Aggrieved by the decree of the Trial Court, the respondents
filed an appeal (bearing Civil Appeal NO. 22 of 1969) on 10.02.1971.
5. The respondents again filed the present suit (bearing Civil Suit
No. 34 of 1971) challenging the Sale Deed dated 11.02.1959 and seeking
other reliefs. It is the said suit which came to be dismissed both by the
Trial Court and the First Appellate Court. The Trial Court answered the
issues including whether the Suit is barred under Order II Rule 2 and
also affected by constructive res judicata. It found that the suit is liable
to be dismissed on the ground of Order II Rule 2 and constructive res
judicata. The dismissal by the Appellate Court was essentially on the
basis of the provisions of Order II Rule 2 of the CPC as also constructive
res judicata on the score that the second alienation dated 11.02.1959
ought to have been the subject matter of the earlier suit. The Appellate
Court, in fact, found that the Trial Court was right in answering the other
points. It is to be noted that the judgment of the Trial Court in the first
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suit came to be reversed in the civil appeal and the same has become
final.
6. The High Court, however, reversing the orders of both the
courts found that Order II Rule 2 will not be a bar. For Order II Rule 2,
the cause of action in the first suit and the cause of action in the second
suit must be identical. In this case, there were two alienations by the
Tikaram giving rise to two cause of actions. It is also found that
constructive res judicata will not apply.
7. We have heard learned counsel for the parties and perused the
record.
8. Learned counsel for the appellants contended that the High
Court has clearly erred in coming to the conclusion that Order II Rule 2
was not a bar. Order II Rule 2 is indeed attracted. He took us through
the pleadings in the two suits and contended that the cause of action in
the second suit is identical with the cause of action in the first suit. As
on the date of the institution of the first suit, the second alienation was
very much available to be impugned and it is not open to the respondents
to split the cause of action in separate suits and seek relief which is
precisely what has been done by the respondents in this case. He relied
upon the judgment of this Court in Coffee Board v. Ramesh Exports
Private Limited1 and A.B.C. Laminart Pvt. Ltd. & Anr. v. A.P. Agencies,
Salem2.
9. Learned counsel for the respondents drew our attention to Order
VII Rule 1. He points out that the cause of action in both the suits are
different. He also drew our attention to Article 109 of the Limitation
Act, 1963, which reads as follows:
109.
10. He would contend that the period of limitation as far as the
second sale deed is different from the period of limitation as far as the
first sale deed is concerned. The period of limitation as far as the second
By a Hindu governed by
Mitakshara law to set aside
his father's alienation of
ancestral property.
Twelve years
When the alienee takes
possession of the property.
1 (2014) 6 SCC 424
2 (1989) 2 SCC 163
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
[K. M. JOSEPH, J.]
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alienation is concerned will expire only on the expiry of 12 years from
the date of taking of possession by the alienee. He further relied on the
judgment of this Court in Alka Gupta v. Narender Gupta3.
11. The first question, which we are called upon to decide, is
whether the High Court was right in holding that the bar, under Order II
Rule 2, will not apply in the facts of this case.
12. Before, we advert to the decisions on the point it would be
profitable to refer to the pleadings in two suits.
13. In Civil Suit No. 131 of 1963, we notice the following pleadings.
The respondents (plaintiffs) are Hindus governed by Mitakshara School
of Law as administered by Benaras School. Tikaram's father died when
Tikaram was a minor. During the minority of Tikaram, the property was
managed by his mother. On becoming major, Tikaram fell into bad and
immoral habits and grew into a drunkard. He was also addicted to other
vices. He indulged in wasteful habits and therefore sold his joint family
ancestral property for immoral purposes and in a manner prejudicial to
the interest of the joint family. On the intervention of relations, a partition
was entered into on 11.01.1957, which was duly registered.
14. At the time of partition, plaintiff No.2 though begotten was
born afterwards on 02.06.1957 and as such he could not and was not
made a party to the above partition. Plaintiff No. 3 was born on
26.08.1959 and therefore he had interest in the suit property. At the
time of partition, in Khasra No. 189 an area of 8.22 acres was not included
in the share of either deceased Tikaram or plaintiff No.1 but was kept
joint thereafter. We may notice the following:
"(g) That in or about the month of September, 1958, plaintiffs
knew that Tikaram wanted to sale their lands and hence they
published a general prohibitory notice in the issue dated 14th
September, 1958 of the Hindu Daily "NAVBHARAT" which has
wide circulation at Gondia and the surrounding area warning public
in general not to accept any transfer of land from deceased
Tikaram. That subsequently the plaintiffs learnt that the defendants
intended to enter into a contract of sale with deceased Tikaram in
respect of the suit land and hence they served the defendants
with a written notice dated 4.1.1959 asking them to desist from
purchasing land mentioned in para 1(e) above.
3 (2010) 10 SCC 141
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3. That, however, despite warning and notices the defendants
purchased a portion of Kh.No. 189 admeasuring 3.20 acres, as
particularly described in the plaintiff map by letters Pa, Pha, Ba,
Bha, Ma and in red colour, for the alleged consideration of
Rs.8,000/- vide registered sale deed dated 21.1.1959."
15. It is the further case that the property was the ancestral joint
family property and the alienation was not one for necessity or for
conferring benefits upon the estate or for payment of antecedent debt.
It is liable to be set aside. Plaintiff Nos. 1 to 3 have interest in the land
by birth and plaintiff No. 4 (the widow of Tikaram) had a share with
them. The payment of consideration is fictitious and it never passed.
Being without consideration, the alienations were not valid and not binding
on the plaintiffs and thus liable to be set aside for this reason. Thereafter,
there were certain further allegations with which we are not concerned.
16. The reliefs sought by the plaintiffs in the plaint were to declare
the sale deed as not binding on the interest of plaintiff No. 4 and for
delivery of possession to her or in the alternative a decree for setting
aside the sale deed dated 21.01.1959 and for delivery of possession to
the plaintiff, enquiry as to mesne profits and for mandatory injunction to
demolish certain constructions.
17. Let us now look at the pleadings in the second suit viz. Civil
Suit No. 34 of 1971.
18. Herein also, the plaintiffs and the defendants are the same. It
is stated inter alia as follows:
The Bhumidhari land Kh. No. 189 area 8.22 acres situated in
village Gondia is the ancestral property of plaintiff Nos. 1, 2 and 3. Plaintiff
No. 4 is the mother of plaintiff Nos. 1 to 3. The plaintiffs are Hindu and
are governed by Mitakshara Law as administered by Benaras School.
The same allegations were raised about Tikaram having fallen into immoral
habits and growing into an incorrigible drunkard and selling joint family
ancestral lands for immoral purposes. It also referred to partition dated
11.01.1957. There were also allegations relating to Kh. No. 189 wherein
8.22 acres of land was not included either in the share of deceased
Tikaram or plaintiff No.1 but was kept joint. It is relevant to extract
para 3 of the second plaint which is to the following effect:-
"That, however, despite warning and notices the defendants
purchased a portion of Kh. NO. 189 from the deceased father of
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
[K. M. JOSEPH, J.]
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the plaintiffs admeasuring 3.20 acres vide sale deed dated
21.01.1959. The plaintiffs have filed C.S. No. 131 of 1963 against
the defendants for setting aside the said sale. The suit having
been dismissed by the trial court the plaintiffs have filed Civil
Appeal No. 22/69 against the said judgment and decree which is
now pending in the Court of the Assistant Judge, at Bhandara
4(a). That Tikaram the deceased father of the plaintiffs again on
11.02.1959 sold an area of 4.82 acres out of suit Kh. No. 189 to
the plaintiffs under the same circumstances stated above and as
described in the plaintiff map by letters Ka, Kha, Ga, Gha, Cha,
Chha, Ja, Ta, Tha, Da, Na and Pa and in red colour, for the alleged
consideration of Rs.4000/- vide registered sale deed dated
11.2.1959 and the same is sought to be set aside in this suit."
19. It is further stated that the land is to be treated as an ancestral
joint family property and the alienation being not one for necessity or for
conferring benefits upon the estate or for payment of antecedent debt
and it is liable to be set aside.
20. Having referred to the pleadings, let us examine what the
High Court has held. The High Court holds that all successive claims,
arising under the same obligation, shall be deemed to constitute one cause
of action. It further finds that the crux of the matter is, there are two
alienations of separate areas of the land on different dates, and although
they are in favour of the same parties, it would give rise to more than
one cause of action. It was further found that by restricting to first suit
to the first alienation, it could not be found that plaintiff has split-up the
claims or split-up the remedies. The execution of the second sale deed
in favour of the same party gives rise to distinctive and separate cause
of action. The High Court further proceeds to refer to the illustrations in
Order II Rule 2 CPC, which reads as follows:
"A lets a house to B at a yearly rent of Rs. 1200. The rent for the
whole of the years 1905, 1906 and 1907 is due and unpaid. A sues
B in 1908 only for the rent due for 1906. A shall not afterwards
sue B for the rent due for 1905 or 1907".
21. Thereafter, the High Court proceeds to take a case where A
owns two houses and he let them to B. A suit is filed in respect of
arrears of rent in respect of one house, though arrears were there in
respect of the other house also. The High Court takes the view that it is
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the choice of the plaintiff either to unite or not to unite both the causes of
action and the second suit would not be barred.
22. In the case of Mohammad Khalil Khan v. Mehbub Ali Mian4,
the earlier suit related to the property at Oudh. The parties belonged to
the Sunni sect and the properties belonged to one Rani Barkatunnissa
who owned properties at Shahjahanpur and Oudh. The first suit did not
include the property at Shahjahanpur. The Court proceeded to uphold
the views taken by the Courts in India and maintained the finding that
second suit, in relation to the property at Shahjahanpur, was barred by
virtue of Order II Rule 2. It would be profitable to refer to paragraphs
45 and 46 as they throw light upon what constitutes cause of action:
"45. Shortly stated O.2, R.2, Civil P.C., enacts that if a plaintiff
fails to sue for the whole of the claim which he is entitled to make
in respect of a cause of action in the first suit, then he is precluded
from suing in a second suit in respect of the portion so omitted. As
pointed out in Moonshee Buzloor Ruheem v. Shumsunnissa
Begum, (1867) 11 M.I.A. 551.
The correct test in all cases of this kind is, whether the claim in
the new suit is, in fact, founded on a cause of action distinct from
that which was the foundation of the former suit....
The object of the rule is clearly to avoid splitting up of claims
and to prevent multiplicity of suits".
46. "every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment of
the Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be proved."
I agree with the definition given by the Master of Rolls of a
cause of action, and that it includes every fact which it would be
necessary to prove, if traversed, in order to enable a plaintiff to
maintain his action.
Now the cause of action has no relation whatever to the defence
which may be set up by the defendant, nor does it depend upon
the character of the relief prayed for by the plaintiff. It refers
entirely to the grounds set out in the plaint as the cause of action,
4 AIR (36) 1949 Privy Council 78
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
[K. M. JOSEPH, J.]
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or, in other words, to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour."
23. The Privy Council proceeded to summarize the principles in
paragraph 61, which reads as follows:
"61. The principles laid down in the cases thus far discussed
may be thus summarized:
(1) The correct test in cases falling under O.2 R.2, is "whether
the claim in the new suit is in fact founded upon a cause of action
distinct from that which was the foundation for the former suit.
(2) The cause of action means every fact which will be necessary
for the plaintiff to prove if traversed in order to support his right to
the judgment.
(3) If the evidence to support the two claims is different, then the
causes of action are also different.
(4) The causes of action in the two suits may be considered to be
the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence
that may be set up by the defendant nor does it depend upon the
character of the relief prayed for by the plaintiff. It refers..... to
the media upon which the plaintiff asks the Court to arrive at a
conclusion in his favour."
24. Still further, in paragraph 63, the Court has proceeded to
conclude as follows:
"63. The plaintiffs' cause of action to recover the properties
consists of those facts which would entitle them to establish their
title to the properties. These facts are the same with respect to
both properties, these being, that Rani Barkatunnissa was the
owner of the properties; that she died on 13th February, 1927, that
she was a Sunni by faith and that they are her heirs under the
Muhammadan law.
Having regard to the conduct of the parties their Lordships
take the view that the course of dealing by the parties in respect
of both properties was the same and the denial of the plaintiffs'
title to the Oudh property and the possession of the Shahjahanpur
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property by the defendants obtained as a result of that denial
formed part of the same transaction. On this question, the learned
Judges of the High court have expressed their opinion in two places
in their judgment as follows:
"In the case before us the trespass on title or slander of title in
the case so far as the Oudh suit was concerned was not distinct
and different either in point of time or in point of character from
the trespass on possession in the case of the Shahjahanpur
property..."
Again, it is stated as follows:
"Here in the present case we find that the two trespasses, one on
the Shahjahanpur property and the other on the Oudh property
were similar in character and formed part of the same transaction
and the evidence to prove the facts which it was necessary for
the plaintiffs to prove... was the same and the bundle of essential
facts was also the same."
25. At this juncture, we may advert to Order II Rule 2, which
reads as follows:
"2. Suit to include the whole claim
(1) 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.
(2) 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.
(3) 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."
26. 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, it is open to him to relinquish any portion of the
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
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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. In a recent judgment of
this Court, the distinction between Order II Rule 2(1) and Order II Rule
2(3) has been succinctly brought out in Virgo Industries (Eng.) (P) Ltd.
v. Venturetech Solutions (P) Ltd.5,. This Court, inter alia, has held as
follows:
"Order 2 Rule 1 CPC 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 CPC 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 makes
it clear that he shall not, afterwards, sue for the part or portion of
the claim that has been omitted or relinquished. 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 clear from a conjoint reading of the
provisions of Order 2 Rules 2(2) and (3)that the aforesaid two
sub-rules of Order 2 Rule 2 contemplate two different situations,
namely, 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
particular relief he had obtained leave of the court in the first suit.
5 (2013) 1 SCC 625
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The object behind the enactment of Order 2 Rules 2(2) and
(3) CPC is not far to seek. The Rule engrafts a laudable principle
that discourages/ prohibits vexing the defendant again and again
by multiple suits except in a situation where one of the several
reliefs, though available to a plaintiff, may not have been claimed
for a good reason. A later suit for such relief is contemplated only
with the leave of the court which leave, naturally, will be granted
upon due satisfaction and for good and sufficient reasons."
27. 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".
28. The defence, which is 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 in
Mohammad Khalil Khan case (supra), 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.
29. In Coffee Board case (supra), the respondent purchased coffee
at the export auctions and exported them to certain countries. He filed
two suits. The Coffee Board had provided for stamps system for exporting
of coffee. Complaint of the plaintiff was that the defendants failed to
supply the stamps but there was delay and it resulted in losses. This is
what the Court held:
"12. The courts in order to determine whether a suit is barred
by Order 2 Rule 2 must examine the cause of action pleaded by
the plaintiff in his plaints filed in the relevant suits (see S. Nazeer
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS.
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Ahmed v. State Bank of Mysore; 2007 (11)| SCC 75). Considering
the technicality of the plea of Order 2 Rule 2, both the plaints
must be read as a whole to identify the cause of action, which is
necessary to establish a claim or necessary for the plaintiff to
prove if traversed. Therefore, after identifying the cause of action
if it is found that the cause of action pleaded in both the suits is
identical and the relief claimed in the subsequent suit could have
been pleaded in the earlier suit, then the subsequent suit is barred
by Order 2 Rule 2.
xxx xxx xxx
16. In the plaint in OS No. 3150 of 1985 being the earlier suit,
it has been claimed by the respondent being the plaintiff therein
that the appellant being the defendants failed to supply ICO stamps
for 268.08 tonnes of coffee purchased by him for export between
11-8-1982 and 8-9-1982, in spite of its assurances leading to delay
in the shipment of the coffee resulting in losses to the plaintiff. On
the basis of the same, the respondent claimed for the losses
suffered by him along with damages. The respondent further
averred that the cause of action for the suit arose on various
dates when the respondent purchased coffee from the appellant
in the auctions held by them on the assurance that the ICO stamps
will be supplied by the appellant to them.
17. The cause of action in the above suit is the failure of ICO
to supply stamps to the respondent in spite of its assurances. The
respondent to ensure the success of his claim, was required to
prove that on account of the omission of the appellant i.e failure
to provide ICO stamps for the coffee purchased by them, the
respondent suffered losses."
30. The Court went on further hold that plaintiff could only succeed
only by proving failure by the appellant to provide stamps. The grounds
of difference in the suit were found to be as regards the amount of
coffee and the date when the same was purchased.
31. The respondents sought support from the judgment in Alka
Gupta v. Narender Kumar Gupta6. The appellants and the respondents
entered into a partnership to run an institute at place "P" in New Delhi.
Thereafter, an agreement was entered into to sell the undivided half
6 (2010) 10 SCC 141
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share. The respondents paid only part of the sale consideration which
led to the suit by the appellant for the balance amount. The suit was
decreed. Thereafter, the appellant filed subsequent suit for rendition of
accounts for the period from 05.04.2000, which was date on which the
partnership deed was executed till 31.07.2004. According to the appellant,
the partnership was one at will and was dissolved. This Court overturned
the view of the High Court that the suit was barred by Order II Rule 2
and by the principles of constructive res judicata. The Court followed
the judgment of this Court in Gurbux Singh v. Bhooralal7, and inter alia,
held as follows:
"A Division Bench upheld that decision on the grounds that the
suit was barred by Order 2 Rule 2 CPC and that the appellant had
settled all her claims with the respondent under the bayana
agreement dated 29.06.2004. The present appeal was then filed
by special leave.
The cause of action for the first suit was non-payment of price
under the agreement of sale dated 29.06.2004, whereas the cause
of action for the second suit was non-settling of accounts of a
dissolved partnership constituted under the deed dated 05.04.2000.
Merely because the agreement of sale related to an immovable
property at R and the business run therein under the name of
"Takshila Institute" and the second suit referred to a partnership
in regard to business run at P also under the same name of Takshila
Institute, it could not be assumed that the two suits related to the
same cause of action so as to attract Order 2 Rule 2 CPC."
32. As regards the plea of res judicata, here is what the
Court held as follows:-
"Plea of res judicata is a restraint on the right of a plaintiff to
have an adjudication of his claim. The plea must be clearly
established, more particularly where the bar sought is on the basis
of constructive res judicata. The plaintiff who is sought to be
prevented by the bar of constructive res judicata should have notice
about the plea and have an opportunity to put forth his contentions
against the same. In the present case, there was no plea of
constructive res judicata, nor had the appellant-plaintiff an
opportunity to meet the case based on such plea. Res judicata
7 AIR 1964 SC 1810
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means "a thing adjudicated", that is, an issue that is finally settled
by judicial decision. The principle of constructive res judicata
emerges from Explanation IV to Section 11 CPC when read with
Explanation III thereof both of which explain the concept of "matter
directly and substantially in issue". In view thereof, even though a
particular ground of defence or attack was not actually taken in
the earlier suit, if it was capable of being taken in the second suit
in view of the principle of constructive res judicata.