VURIMI PULLARAO S/O SATYANARAYANA versus VEMARI VYANKATA RADHARANI W/O DHANKOTESHWARRAO & ANR on 27 November 2019

VURIMI PULLARAO S/O SATYANARAYANA

v.

VEMARI VYANKATA RADHARANI W/ODHANKOTESHWARRAO & ANR

(Civil Appeal No. 9065 of 2019)

NOVEMBER 27, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDAJAY RASTOGI, JJ.]

Code of Civil Procedure, 1908:

Order 2 Rule 2 – Relinquishment of part of claim – Bar underOrder 2 Rule 2 – When attracted – On facts, plaintiff–appellantfiled suit for injunction restraining defendant–respondent fromobstructing their possession – Six months later, plaintiff filed suitfor specific performance of agreement to sell the property –Dismissal of earlier suit for injunction for default – Trial courtdismissed the suit for specific performance holding that the plaintiffhad omitted to sue for specific performance of the agreementalthough the cause of action had accrued in favour of the plaintiffat the time when the earlier suit for injunction was instituted; andthat the plaintiff had failed to seek the leave of the Court, when thesuit for injunction was instituted, to file a subsequent suit on thesame cause of action seeking performance – Concurrent findingsby the courts below that the suit is barred under order 2 rule 2 –Interference with – Held: In order to attract the applicability of thebar enunciated under Order 2 Rule 2, the cause of action on whichthe subsequent claim is founded ought to have arisen to the plaintiffwhen enforcement of the first claim was sought before the Court –In the instant case, the earlier suit for injunction contained a recitalof the agreement to sell; the price fixed; the payment of earnestmoney; the demand for performance and the failure of the defendantto perform the contract – Indeed, the plaintiff also asserted thatshe was going to institute a suit for specific performance of theagreement – Cause of action for the suit for specific performancehad arisen when the plaintiff had notice of the denial by thedefendant to perform the contract – There was a complete identityof the cause of action between the earlier suit and the cause of

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Aaction for the subsequent suit – This is a relief for which the plaintiffwas 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.

BOrder 2 Rule 2(1) – Principle under – Held: Order 2 Rule2(1) adopts the principle that the law does not countenance amultiplicity of litigation – Hence, a plaintiff who is entitled to asserta claim for relief on the basis of a cause of action must include thewhole of the claim – However, it is open to the plaintiff to relinquishany portion of the claim in order to bring the suit within theCjurisdiction of the court – Plaintiff who omits to sue in respect of orintentionally relinquishes any portion of the claim, shall notafterwards be entitled to sue in respect of the portion omitted orrelinquished – Order 2 Rule 2(3) stipulates that a person who isentitled to more than one relief in respect of the same cause of actionDmay sue for all or any of such reliefs – However, a plaintiff whoomits to sue for all the reliefs, without the leave of the Court, shallnot afterwards sue for any relief so omitted – Leave of the Courtwill obviate the consequence which arises under Order 2 Rule 2(3).

Disposing of the appeals, the CourtEHELD: 1.1 Order 2 Rule 2(1) CPC is premised on thefoundation that the whole of the claim which a plaintiff CPC isentitled to make in respect of a cause of action must be included.However, it is open to the plaintiff to relinquish any portion ofthe claim in order to bring the suit within the jurisdiction of theFCourt. Order 2 Rule 2(1) adopts the principle that the law doesnot countenance a multiplicity of litigation. Hence, a plaintiff whois entitled to assert a claim for relief on the basis of a cause ofaction must include the whole of the claim. A plaintiff who omitsto sue in respect of or intentionally relinquishes any portion ofthe claim, shall not afterwards be entitled to sue in respect of theGportion omitted or relinquished. This is the mandate of Order 2Rule 2(2). Order 2 Rule 2(3) stipulates that a person who is entitledto more than one relief in respect of the same cause of actionmay sue for all or any of such reliefs. However, a plaintiff whoomits to sue for all the reliefs, without the leave of the Court,Hshall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises under Order2 Rule 2(3). In the absence of leave being sought and granted, aplaintiff who has omitted to sue for any of the reliefs to whichthey were entitled to sue in respect of the same cause of actionwould be barred from subsequently suing for the relief which hasbeen omitted in the first instance. But equally, it is necessary tonote that Order 2 Rule 2(2) does not postulate the grant of leave.In other words, a plaintiff who has omitted to sue or hasintentionally relinquished any portion of the claim within themeaning of Order 2 Rule 2(2), shall not afterwards be entitled tosue 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 enunciatedunder Order 2 Rule 2, the cause of action on which the subsequentclaim is founded ought to have arisen to the plaintiff whenenforcement of the first claim was sought before the Court.[Para 12][1138-C]

1.3 In the instant case, the earlier suit for injunction wasinstituted on 30 October 1996. Paragraph 2 of the plaint in thesuit for injunction contained a recital of the agreement to sell;the price fixed for the bargain between the parties; the paymentof earnest money; the handing over of possession; the demandfor performance and the failure of the defendant to perform thecontract. Indeed, the plaintiff also asserted that she was going toinstitute a suit for specific performance of the agreement dated26 October 1995. Under the agreement dated 26 October 1995,time for completion of the sale was reserved until 25 October1996. Notice of performance was issued on 11 October 1996 towhich the defendant had replied on 13 October 1996. The causeof action for the suit for specific performance had arisen whenthe plaintiff had notice of the denial by the defendant to performthe contract. On 30 October 1996 when the suit for injunctionwas instituted, the plaintiff was entitled to sue for specificperformance. There was a complete identity of the cause of actionbetween the earlier suit and the cause of action for the subsequentsuit. Yet, as the record indicates, the plaintiff omitted to sue forspecific performance. This is a relief for which the plaintiff wasentitled to sue when the earlier suit for injunction was instituted.

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AHaving omitted the claim for relief without the leave of the Court,the bar under Order 2 Rule 2(3) would stand attracted. [Para13][1139-F-H; 1140-A-C]

1.4 The first appellate court, in the judgment which itdelivered upon remand took note of the fact that the defendantBhad by its application prayed for summoning the original recordof the earlier suit for injunction for proving the plaint. The plaintiffopposed that plea with the assertion that a certified copy of thedocument could be placed on record instead of summoning theoriginal record. The Civil Judge, Senior Division, accordinglyrejected the application on the ground that since the certifiedCcopy was filed on the record, it was unnecessary to call for theoriginal record. The defendant had moved another application inthe nature of a notice to admit the certified copy of plaint in theearlier suit. This came to be allowed by the trial court. The firstappellate court noted that there was no objection from the plaintiffDwhereupon the certified copy of the plaint was marked as Exhibit.In this background, the first appellate court was clearly justifiedin coming to the conclusion that this is not a case where theplaintiff was deprived of an opportunity to explain the pleadingsin the earlier suit. The finding that there was no prejudice to theplaintiff cannot be faulted. The parties were all along aware of theEpleadings, the nature of the objection to the maintainability ofthe subsequent suit on the ground of the bar under Order 2 Rule2 and the fact that the plaint in the earlier suit was brought on therecord. Indeed, it was at the behest of the plaintiff that a certifiedcopy of the plaint in the earlier suit was allowed to be brought on Fthe record and marked as Exhibit 137. In the circumstances, thebar under Order 2 Rule 2 is attracted. The plaintiff was entitledto sue for specific performance when the earlier suit for injunctionwas instituted but omitted to do so. There was an identity of thecause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the plaintiff that it was inGpursuance of the agreement to sell dated 26 October 1995 thathe had been placed in possession of the property. Yet, withoutseeking the leave of the Court, the plaintiff omitted to sue forspecific performance and rested content with the prayer forpermanent injunction. In these circumstances, the finding arrivedHat by all the three courts that the subsequent suit filed is barred under Order 2 Rule 2 does not warrant any interference in thisappeal. [Para 15][1141-C-H; 1142-A-B]

1.5 Admittedly, the plaintiff has paid over an amount ofRs 1,50,000 to the defendant at the time of execution of theagreement on 26 October 1995. Apart from this, the plaintiffdeposited the balance of the consideration of Rs 30,000 beforethe first appellate court on 3 February 2012. The amount whichhas been deposited by the plaintiff with the defendant must bedirected to refunded together with interest at the rate of nineper cent per annum. Apart from this, the plaintiff would be entitledto a refund of Rs 30,000 which was deposited with the trial courton 3 February 2012 together with accrued interest, if any, thereon.In the event that the defendant fails to refund the said amountwithin a period of two months from the date of receipt of a certifiedcopy of this order, it would be open to the plaintiff to move thisCourt for appropriate directions. The directions are issued inexercise of the jurisdiction under Article 142, maintaining thejudgment 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 tothe plaintiff the amount of Rs 1,40,000 together with interest atthe rate of nine per cent per annum within two months from thedate of receipt of a certified copy. The plaintiff is also entitled torefund of an amount of Rs 30,000 deposited in the trial courttogether with accrued interest, if any, thereon. The plaintiff wouldbe at liberty to apply before this Court for appropriate directionsif the amount is not paid by the defendant within a period of twomonths 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. VenturetechSolutions Private Limited (2013) 1 SCC 625 : [2012] 7SCR 933; Pramod Kumar v. Zalak Singh (2019) 6 SCC621; Mohd. Khalil Khan v. Mahbub Ali Mian (1948)SCC onLine PC 44 (1947–48) 75 IA 121 – referredto.

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ACase Law Reference

BCIVIL APPELLATE JURISDICTION: Civil Appeal No. 9065of 2019.

From the Judgment and Order dated 06.01.2017 of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in Second AppealNo. 352 of 2015.C

With

Civil Appeal No. 9066 of 2019.

Shashibhushan P. Adgaonkar, Adv. for the Appellant.

Satyajit A. Desai, Ms. Anagha S. Desai, Shobhit Dwivedi, Advs.Dfor the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.ECivil Appeal No 9065 of 2019 (@ SLP (C) No 11811/2017)

2. This appeal arises from the judgment of a learned Single Judgedated 6 January, 2017 at the Nagpur Bench of the High Court of Judicatureat Bombay in a Second Appeal. The High Court came to the conclusionthat the suit for specific performance instituted by the appellant wasFbarred by Order 2 Rule 2 of the Code of Civil Procedure, 1908[1] sincethe appellant had instituted an earlier suit for injunction. The courts belowhave noticed that while instituting the earlier suit, it was in thecontemplation of the appellant that a suit for specific performance of theagreement to sell would be instituted, in spite of which no leave of the GCourt was sought under Order 2 Rule 2(3) of the CPC. This appeal thusarises from the concurrent findings which have been recorded by theTrial Court, the First Appellate Court and by the High Court in SecondAppeal holding the suit to be barred.

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3. The facts on which the appeal arises are as follows (partieswill be referred to by their descriptions in the suit):

The subject of the dispute is agricultural land bearing Gat.No.111admeasuring 3 H 05 R situated at Mauje Nayegaon, Taluka Nandura,District Buldhana. On 26 October 1995, the original defendant enteredinto an agreement to sell in favour of the original plaintiff in respect ofthe suit land for a total consideration of Rs 1,80,000. At the time of theagreement to sell, an amount of Rs 1,50,000 was paid by way of earnestto the defendant. The agreement stipulated that the sale deed would beexecuted by 25 October 1996 against the payment of the remainingconsideration in the amount of Rs 30,000. On 11 October 1996, a noticewas issued by the plaintiff to the defendant for performance of thecontract. The plaintiff claims to have been present before the Sub-Registrar on 25 October 1996 for the registration of the sale deed.However, by a reply dated 13 October 1996, the defendant refused toexecute the sale deed. In the meantime, it is alleged that on 16 October1996, the defendant sought to obstruct the possession of the plaintiffover the suit land; the plaintiff claiming to have entered into possessionin pursuance of the agreement to sell. A suit for injunction was institutedby the plaintiff, being Regular Civil Suit No 216 of 1997 before the CivilJudge, Junior Division, Malkapur. Paragraph 2 of the plaint in the earliersuit for injunction contained the following averments:

“The property mentioned in clause 1 of the plaint totally belongsto the defendant for which the defendant had entered into a bargainto sale with the plaintiff on 26.10.95 at a total price ofRs.1,80,000/-. Against the said bargain the defendant had takenon the same day from the plaintiff a sum of Rs.1,50,000/- in cashand gave in writing the bargain letter in favour of the plaintiff.Regarding the remaining amount of Rs.30,000/- it was agreed bythe defendant that the same would be paid at the time of executionof sale deed and thus the bargain letter was obtained in writing bythe plaintiff from defendant. On 26.10.1995 itself the defendanthad handed over possession of the agricultural land to the plaintiff.Since that time the agricultural property is in possession of theplaintiff. Since the date of 26.10.1995 till today all formalities inrespect of this land such as cultivation and all agricultural processesare being done by the plaintiff. On the said farm the plaintiff hadspent a lot of amount for the agricultural activities. Thereafter A

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Aseveral times the plaintiff asked the defendant to execute the saledeed of the said land in favour of the plaintiff. The plaintiff isready to behave as per the bargain. The plaintiff informed thedefendant that by paying the remaining amount of Rs.30,000/- tothe defendant the plaintiff is ready to get the sale deed of the saidproperty; but the defendant kept on prevaricating. Hence asBdecided earlier between the plaintiff and on 11.10.96 the defendantthe plaintiff asked by sending a notice to the defendant to executethe sale deed of the said farm on 15.10.96. That registered noticewas received by the defendant on 11.10.96; but on 15.10.96 thedefendant did not remain present in the office of Sub-RegistrarCNandura and did not register the said sale deed in favour of plaintiffwhen the plaintiff was present there with a cash of Rs.30,000/- tobe paid to the defendant. Hence for getting the fulfilment of theagreement took place between plaintiff and the defendant on26.10.1995 the plaintiff will file a suit in the Court of Hon’ble CivilJudge Senior Division, Khamgaon.”D

4. The reliefs sought in the suit were a declaration that the plaintiffwas in possession of the land and a permanent injunction restraining thedefendant from obstructing the possession of the plaintiff. The suit forinjunction was instituted on 30 October 1996. Admittedly, no leave of theCourt was sought under Order 2 Rule 2(3) of the CPC in the earlier suit Eto institute a suit for specific performance subsequently.

5. On 30 April 1997, the appellant-plaintiff instituted Special SuitNo 61/1997 before the Civil Judge, Senior Division, Khamgaon seekingspecific performance of the agreement to sell the property. The earliersuit for injunction was dismissed in default on 16 September 2005. TheFdefendant contested the maintainability of the suit for specificperformance raising the bar under Order 2 Rule 2 of the CPC. No issuewas framed by the Trial Court with reference to the provisions of Order2 Rule 2. Nonetheless, the Trial Court by its judgment dated 13 October2005 came to the conclusion that the plaintiff had omitted to sue forGspecific performance of the agreement although the cause of action hadaccrued in favour of the plaintiff at the time when the earlier suit forinjunction (RCS No 216/1997) was instituted on 30 October 1996.Adverting to the certified copy of the plaint, which had been placed onthe record, the learned trial judge noted that the plaint in the earlier suitmade specific reference to the fact that the plaintiff would file a suit onH

the basis of the agreement to sell for claiming specific performance.The trial judge observed that the plaintiff had failed to seek the leave ofthe Court, when the suit for injunction was instituted, to file a subsequentsuit on the same cause of action seeking performance. Consequently,the suit for specific performance was dismissed. In appeal, the AdhocDistrict Judge-I, Khamgaon by a judgment dated 6 January 2012 cameto the conclusion that the bar under Order 2 Rule 2 was not attracted. Incoming to this conclusion, the First Appellate Court held that:

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(i) No specific issue had been framed by the Trial Court in thisregard;

(ii) The pleadings in the earlier suit had not been proved toCestablish that the earlier suit and the subsequent suit werebased on the same cause of action;

(iii) No opportunity was furnished to the plaintiff to explain hispleadings in the plaint in the earlier suit; and D

(iv) The Trial Court ought to have framed a specific issue onthe bar under Order 2 Rule 2.

On merits, the first appellate court adverted to the findings of theTrial Court and came to the conclusion that the suit for specificperformance was liable to be decreed. The appeal was accordinglyallowed and a decree for specific performance was passed with a directionto the plaintiff to deposit the balance consideration of Rs 30,000 within aperiod of one month. The plaintiff claims to have deposited the balanceconsideration on 3 February 2012.

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6. A Second Appeal was instituted before the High Court againstthe decree for specific performance. By a judgment dated 2 April 2013,a learned Single Judge of the High Court observed that while dealingwith the appeal the appellate court ought to have explored the possibilityof remand, inter alia, in view of provisions of Order XLI Rule 23 of theCPC. The High Court set aside the judgment of the first appellate courtand remanded the case back to it by consent of parties to decide theappeal afresh.

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7. On remand, the District Judge-I, Malkapur framed as one ofthe points for consideration, whether the suit was barred by Order 2Rule 2 of the CPC. The District Judge noted that the certified copy ofthe plaint in the earlier suit was on record and marked as Exhibit 137.

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AThe plaint contained a reference to the execution of the agreement tosell dated 26 April 2015; to the payment of earnest of Rs 1,50,000 and tothe defendant having been called upon on 11 October 1996 to executethe sale deed. The District Judge did not accept the objection of theplaintiff that the plaint in the earlier suit had not been shown when theplaintiff was in the witness box for the purpose of adducing evidence.BThe first appellate court in that context noted what had transpired duringthe course of the proceedings:

“It is material to note that by application dated 22.2.2005 videEx.-117 before the Trial Court the defendant has prayed for callingthe original record of RCS No.216/1997 from the file of NanduraCCourt for proving the documents. The plaintiff has opposed thatapplication with a say that certified copies of the documents canbe placed on record instead of calling the original record.Accordingly, the learned Civil Judge, Sr.Dn., Khamgaon, hasrejected the application on the ground that since certified copyDcan be filed on record, it is not necessary to call the original record.The record of the Trial Court further shows that one the sameday i.e., on 22.2.2005, the defendant has moved another applicationvide Ex.118 in the nature of notice to admit the document i.e., thecertified copy of plaint in RCS No.216/1997. That application cameto be allowed by the learned Civil Judge, Sr. Dn., Khamgaon. ItEappears that in view of no objection from the plaintiff certifiedcopy of the plaint in RCS no.216/1997 came to marked Ex.137.Therefore, now, plaintiff cannot say that opportunity was not givento him to explain his pleadings in RCS No.216/1997.

The first appellate court noted that certified copy of the plaint inFthe earlier suit for injunction (Exhibit 94) was placed before the TrialCourt and its production was allowed. It was held that in order to supportthe decree passed by the Trial Court it was not necessary for therespondent in the appeal to file a memorandum of cross objectionschallenging a particular finding rendered by the Trial Court. Ultimately, itGheld that when the suit for injunction was instituted, it was open to theplaintiff to incorporate the relief of specific performance together withthe relief of permanent injunction. The foundation for the relief ofpermanent injunction claimed in the earlier suit furnished a completecause of action to sue for the relief of specific performance. All theessential ingredients on the basis of which the subsequent suit wasHinstituted existed on the date when the earlier suit had been filed. Since the plaintiff omitted to seek the relief of specific performance whichwas available when the earlier suit for injunction was instituted, the Courtinferred that the plaintiff had relinquished the claim for specificperformance. Finally, the first appellate court also held that after exploringthe possibility of remand, it had come to the conclusion that it wasunnecessary to do so since the parties had proceeded fully to trial knowingtheir rival cases and had led evidence. In the circumstances, the absenceof an issue did not (it was held) cause any prejudice, warranting a remand.The judgment of the first appellate court was upheld by the High Courtin a Second Appeal on 6 January 2017. That is how the proceedingsbefore this Court arise under Article 136 of the Constitution.

8. Mr.Shashibhushan P. Adgaonkar, learned counsel appearing onbehalf of the appellant submitted that in order to attract the bar underOrder 2 Rule 2, an essential requirement is that there must be an identitybetween the cause of action which forms the basis of the earlier suit andthe cause of action on which the claim in the later suit is based. Relyingon the decision of the Constitution Bench in Gurbux Singh v Bhooralal[2],it was urged that for the bar under Order 2 Rule 2 to be established, it isnecessary for the defendant to file the pleadings in the previous suit inevidence so as to prove to the Court in the subsequent suit that there isan identity of the cause of action in the two suits. In the present case itwas submitted that the defendant failed to do so. Learned Counsel urgedthat the plaint in the earlier suit was not shown to the plaintiff in thesubsequent suit at the stage when the evidence was adduced, as a resultof which the plaintiff was deprived of the opportunity to establish theabsence of identity between the causes of action in the two suits.Moreover, it was submitted that the Trial Court proceeded to hold thatthe suit for specific performance was barred under Order 2 Rule 2 withoutframing a specific issue. Learned counsel submitted that the first appellatecourt could have framed an issue and sought a determination thereon bythe Trial Court after allowing evidence to be adduced or it could havealternatively made the determination itself upon production of additionalevidence under Order XLI Rule 27. Neither of these courses of actionwas adopted and hence it has been submitted that the bar under Order 2Rule 2 does not stand attracted.

9. On the other hand, supporting the view which weighed with theTrial Court, the appellate court and the High Court, it has been urged by 2 AIR 1964 SC 1810

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AMr Satyajit A Desai, that the plaint in the earlier suit contains a clearreference to the agreement to sell, to the payment of consideration andto the notice of performance that was issued by the plaintiff. Not onlythis, para 2 of the plaint contained a specific recital of the fact that theplaintiff intended to institute a suit for specific performance before theCourt of the Civil Judge, Senior Division, Khamgaon. Despite this, itBwas submitted that the plaintiff omitted to seek leave of the court underOrder 2 Rule 2(3). This, it was submitted, must necessarily result in thebar under the provision being attracted. Learned counsel submitted thatthe distinction with the situation as it arose before the Constitution Benchin Gurbux Singh (supra) is that in the present case, the plaint in theCearlier suit was duly marked as an Exhibit without any objection fromthe plaintiff. Learned counsel in that regard has also relied upon on thedecisions of this Court in Virgo Industries (Eng.) Private Limited vVenturetech Solutions Private Limited[3] and Pramod Kumar vZalak Singh[4].

D10. Order 2 Rule 2 is extracted below:“2. Suit to include the whole claim.-(1) Every suit shall includethe whole of the claim which the plaintiff is entitled to make inrespect of the cause of action; but a plaintiff may relinquish anyportion of his claim in order to bring the suit within the jurisdictionEof any Court.(2) Relinquishment of part of claim.-Where a plaintiff omits tosue in respect of, or intentionally relinquishes, any portion of hisclaim, he shall not afterwards sue in respect of the portion soomitted or relinquished.

F(3) Omission to sue for one of several relief.-A person entitledto more than one relief in respect of the same cause of actionmay sue for all or any of such reliefs; but if he omits, except withthe leave of the Court, to sue for all such reliefs, he shall notafterwards sue for any relief so omitted.

GExplanation.-For the purposes of this rule an obligation and acollateral security for its performance and successive claims arisingunder the same obligation shall be deemed respectively to constitutebut one cause of action.”

3(2013) 1 SCC 625H4(2019) 6 SCC 621

11. Order 2 Rule 2(1) is premised on the foundation that the wholeof the claim which a plaintiff is entitled to make in respect of a cause ofaction must be included. However, it is open to the plaintiff to relinquishany portion of the claim in order to bring the suit within the jurisdiction ofthe Court. Order 2 Rule 2(1) adopts the principle that the law does notcountenance a multiplicity of litigation. Hence, a plaintiff who is entitledto assert a claim for relief on the basis of a cause of action must includethe whole of the claim. A plaintiff who omits to sue in respect of orintentionally relinquishes any portion of the claim, shall not afterwardsbe entitled to sue in respect of the portion omitted or relinquished. This isthe mandate of Order 2 Rule 2(2). Order 2 Rule 2(3) stipulates that aperson who is entitled to more than one relief in respect of the samecause of action may sue for all or any of such reliefs. However, a plaintiffwho omits to sue for all the reliefs, without the leave of the Court, shallnot afterwards sue for any relief so omitted. The leave of the Court willobviate the consequence which arises under Order 2 Rule 2(3). In theabsence of leave being sought and granted, a plaintiff who has omittedto sue for any of the reliefs to which they were entitled to sue in respectof the same cause of action would be barred from subsequently suingfor the relief which has been omitted in the first instance. The grant ofleave obviates the consequence under Order 2 Rule 2(3). But equally, itis necessary to note that Order 2 Rule 2(2) does not postulate the grantof leave. In other words, a plaintiff who has omitted to sue or hasintentionally relinquished any portion of the claim within the meaning ofOrder 2 Rule 2(2), shall not afterwards be entitled to sue in respect ofthe portion so omitted or relinquished.

12. The rationale underlying in Order 2 Rule 2 has been dealt within several judgments including in the decision of the Privy Council inMohd. Khalil Khan v Mahbub Ali Mian[5], the Privy Council held:

“(1) The correct test in cases falling under Order 2 Rule 2, is‘whether the claim in the new suit is in fact founded upon a causeof action distinct from that which was the foundation for the formersuit.”

(2) The cause of action means every fact which will be necessaryfor the plaintiff to prove if traversed in order to support his right tothe judgment.

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A(3) If the evidence to support the two claims is different, then thecauses of action are also different.

(4) The causes of action in the two suits may be considered to bethe same if in substance they are identical.

(5) The cause of action has no relation whatever to the defenceBthat may be set up by the defendant, nor does it depend upon thecharacter of the relief prayed for by the plaintiff. It refers to themedia upon which the plaintiff asks the court to arrive at aconclusion in his favour.”

In order to attract the applicability of the bar enunciated underCOrder 2 Rule 2, the cause of action on which the subsequent claim isfounded ought to have arisen to the plaintiff when enforcement of thefirst claim was sought before the Court.

In Virgo Industries (Eng.) Private Limited (supra), theprovisions of Order 2 Rule 2 came up for consideration before a twoDjudge Bench of this Court. The Court observed:

“10. The object behind the enactment of Order 2 Rules 2(2) and(3) CPC is not far to seek. The Rule engrafts a laudable principlethat discourages/prohibits vexing the defendant again and againby multiple suits except in a situation where one of the severalEreliefs, though available to a plaintiff, may not have been claimedfor a good reason. A later suit for such relief is contemplated onlywith the leave of the court which leave, naturally, will be grantedupon due satisfaction and for good and sufficient reasons.”

These principles have been reiterated in the more recent decisionFin Pramod Kumar (supra).

13. In the present case, the earlier suit for injunction was institutedon 30 October 1996. Paragraph 2 of the plaint in the suit for injunctioncontained a recital of the agreement to sell dated 26 October 1995; theprice fixed for the bargain between the parties; the payment of earnestGmoney; the handing over of possession; the demand for performanceand the failure of the defendant to perform the contract. Indeed, theplaintiff also asserted that she was going to institute a suit for specificperformance of the agreement dated 26 October 1995. Under theagreement dated 26 October 1995, time for completion of the sale wasreserved until 25 October 1996. Notice of performance was issued onH

11 October 1996 to which the defendant had replied on 13 October1996. The cause of action for the suit for specific performance hadarisen when the plaintiff had notice of the denial by the defendant toperform the contract. On 30 October 1996 when the suit for injunctionwas instituted, the plaintiff was entitled to sue for specific performance.There was a complete identity of the cause of action between the earliersuit (of which paragraph 2 of the plaint has been reproduced in theearlier part of the judgment) and the cause of action for the subsequentsuit. Yet, as the record indicates, the plaintiff omitted to sue for specificperformance. This is a relief for which the plaintiff was entitled to suewhen the earlier suit for injunction was instituted. Having omitted theclaim for relief without the leave of the Court, the bar under Order 2Rule 2(3) would stand attracted.

14. But the case of the plaintiff in appeal is that in order that thebar under Order 2 Rule 2 be attracted, it is necessary that the plaint inthe earlier suit must be proved in evidence. In the present case it wassubmitted that this was not done. The basis of above submission is thejudgment of the Constitution Bench in Gurbux Singh (supra). Now it isnecessary to analyse the facts which led to the decision of the ConstitutionBench. The respondent had instituted a suit against the claimant forpossession of certain property and for mesne profits. The allegation inthe plaint was that the plaintiff was the absolute owner of the propertyof which the defendant was in wrongful possession and that despite ademand he had failed to vacate the property, thereby attracting the liabilityto pay mesne profits. The plaint contained a reference to a previous suitinstituted by the plaintiff and his mother in which a claim had been madeagainst the defendant for the recovery of mesne profits in regard to thesame property. It was also stated that mesne profits had been decreedin the suit. In the written statement, the appellant-defendant raised aplea to the maintainability of the suit on the ground of the bar underOrder 2 Rule 2. As an issue was struck it was argued as a preliminaryissue. The Court recorded a finding that the suit was barred by theprovisions of Order 2 Rule 2. The Court held that without the pleadingsin the earlier suit being made a part of th record, the trial court decidedthe issue as a matter of deduction. Consequently, the District Judge heldthat the bar under Order 2 Rule 2 could not have been entertained withoutthe plaint in the earlier suit being made a part of the record. However,the first appellate court also held that if the point did arise for consideration,it would have decided it in favour of the plaintiff and treated the cause of A

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Aaction for a suit for mesne profit as distinct from a cause of action forthe relief of possession of a property from a trespasser. However, onthe first point that there was no material on the record to justify the pleaof a bar under Order 2 Rule 2, the District Judge did not rest his decisionon his view of the law as regards the construction of Order 2 Rule 2(3).Accordingly, he set aside the dismissal of the suit and remanded it to theBTrial Court for a decision on merits. The High Court dismissed the SecondAppeal as a consequence of which proceedings came up before thisCourt. In that context, the Constitution Bench held:

“6. In order that a plea of a bar under O.2 R.2(3), Civil ProcedureCode should succeed the defendant who raises the plea mustCmake out (1) that the second suit was in respect of the samecause of action as that on which the previous suit was based; (2)that in respect of that cause of action the plaintiff was entitled tomore than one relief; (3) that being thus entitled to more than onerelief the plaintiff, without leave obtained from the Court omittedDto sue for the relief for which the second suit had been filed.From this analysis it would be seen that the defendant would haveto establish primarily and to start with, the precise cause of actionupon which the previous suit was filed, for unless there is identitybetween the cause of action on which the earlier suit was filedand that on which the claim in the later suit is based there wouldEbe no scope for the application of the bar. No doubt, a relief whichis sought in a plait could ordinarily be traceable to a particularcause of action but this might, by no means, be the universal rule.As the plea is a technical bar it has to be established satisfactorilyand cannot be presumed merely on basis of inferential reasoning.FIt is for this reason that we consider that a plea of a bar under O.2R.2, Civil Procedure Code can be established only if the defendantfiles in evidence the pleadings in the previous suit and therebyproves to the Court the identity of the cause of action in the twosuits.”

GOn the facts of the case, the Constitution Bench noted, that it wascommon ground that the pleadings in the earlier suit had not been filedby the appellant in the subsequent suit as evidence in support of the pleaunder Order 2 Rule 2. This Court observed that in the absence of thepleadings, the decision of the Trial judge was merely as a matter ofopinion. This Court agreed with the view which had been taken by theH

District Judge who had noticed the deficiency in the case of the appellant:without the plaint in the previous suit being on the record, a plea of thebar under Order 2 Rule 2 was not maintainable. As a matter of fact, theHigh Court also noted that neither the plaint nor the written statement inthe earlier suit had been filed and the only document which was availablewas the judgment in appeal. It was in this background that the Courtobserved that in the absence of the pleadings in the earlier suit, it wasnot possible to enter a finding on the identity of the cause of action.

15. The situation as it obtained in the case before the ConstitutionBench is distinct from the events as they transpired in the present case.The first appellate court, in the judgment which it delivered upon remandtook note of the fact that the defendant had by its application at Exhibit117 prayed for summoning the original record of the earlier suit forinjunction for proving the plaint. The plaintiff opposed that plea with theassertion that a certified copy of the document could be placed on recordinstead of summoning the original record. The Civil Judge, Senior Division,accordingly rejected the application on the ground that since the certifiedcopy was filed on the record, it was unnecessary to call for the originalrecord. The defendant had moved another application at Exhibit 118 inthe nature of a notice to admit the certified copy of plaint in the earliersuit. This came to be allowed by the Trial Court. The first appellatecourt noted that there was no objection from the plaintiff whereupon thecertified copy of the plaint was marked as Exhibit 137. In this background,the first appellate court was clearly justified in coming to the conclusionthat this is not a case where the plaintiff was deprived of an opportunityto explain the pleadings in the earlier suit. The finding that there was noprejudice to the plaintiff cannot be faulted. The parties were all alongaware of the pleadings, the nature of the objection to the maintainabilityof the subsequent suit on the ground of the bar under Order 2 Rule 2 andthe 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 theplaint in the earlier suit was allowed to be brought on the record andmarked as Exhibit 137. In the circumstances, we are of the view thatthe bar under Order 2 Rule 2 is attracted. The plaintiff was entitled tosue for specific performance when the earlier suit for injunction wasinstituted but omitted to do so. There was an identity of the cause ofaction in the earlier suit and the subsequent suit. The earlier suit wasfounded on the plea of the plaintiff that it was in pursuance of theagreement to sell dated 26 October 1995 that he had been placed in A

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Apossession of the property. Yet, without seeking the leave of the Court,the plaintiff omitted to sue for specific performance and rested contentwith the prayer for permanent injunction. In these circumstances, weagree with the finding which has been arrived at by all the three courtsthat the subsequent suit filed is barred under Order 2 Rule 2 does notwarrant any interference in this appeal. The appeal would accordinglyBhave to stand dismissed and we order accordingly.

16. However, there is one aspect of the case which, in our view,warrants a recourse to the power of this Court under Article 142 torender a complete justice between the parties.C17. Admittedly, the plaintiff has paid over an amount of Rs 1,50,000to the defendant at the time of execution of the agreement on 26 October1995. Apart from this, the plaintiff deposited the balance of theconsideration of Rs 30,000 before the first appellate court on 3 February2012 (a copy of the receipt is marked as Annexure P-4 to the appeal).We are of the view that the amount which has been deposited by theDplaintiff with the defendant must be directed to refunded together withinterest at the rate of nine per cent per annum. Apart from this, theplaintiff would be entitled to a refund of Rs 30,000 which was depositedwith the Trial Court on 3 February 2012 together with accrued interest,if any, thereon. In the event that the defendant fails to refund the aboveEamount within a period of two months from the date of receipt of acertified copy of this order, it would be open to the plaintiff to move thisCourt for appropriate directions.

18. Subject to the above directions which we have issued in exerciseof our jurisdiction under Article 142, we dispose of the appeal, maintainingFthe judgment of the High Court.

Civil Appeal No.9066 of 2019 (@ SLP (C) No.122210/2017)

19. The present appeal has been heard together with theaccompanying Civil Appeal which has been decided by the abovejudgment. Learned counsel appearing on behalf of the contesting partiesGhave agreed that the only point of distinction is that an amount of Rs1,40,000 has been deposited as earnest money and an amount of Rs30,000 was deposited before the Trial Court in pursuance of the order ofthe first appellate court decreeing the suit. We direct that the defendantshall refund to the plaintiff the amount of Rs 1,40,000 together withinterest at the rate of nine per cent per annum within two months fromH

VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI[DR DHANANJAYA Y CHANDRACHUD, J.]

the date of receipt of a certified copy. The plaintiff is also entitled torefund of an amount of Rs 30,000 deposited in the Trial Court togetherwith accrued interest, if any, thereon. The plaintiff would be at liberty toapply before this Court for appropriate directions if the amount is notpaid by the defendant within a period of two months from today.

20. The appeal is accordingly disposed of.

Nidhi Jain

Appeals disposed of.

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