(2) 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) 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.
For the purpose of this rule an obligation and collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
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.
Scope of Order II, Rule 2:
Order II, Rule 2, 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.
The provisions of the rule only compel a plaintiff to include in his suit the whole of the claim arising out of the cause of action. They do not compel him to join in the same suit every cause of action or every claim which he has.
Bar of subsequent suit under Order II, Rule 2 will not be applicable if the identity of cause of action in the previous suit and the subsequent suit is not established. Where previous suit for recovery of sale price was filed, the subsequent suit for recovery of possession on ground that they were owners is not barred under Order II, Rule 2.
The cause of action in the subsequent suit was different and distinct. In previous suit for recovery of sale price, the plaintiffs could not claim the recovery of possession on the basis of title as title in that suit was averred by them to have been transferred to the defendants.
Plea as to bar to second suit cannot be raised and inferred by the court in absence of pleadings before the court. It is more so when pleadings were produced for the first time before the Supreme Court.
The object of the rule is clearly to avoid splitting up of claims or reliefs and to prevent multiplicity of suits. The rule is directed against two evils, the splitting up of claims and the splitting up of remedies. It does not bar pleas in defence. The underlying principle is that a defendant is not to be twice vexed for one and the same cause.
Order II, Rules 1 and 2, C.P.C. are designed to arrest the proliferation of litigation. Order II, Rule 2 interdicts the filing of different suits in respect of multiple reliefs springing from the same cause of action. In the event of cause of action sprouting plurality of reliefs, the suit comprising the entirety of reliefs has to be filed to save the bar under rule 2. This provision seeks to set at naught the series of suits on the same cause of action. In the event of shrinking or confining the suit to some reliefs only the subsequent suit in respect of remainder reliefs is precluded.
Essentials of Order II, Rule 2:
In order to apply the provisions of Order II, Rule 2 of the Civil Procedure Code to bar a suit, what was essential to be found out was (1) as to what was the cause of action in respect of which the claim was made in the previous suit, (2) whether the claim or a portion of claim made in the subsequent suit was based on the same cause of action as the previous one and was between the same parties. Unless the second condition was fulfilled, there could be no bar to the claim made in the subsequent suit.
In determining the cause of action, it was not that it should be merely similar but it should be the same one and identical with the previous one, as against distinct. The tests for the same were whether the genesis of the right to action was the same; and whether for establishing the claim same evidence is required and, secondly, whether the parties are the same, and there would not arise any bar by season of Order II, Rule 3 of the Civil Procedure Code.
Cardinal Principles of Order II, Rule 2:
Same cause of action—no vexation again and again:
The principle behind the provisions of Order II, Rule 2, C.P.C. is that the defendant should be twice vexed for one and the same cause of action. The conditions which are essential for attracting the provisions of Order II, Rule 2, C.P.C. are: (1) that the provisions and the present suit must arise out of the same cause of action; (2) that in respect of the same cause of action the plaintiff was entitled to more than one relief and (3) that without the leave of the court the plaintiff omitted to sue for the relief for which the second suit had been filed.
A test to find out whether the cause of action is the same is to see whether the same evidence will sustain both the suits. It is not necessary that in order to constitute the same cause of action all the allegations made in the two suits should be exactly identical.
A cause of action consists of all facts which it is essential for the plaintiff to allege and to establish and which taken with the law applicable to him gives the plaintiff a right against the defendant. It has also been defined by the courts as all essential facts constituting the right and its infringement.
In a partition suit all the properties of the joint family must be included. It is not open to a member of the joint family to ask for a partition of a certain item and leave the rest, except in certain cases, such as, where some of the items could not be divided by reason of their being in possession of usufructuary mortgages, or, being under a long lease, or, set apart for maintenance of a widow or some member of the family, or some other reasons.
When, therefore, a plaintiff intentionally, not by mistake or inadvertence, nor due to ignorance or oversight, nor with the consent of the co-owners, nor with the leave of the Court, does not include a property in his previous partition suit, although he knows about its existence, and none of the circumstances above mentioned exist, the provisions of sub-rule (2) of Rule 2, Order II of the Code will apply.
The cause of action, in such a case, in the two suits being the same, the plaintiff’s suit will come within the mischief of Order II, Rule 2 of the Code. The omission to include the properties in the earlier suit must be held to be deliberate or intentional. Even if it be accepted that it was left out by mistake the case would still come within the mischief of Order II, Rule 2 of the Code.
Bar of Subsequent Suit:
The very language of Order II, Rule 2, indicates that it is the subsequent suit which is barred and not both the suits. In order to apply Order II, Rule 2, two conditions must be satisfied, firstly, that previous suit and the present suit must arise out of the same cause of action, and, secondly, both the suits must be between the same parties.
Test of Subsequent Suit.—Identical Cause of Action:
The test to find out whether a subsequent suit is barred by Order II, Rule 2 is to see whether the cause of action in the previous suit and the subsequent suit is the same, and whether the plaintiff could have and should have claimed in the former suit the relief which he claims in the subsequent suit.
The rule requires that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action arising out of the same transaction.
Its operation is confined to cases where the plaintiff is entitled to more than one relief in respect to the same cause of action, and not to causes where he is entitled to one relief out of many reliefs to which he may be entitled. In other words, Order II, Rule 2, creates a bar where only cumulative relief can be, but are not asked for, and not where one of the alternative reliefs can be and is asked for in the first suit.
Two suits of the appellant based on two separate causes of action were filed. The first was to enforce bank guarantee and the other was to claim damages for breach of contract. The relief sought in the short cause suit was therefore based on a different cause of action from that upon which the primary relief in the suit was founded.
The legal position, therefore, is that a bank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent it can be said to give rise to a cause of action separate from that of the underlying contract.
However, in the present case the Supreme Court felt handicapped because the High Court (both the learned Single Judge and Division Bench) had no occasion to analyse the nature of the bank guarantee. The Supreme Court therefore refrained from making any observation regarding the true nature of the bank guarantee except pointing out that the two causes of action may not be identical. That would be a matter for the trial court to consider on a true analysis of the bank guarantee at the appropriate stage.
A-bare perusal of Order II, Rule 2, C.P.C. would indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other.
If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as Order II Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause.
What is to be seen in the instant case is whether the cause of action on the basis of which the previous suit was filed, is identical to the cause of action on which the subsequent suit giving rise to the present appeal, was filed.
If the identity of causes of action is established, the rule would immediately become applicable and it will have to be held that since the relief claimed in the subsequent suit was omitted to be claimed in the earlier suit, without the leave of the court in which the previous suit was originally filed, the subsequent suit for possession is liable to be dismissed as the appellants being the defendants in both the suits cannot be vexed twice by two separate suits in respect of the same cause of action.
The first suit was filed to enforce the bank guarantee and the second suit was filed to claim damages for breach of the contract relating to which bank guarantee was given. The second suit is not barred by Order II, Rule 2 as relief claimed in first suit was based on different cause of action than that on which relief based in second suit.
Union of India v. Firm Baijnath Govind Das:
The wording of Order II, Rule 2, C.P.C. is founded upon the principle that a person should not be entitled to two reliefs in the same cause. It is directed against two evils, i.e., the splitting up of a claim and the splitting up of a remedy.
Where there were two breaches of contract in one contract and both occurred before any suit was brought, the cause of action within the meaning of Order II, Rule 2 is the non-performance of the promise and only one suit will lie.
Same Cause of Action—Test:
In order that the cause of action for two suits may be the same, it is necessary that not only the facts which would entitle the plaintiff to establish his title to the property claimed in the two suits be the same but also that the attack on the title or the infringement of the plaintiff’s right at the hands of the defendant must have arisen in substance out of the same transaction.
It is well known that Order II, Rule 2, C.P.C. is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action, he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court.
But the Rule does not preclude a second suit based on a distinct cause of action. The doctrine of res judicata differs from the rule embodied in Order II, Rule 2, in that the former places emphasis on the plaintiff’s duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action.
In the instant case the previous suit was filed for recovery of a sum of Rs. 6,300 as sale price of the land in suit which was dismissed with the finding that the document on which the suit was filed was not a sale deed but was a mere agreement for sale and, therefore, the amount in question could not be recovered as sale price.
That document, thus, constituted the basis of the suit. The subsequent suit was brought by the plaintiffs for recovery of possession on the ground that they were the owners of the land in suit and was consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different.
Since the previous suit was for recovery of sale price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants.
The essential requirement for the applicability of Order II, Rule 2, namely, the identity of cause of action in the previous suit and the subsequent suit was not established. Consequently, the subsequent suit could not be said to be barred by Order II, Rule 2, C.P.C.
Omission or relinquishment of claim:
Casual omission of some items of property from the schedule to the plaint does not mean abandonment of claim. Omission will also not bar if the plaintiff was not aware of his claim or right. It has been held that even though he could by proper enquiry have made himself aware of its existence, if the plaintiff was unaware of the claim at the time of his suit, its non-conclusion will not preclude him from subsequent suit in respect of that claim.
The omission refers to intentional omission and not accidental omission. Relinquishment refers primarily to that before the institution of the suit. And where a person chooses a court by relinquishing a part of his claim, a subsequent suit for the relinquished portion of the claim will be barred by this rule. No subsequent order of the court can revive the right.
Omission to sue for all reliefs:
When a person is entitled to more than one relief in respect of the same cause of action, he may sue for all the reliefs or he may sue for one or more of them and reserve his rights with the leave of the court to sue for the rest. If no such leave is obtained he will be precluded from afterwards suing for any relief so omitted. But if the right to relief in respect of which a further suit is brought did not exist at the date of the institution of the former suit, the subsequent suit is not barred.
Exceptions to the rule of splitting of claims:
1. Rule 2 of Order II does not apply to applications for execution. An application for partial execution is not a bar to subsequent application for execution of the rest of the decree.
2. Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, Rule 2.
3. Failure to claim set off is no bar to a subsequent suit.
4. The bar of Order II, Rule 2, C.P.C., may not apply to a petition for a high prerogative writ under Article 226 of the Constitution.
Principle of Inclusion of whole claim—Exception:
The principle of inclusion of whole claim in suit provided under Order II, Rule 2 is not applicable to reference proceedings under S. 30 of the Land Acquisition Act (1894). In a dispute as to apportionment of compensation, non-inclusion of disputed property in earlier partition suit is not fatal to reference proceedings under S. 30 of the Land Acquisition Act (1894).
Recurring Causes of Action:
In cases of continuous causes of action or recurring causes of action the bar of Order II, Rule 2(3) is not applicable. First suit was filed for infringement of trade mark and passing off action till date of the suit. Later on second is not barred for continuous acts of infringement of trade mark and passing off action on part of the defendant for events after filing of earlier suit continuing till dating of second suit.
Passing off is not an act of deceit and tort every line when it is committed by the defendent the plaintiff gets new cause of action to approach the court. Infringement of trade mark is a continuing wrong so long as it continues. A fresh cause of action for suit arises for suit in spite of earlier infringement has been sued and a new infringement has taken place.
The objection as to misjoinder of causes of action has to be taken at the earliest possible opportunity, i.e., before the trial court, unless such an objection is of a nature which has subsequently arisen. The law has also provided that if such an objection is not taken at the earliest opportunity, then the same shall be deemed to have been waived.
In a petition challenging the promotion, the direct recruits sued two respondents’ promotees in respective capacity. It was held that the law laid down in the petition by the Tribunal would bind all the promotees, who were similarlysituated.
Joinder of causes of action, Order II, Rules 2-6:
(1) Where there is only one plaintiff and only one defendant Order II, Rule 3, provides that the plaintiff may unite in the same suit several causes of action against the same defendant. But where it appears to the court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials or make such order as may be expedient in the interests of justice. [Order II, Rule 6].
(2) Where there is one plaintiff and several defendants and several causes of action, the plaintiff may unite in the same suit several causes of action against the same defendants, if the defendants-are jointly interested in the cause of action.
(3) Where there are two or more plaintiffs and the defendants and causes of action are also several, the plaintiffs may unite the cause of action against the defendants in one suit, if the plaintiffs are jointly interested in the causes of action and the defendants are also jointly interested in them.
Besides the above, there are two general rules which apply to all irrespective of the number of plaintiffs or the number of defendants and they are provided in Order II, Rules 4 and 5. Order II, Rule 4 provides that in a suit for the recovery of immovable property, a plaintiff is not entitled, without the leave of the court, to join in any claim except: (1) claims for mesne profits, or arrears of rent in respect of the property claimed or any part thereof, (2) claims for damages for breach of any contract under which the property is held, and (3) claims in which the relief sought is based on the same cause of action. Order II, Rule 5, provides that no claim by or against an executor, administrator or heir as such shall be joined with claims by or against him personally.
Objections as to misjoinder of causes of action:
All objections on the ground of misjoinder of causes of action .shall be taken at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and such objection not so taken be deemed to have been waived. (Order II, Rule 7).
Application for execution could not be dismissed on technical ground:
Where decree for specific performance of agreement for sale of land. Plaintiff had been fighting for his right to have land almost for 19 to 20 years. It was held that application for execution could not be dismissed on technical ground that heirs of deceased-defendants had remained to be brought on record.