PRAMOD KUMAR & ANR. versus ZALAK SINGH & ORS. on 10 May 2019

[2019] 7 S.C.R. 919

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 toinclude the whole claim – Two alienations by father of separateareas of the ancestral property, on different dates – Filing ofseparate suits for setting aside the two sale deeds – First suitdismissed by the trial court – Second suit dismissed by the trialcourt as also the appellate court on the ground of Order II, rule 2and constructive res judicata – High Court setting aside the order– On appeal held: Order II, Rule 2(1) provides that a plaintiff is toinclude the whole of the claim, which he is entitled to make, in respectof the cause of action – However, if a plaintiff omits to sue orrelinquishes intentionally any portion of his claim, he shall be barredfrom suing on that portion so omitted or relinquished – However, ifdifferent reliefs could be sought for in one suit arising out of acause of action, if leave is obtained from the Court, then a secondsuit, for a different relief than the one claimed in the earlier suit,can be prayed for – Principle underlying Order II, Rule 2 is that noman can be vexed twice over the same cause of action. All claimsand reliefs, which arise from a cause of action, must becomprehended in one single suit – On facts, at the time when thefirst suit was filed even though the second alienation could bechallenged and it stemmed from one single cause of action and nottwo different causes of action, the mere fact that a different periodof limitation is provided, cannot stand in the way of the bar underOrder II, Rule 2 – At the time of filing of the first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed whichconstituted the remaining portion of the land – Suits containedvirtually identical averments in regard to both the transactions – Insuch circumstances, it was open to the plaintiff to seek relief inrespect 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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[2019] 7 S.C.R.

Ain respect of the sale deed, the bar under Order II, Rule 2 wouldapply – Thus, the judgment of the High Court is set aside.

Cause of action – Meaning of – Explained.

Allowing the appeal, the Court

BHELD: 1.1 Order II, Rule 2(1) of the Code of CivilProcedure, 1908 provides that a plaintiff is to include the wholeof the claim, which he is entitled to make, in respect of the causeof action. However, it is open to him to relinquish any portion ofthe claim. Order II, Rule 2 provides for the consequences ofrelinquishment of a part of a claim and also the consequences ofComitting a part of the claim. It declares that if a plaintiff omits tosue or relinquishes intentionally any portion of his claim, he shallbe barred from suing on that portion so omitted or relinquished.Order II, Rule 2(3), however, deals with the effect of omission tosue for all or any of the reliefs in respect of the same cause ofDaction. The consequences of such omission will be to precludeplaintiff from suing for any relief which is so omitted. The onlyexception is when he obtains leave of the Court. Thus, in respectof omission to include a part of the claim or relinquishing a partof the claim flowing from a cause of action, the result is that theplaintiff is totally barred from instituting a suit later in respect ofEthe claim so omitted or relinquished. However, if different reliefscould be sought for in one suit arising out of a cause of action, ifleave is obtained from the Court, then a second suit, for a differentrelief than one claimed in the earlier suit, can be prayed for. Thereare three expressions which are found in Order II, Rule 2. Firstly,Fthere is reference to the word “cause of action”, secondly theword “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 beirrelevant to determine what cause of action means. The reliefs,Gwhich are sought by the plaintiffs, will not be determinative ofwhat constitutes cause of action. Cause of action as explained bythe Privy Council means the media through which the plaintiffseeks to persuade the Court to grant him relief. It could,therefore, be said to be the factual and legal basis or premiseupon which the Court is invited by the plaintiff to decide the caseH

in his favour. It is also clear that the cause of action, in both thesuits, 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 differentfrom 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 bevexed twice over the same cause of action. All claims and reliefs,which arise from a cause of action, must be comprehended in onesingle suit. Order II, Rule 2 provides for the principle of repose.If this be the underlying object of Order II, Rule 2, the fact thatat the time when the first suit was filed even though the secondalienation could be challenged and it stemmed from one singlecause of action and not two different causes of action, the merefact that a different period of limitation is provided, cannot standin 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 becontained in a plaint. It, inter alia, provides that the factsconstituting the cause of action and when it arose, be pleaded.Apparently, the submission of the respondents is having regardto Article 109 of the Limitation Act, the cause of action asprovided in Article 109, would commence from the date of thedeed being 11.02.1959, and therefore, it has a different period oflimitation. It indicates that cause of action, raised in the secondsuit, is not identical with a cause of action in the first suit. Thissubmission proceeds on a misapprehension as to what constitutesthe cause of action. It is the bundle of facts, which if traversed,must be proved. However, as laid down by the Privy Council, itwould be understood also to mean the media through whichCourt’s intervention is sought by the plaintiff. [Para 36][938-B-D]

1.5 The case of the plaintiffs appears to be that the propertyis ancestral property. Their late father T was given to wastefulways and addicted to drink and otherwise. He was given to sellingproperties. His well-wishers intervened and partition ensued.However, 8.22 acres was kept out of the partition deed. He decidedto sell 8.22 acres without there being any legal necessity and ABC

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Awithout any benefit to the joint family. The first part of thetransaction, which consisted of two parts, pertained to sale deedand that was the subject matter of the first suit. At the time offiling of the said first suit, late predecessor-in-interest of theplaintiff, had also executed another sale deed which constitutedthe remaining portion which consisted of the 8.22 acres land.BThe suits contained virtually identical averments in regard toboth the transactions. The first suit was filed in 1963 and thesecond suit filed in the year 1971. [Para 38] [938-E-G]

1.6 In such circumstances, this is a case where the plaintiffought to have included relief in the form of setting aside theCsecond sale deed also. This is not a case where the second saledeed had not been executed when the plaintiff instituted the firstsuit. It was open to the respondent/plaintiff to seek relief in respectof the second sale executed by their predecessor-in-interest andwhat is more important in favour of the same parties (defendants)Dwho are the appellants. The High Court has proceeded to reasonbased on Order II, Rule 3. It is open to the plaintiff to combinecauses of action. [Para 39, 40] [938-H; 939-A-C]

1.7 The law does not compel a litigant to combine one ormore causes of action in a suit. It is open to a plaintiff, if he soEwishes, however to combine more than one cause of action againstsame parties in one suit. However, it is true that the embargo inOrder II Rule 2 will arise only if the claim, which is omitted orrelinquished and the reliefs which are omitted and not claimed,arise from one cause of action. If there is more than one cause ofaction, Order II, Rule 2 will not apply. It is also true that OrderFII, Rule 2 manifests a technical rule as it has the effect of posingan obstacle in the path of a litigant ventilating his grievance inthe Courts. But there is an equally important principle that noperson shall be vexed twice on the same cause of action. On thesame cause of action, the plaintiffs having omitted to sue in respectGof the sale deed in question, the bar under Order II, Rule 2 wouldapply. In view thereof it is not necessary to pronounce on thequestion relating to constructive res judicata. Thus, the judgmentof the High Court is set aside. [Para 41, 42] [939-E-H; 940-A-B]

Coffee Board v. Ramesh Exports Private Limited (2014)H6 SCC 424 : [2014] 7 SCR 461 ; A.B.C. Laminart Pvt.

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 ; VirgoIndustries (Eng.) (P) Ltd. v. Venturetech Solutions (P)Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 ; GurbuxSingh v. Bhooralal AIR 1964 SC 1810 : 1964SCR 831 ; Union of India v. H.K. Dhruv (2005) 10SCC 218 ; S. Nazeer Ahmed v. State Bank of Mysore(2007) 11 SCC 75 : [2007] 1 SCR 843 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1055of 2019.

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From the Judgment and Order dated 31.08.2012 of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in Second AppealNo. 5 of 1995.

Nikhil Nayyar, Garvesh Kabra, V. R. Munde, Advs. for theAppellants.

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R. K. Borkar, Shirish K. Deshpande, Ishwar Chavlewar, MohitGautam, Advs. for the Respondents.

The Judgment of the Court was delivered by G

K. M. JOSEPH, J.

1. This appeal by special leave is directed against the judgmentand order dated 31.08.2012 passed by the High Court in Second AppealNo. 5 of 1995. By the impugned judgment, the High Court has set asidethe concurrent findings of the Courts below resulting in dismissal of thesuit filed by the respondents (plaintiffs) on the ground that the suit was H

Abarred 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 todecide on merits.

2. One Tikaram was the husband of respondent No.4 and theBfather of respondent Nos. 1 to 3. He was holding 8.22 acres of land inKhasra No.189 at Village Gondia in his name. On 21.01.1959, he soldthe land to the extent of 3.20 acres out of the total 8.22 acres to theappellants and thereafter, on 11.02.1959, he sold the remaining portionof 4.82 acres of land, which was the balance out of 8.22 acres, also tothe appellants. Tikaram passed away on 15.07.1959.CThe 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 wasa joint family ancestral property and he had sold it for immoral purposesand in a manner prejudicial to the interest of joint family. He was addictedDto drink and there was no necessity to sell the property.

3. On 31.01.1969, the Trial Court dismissed the said suit holdingthat Tikaram was the owner of the property due to the partition effectedin the year 1957. Hence, he had the right to sell the suit land. Theappellants were bona fide purchasers.E4. Aggrieved by the decree of the Trial Court, the respondentsfiled an appeal (bearing Civil Appeal NO. 22 of 1969) on 10.02.1971.

5. The respondents again filed the present suit (bearing Civil SuitNo. 34 of 1971) challenging the Sale Deed dated 11.02.1959 and seekingother reliefs. It is the said suit which came to be dismissed both by theFTrial Court and the First Appellate Court. The Trial Court answered theissues including whether the Suit is barred under Order II Rule 2 andalso affected by constructive res judicata. It found that the suit is liableto be dismissed on the ground of Order II Rule 2 and constructive resjudicata. The dismissal by the Appellate Court was essentially on theGbasis of the provisions of Order II Rule 2 of the CPC as also constructiveres judicata on the score that the second alienation dated 11.02.1959ought to have been the subject matter of the earlier suit. The AppellateCourt, in fact, found that the Trial Court was right in answering the otherpoints. It is to be noted that the judgment of the Trial Court in the first H

suit came to be reversed in the civil appeal and the same has becomefinal.

6. The High Court, however, reversing the orders of both thecourts 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 secondsuit must be identical. In this case, there were two alienations by theTikaram giving rise to two cause of actions. It is also found thatconstructive res judicata will not apply.

7. We have heard learned counsel for the parties and perused therecord.

8. Learned counsel for the appellants contended that the HighCourt has clearly erred in coming to the conclusion that Order II Rule 2was not a bar. Order II Rule 2 is indeed attracted. He took us throughthe pleadings in the two suits and contended that the cause of action inthe second suit is identical with the cause of action in the first suit. Ason the date of the institution of the first suit, the second alienation wasvery much available to be impugned and it is not open to the respondentsto split the cause of action in separate suits and seek relief which isprecisely what has been done by the respondents in this case. He reliedupon the judgment of this Court in Coffee Boardv. Ramesh ExportsPrivate Limited1 and A.B.C. Laminart Pvt. Ltd. & Anr.v. A.P. Agencies,2Salem.

9. Learned counsel for the respondents drew our attention to OrderVII Rule 1. He points out that the cause of action in both the suits aredifferent. He also drew our attention to Article 109 of the LimitationAct, 1963, which reads as follows:

10. He would contend that the period of limitation as far as thesecond sale deed is different from the period of limitation as far as thefirst sale deed is concerned. The period of limitation as far as the second 1 (2014) 6 SCC 4242 (1989) 2 SCC 163

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Aalienation is concerned will expire only on the expiry of 12 years fromthe date of taking of possession by the alienee. He further relied on the3judgment of this Court in Alka Guptav. Narender Gupta.

11. The first question, which we are called upon to decide, iswhether the High Court was right in holding that the bar, under Order IIBRule 2, will not apply in the facts of this case.

12. Before, we advert to the decisions on the point it would beprofitable 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 SchoolCof Law as administered by Benaras School. Tikaram’s father died whenTikaram was a minor. During the minority of Tikaram, the property wasmanaged by his mother. On becoming major, Tikaram fell into bad andimmoral habits and grew into a drunkard. He was also addicted to othervices. He indulged in wasteful habits and therefore sold his joint familyDancestral property for immoral purposes and in a manner prejudicial tothe interest of the joint family. On the intervention of relations, a partitionwas entered into on 11.01.1957, which was duly registered.

14. At the time of partition, plaintiff No.2 though begotten wasborn afterwards on 02.06.1957 and as such he could not and was notEmade a party to the above partition. Plaintiff No. 3 was born on26.08.1959 and therefore he had interest in the suit property. At thetime of partition, in Khasra No. 189 an area of 8.22 acres was not includedin the share of either deceased Tikaram or plaintiff No.1 but was keptjoint thereafter. We may notice the following:

“(g) That in or about the month of September, 1958, plaintiffsFknew that Tikaram wanted to sale their lands and hence theypublished a general prohibitory notice in the issue dated 14[th]September, 1958 of the Hindu Daily “NAVBHARAT” which haswide circulation at Gondia and the surrounding area warning publicin general not to accept any transfer of land from deceasedGTikaram. That subsequently the plaintiffs learnt that the defendantsintended to enter into a contract of sale with deceased Tikaram inrespect of the suit land and hence they served the defendantswith a written notice dated 4.1.1959 asking them to desist frompurchasing land mentioned in para 1(e) above.

H3 (2010) 10 SCC 141

3. That, however, despite warning and notices the defendantspurchased a portion of Kh.No. 189 admeasuring 3.20 acres, asparticularly described in the plaintiff map by letters Pa, Pha, Ba,Bha, Ma and in red colour, for the alleged consideration ofRs.8,000/- vide registered sale deed dated 21.1.1959.”

15. It is the further case that the property was the ancestral jointfamily property and the alienation was not one for necessity or forconferring 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 landby birth and plaintiff No. 4 (the widow of Tikaram) had a share withthem. The payment of consideration is fictitious and it never passed.Being without consideration, the alienations were not valid and not bindingon 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 declarethe sale deed as not binding on the interest of plaintiff No. 4 and fordelivery of possession to her or in the alternative a decree for settingaside the sale deed dated 21.01.1959 and for delivery of possession tothe plaintiff, enquiry as to mesne profits and for mandatory injunction todemolish certain constructions.

17. Let us now look at the pleadings in the second suit viz. CivilSuit No. 34 of 1971.

18. Herein also, the plaintiffs and the defendants are the same. Itis stated inter alia as follows:

The Bhumidhari land Kh. No. 189 area 8.22 acres situated invillage Gondia is the ancestral property of plaintiff Nos. 1, 2 and 3. PlaintiffNo. 4 is the mother of plaintiff Nos. 1 to 3. The plaintiffs are Hindu andare governed by Mitakshara Law as administered by Benaras School.The same allegations were raised about Tikaram having fallen into immoralhabits and growing into an incorrigible drunkard and selling joint familyancestral lands for immoral purposes. It also referred to partition dated11.01.1957. There were also allegations relating to Kh. No. 189 wherein8.22 acres of land was not included either in the share of deceasedTikaram or plaintiff No.1 but was kept joint. It is relevant to extractpara 3 of the second plaint which is to the following effect:- “That, however, despite warning and notices the defendantspurchased a portion of Kh. NO. 189 from the deceased father of A

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Athe plaintiffs admeasuring 3.20 acres vide sale deed dated21.01.1959. The plaintiffs have filed C.S. No. 131 of 1963 againstthe defendants for setting aside the said sale. The suit havingbeen dismissed by the trial court the plaintiffs have filed CivilAppeal No. 22/69 against the said judgment and decree which isnow pending in the Court of the Assistant Judge, at BhandaraB4(a). That Tikaram the deceased father of the plaintiffs again on11.02.1959 sold an area of 4.82 acres out of suit Kh. No. 189 tothe plaintiffs under the same circumstances stated above and asdescribed 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 allegedCconsideration of Rs.4000/- vide registered sale deed dated11.2.1959 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 ancestraljoint family property and the alienation being not one for necessity or forconferring benefits upon the estate or for payment of antecedent debtDand it is liable to be set aside.

20. Having referred to the pleadings, let us examine what theHigh Court has held. The High Court holds that all successive claims,arising under the same obligation, shall be deemed to constitute one causeof action. It further finds that the crux of the matter is, there are twoEalienations of separate areas of the land on different dates, and althoughthey are in favour of the same parties, it would give rise to more thanone cause of action. It was further found that by restricting to first suitto the first alienation, it could not be found that plaintiff has split-up theclaims or split-up the remedies. The execution of the second sale deedin favour of the same party gives rise to distinctive and separate causeFof action. The High Court further proceeds to refer to the illustrations inOrder II Rule 2 CPC, which reads as follows:

“A lets a house to B at a yearly rent of Rs. 1200. The rent for thewhole of the years 1905, 1906 and 1907 is due and unpaid. A suesB in 1908 only for the rent due for 1906. A shall not afterwardsGsue B for the rent due for 1905 or 1907”.

21. Thereafter, the High Court proceeds to take a case where Aowns two houses and he let them to B. A suit is filed in respect ofarrears of rent in respect of one house, though arrears were there inrespect of the other house also. The High Court takes the view that it is H

the choice of the plaintiff either to unite or not to unite both the causes ofaction and the second suit would not be barred.

22. In the case of Mohammad Khalil Khanv. Mehbub Ali Mian4,the earlier suit related to the property at Oudh. The parties belonged tothe Sunni sect and the properties belonged to one Rani Barkatunnissawho owned properties at Shahjahanpur and Oudh. The first suit did notinclude the property at Shahjahanpur. The Court proceeded to upholdthe views taken by the Courts in India and maintained the finding thatsecond suit, in relation to the property at Shahjahanpur, was barred byvirtue of Order II Rule 2. It would be profitable to refer to paragraphs45 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 plaintifffails to sue for the whole of the claim which he is entitled to makein respect of a cause of action in the first suit, then he is precludedfrom suing in a second suit in respect of the portion so omitted. Aspointed out in Moonshee Buzloor Ruheem v. ShumsunnissaBegum, (1867) 11 M.I.A. 551.

The correct test in all cases of this kind is, whether the claim inthe new suit is, in fact, founded on a cause of action distinct fromthat which was the foundation of the former suit….

The object of the rule is clearly to avoid splitting up of claimsand to prevent multiplicity of suits”.

46. “every fact which it would be necessary for the plaintiff toprove, if traversed, in order to support his right to the judgment ofthe Court. It does not comprise every piece of evidence which isnecessary to prove each fact, but every fact which is necessaryto be proved.”

I agree with the definition given by the Master of Rolls of acause of action, and that it includes every fact which it would benecessary to prove, if traversed, in order to enable a plaintiff tomaintain his action.

Now the cause of action has no relation whatever to the defencewhich may be set up by the defendant, nor does it depend uponthe character of the relief prayed for by the plaintiff. It refersentirely to the grounds set out in the plaint as the cause of action, 4 AIR (36) 1949 Privy Council 78

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Aor, in other words, to the media upon which the plaintiff asks theCourt to arrive at a conclusion in his favour.”

23. The Privy Council proceeded to summarize the principles inparagraph 61, which reads as follows:

“61. The principles laid down in the cases thus far discussedBmay be thus summarized:

(1) The correct test in cases falling under O.2 R.2, is “whetherthe claim in the new suit is in fact founded upon a cause of actiondistinct from that which was the foundation for the former suit.

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

D(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 defencethat may be set up by the defendant nor does it depend upon thecharacter of the relief prayed for by the plaintiff. It refers….. toEthe media upon which the plaintiff asks the Court to arrive at aconclusion in his favour.”

24. Still further, in paragraph 63, the Court has proceeded toconclude as follows:

“63. The plaintiffs’ cause of action to recover the propertiesFconsists of those facts which would entitle them to establish theirtitle to the properties. These facts are the same with respect toboth properties, these being, that Rani Barkatunnissa was theowner of the properties; that she died on 13[th] February, 1927, thatshe was a Sunni by faith and that they are her heirs under theGMuhammadan law.

Having regard to the conduct of the parties their Lordshipstake the view that the course of dealing by the parties in respectof both properties was the same and the denial of the plaintiffs’title to the Oudh property and the possession of the Shahjahanpur H

property by the defendants obtained as a result of that denialformed part of the same transaction. On this question, the learnedJudges of the High court have expressed their opinion in two placesin their judgment as follows:

“In the case before us the trespass on title or slander of title inthe case so far as the Oudh suit was concerned was not distinctand different either in point of time or in point of character fromthe trespass on possession in the case of the Shahjahanpurproperty…”

Again, it is stated as follows:

“Here in the present case we find that the two trespasses, one onthe Shahjahanpur property and the other on the Oudh propertywere similar in character and formed part of the same transactionand the evidence to prove the facts which it was necessary forthe plaintiffs to prove… was the same and the bundle of essentialfacts was also the same.”

25. At this juncture, we may advert to Order II Rule 2, whichreads as follows:

“2. Suit to include the whole claim

(1) Every suit shall include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action; but aplaintiff may relinquish any portion of his claim in order to bringthe suit within the jurisdiction of 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.

(3) Omission to sue for one of several reliefs – 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.”

26. Order II Rule 2(1) provides that a plaintiff is to include thewhole of the claim, which he is entitled to make, in respect of the causeof action. However, it is open to him to relinquish any portion of the A

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Aclaim. Order II Rule 2 provides for the consequences of relinquishmentof a part of a claim and also the consequences of omitting a part of theclaim. It declares that if a plaintiff omits to sue or relinquishes intentionallyany portion of his claim, he shall be barred from suing on that portion soomitted or relinquished. Order II Rule 2(3), however, deals with theeffect of omission to sue for all or any of the reliefs in respect of theBsame cause of action. The consequences of such omission will be topreclude plaintiff from suing for any relief which is so omitted. The onlyexception is when he obtains leave of the Court. In a recent judgment ofthis Court, the distinction between Order II Rule 2(1) and Order II Rule2(3) has been succinctly brought out in Virgo Industries (Eng.) (P) Ltd.Cv. Venturetech Solutions (P) Ltd.5,. This Court, inter alia, has held asfollows:

“Order 2 Rule 1 CPC requires every suit to include the wholeof the claim to which the plaintiff is entitled in respect of anyparticular cause of action. However, the plaintiff has an option toDrelinquish any part of his claim if he chooses to do so. Order 2Rule 2 CPC contemplates a situation where a plaintiff omits tosue or intentionally relinquishes any portion of the claim which heis entitled to make. If the plaintiff so acts, Order 2 Rule 2 makesit clear that he shall not, afterwards, sue for the part or portion ofthe claim that has been omitted or relinquished. Leave of the CourtEis contemplated by Order 2 Rule 2(3) in situations where a plaintiffbeing entitled to more than one relief on a particular cause ofaction, omits to sue for all such reliefs. In such a situation, theplaintiff is precluded from bringing a subsequent suit to claim therelief earlier omitted except in a situation where leave of the courtFhad been obtained. It is clear from a conjoint reading of theprovisions of Order 2 Rules 2(2) and (3)that the aforesaid twosub-rules of Order 2 Rule 2 contemplate two different situations,namely, where a plaintiff omits or relinquishes a part of a claimwhich he is entitled to make and, secondly, where the plaintiffomits or relinquishes one out of the several reliefs that he couldGhave claimed in the suit. It is only in the latter situations where theplaintiff can file a subsequent suit seeking the relief omitted in theearlier suit proved that at the time of omission to claim theparticular relief he had obtained leave of the court in the first suit.

H5 (2013) 1 SCC 625

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 severalreliefs, 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.”

27. Thus, in respect of omission to include a part of the claim orrelinquishing a part of the claim flowing from a cause of action, theresult is that the plaintiff is totally barred from instituting a suit later inrespect of the claim so omitted or relinquished. However, if differentreliefs could be sought for in one suit arising out of a cause of action, ifleave is obtained from the Court, then a second suit, for a different reliefthan one claimed in the earlier suit, can be prayed for. There are threeexpressions which are found in Order II Rule 2. Firstly, there is referenceto 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 beirrelevant to determine what cause of action means. The reliefs, whichare sought by the plaintiffs, will not be determinative of what constitutescause of action. Cause of action, as explained by the Privy Council inMohammad Khalil Khancase (supra), means the Media through whichthe 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 whichthe Court is invited by the plaintiff to decide the case in his favour. It isalso clear that the cause of action, in both the suits, must be identical. Inorder that it be identical, what matters, is the substance of the matter.

29. In Coffee Boardcase (supra), the respondent purchased coffeeat the export auctions and exported them to certain countries. He filedtwo suits. The Coffee Board had provided for stamps system for exportingof coffee. Complaint of the plaintiff was that the defendants failed tosupply the stamps but there was delay and it resulted in losses. This iswhat the Court held:

“12. The courts in order to determine whether a suit is barredby Order 2 Rule 2 must examine the cause of action pleaded bythe plaintiff in his plaints filed in the relevant suits (see S. Nazeer A

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Ahmed v. State Bank of Mysore; 2007 (11)| SCC 75). Consideringthe technicality of the plea of Order 2 Rule 2, both the plaintsmust be read as a whole to identify the cause of action, which isnecessary to establish a claim or necessary for the plaintiff toprove if traversed. Therefore, after identifying the cause of actionif it is found that the cause of action pleaded in both the suits isidentical and the relief claimed in the subsequent suit could havebeen pleaded in the earlier suit, then the subsequent suit is barredby Order 2 Rule 2.

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16. In the plaint in OS No. 3150 of 1985 being the earlier suit,it has been claimed by the respondent being the plaintiff thereinthat the appellant being the defendants failed to supply ICO stampsfor 268.08 tonnes of coffee purchased by him for export between11-8-1982 and 8-9-1982, in spite of its assurances leading to delayin the shipment of the coffee resulting in losses to the plaintiff. Onthe basis of the same, the respondent claimed for the lossessuffered by him along with damages. The respondent furtheraverred that the cause of action for the suit arose on variousdates when the respondent purchased coffee from the appellantin the auctions held by them on the assurance that the ICO stampswill be supplied by the appellant to them.

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17. The cause of action in the above suit is the failure of ICOto supply stamps to the respondent in spite of its assurances. Therespondent to ensure the success of his claim, was required toprove that on account of the omission of the appellant i.e failureto provide ICO stamps for the coffee purchased by them, therespondent suffered losses.”

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30. The Court went on further hold that plaintiff could only succeedonly by proving failure by the appellant to provide stamps. The groundsof difference in the suit were found to be as regards the amount ofcoffee and the date when the same was purchased.

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31. The respondents sought support from the judgment in Alka6Guptav. Narender Kumar Gupta. The appellants and the respondentsentered into a partnership to run an institute at place “P” in New Delhi.Thereafter, an agreement was entered into to sell the undivided halfH6 (2010) 10 SCC 141

share. The respondents paid only part of the sale consideration whichled to the suit by the appellant for the balance amount. The suit wasdecreed. Thereafter, the appellant filed subsequent suit for rendition ofaccounts for the period from 05.04.2000, which was date on which thepartnership deed was executed till 31.07.2004. According to the appellant,the partnership was one at will and was dissolved. This Court overturnedthe view of the High Court that the suit was barred by Order II Rule 2and by the principles of constructive res judicata. The Court followedthe judgment of this Court in Gurbux Singhv. Bhooralal7, and inter alia,held as follows:

“A Division Bench upheld that decision on the grounds that thesuit was barred by Order 2 Rule 2 CPC and that the appellant hadsettled all her claims with the respondent under the bayanaagreement dated 29.06.2004. The present appeal was then filedby special leave.

The cause of action for the first suit was non-payment of priceunder the agreement of sale dated 29.06.2004, whereas the causeof action for the second suit was non-settling of accounts of adissolved partnership constituted under the deed dated 05.04.2000.Merely because the agreement of sale related to an immovableproperty at R and the business run therein under the name of“Takshila Institute” and the second suit referred to a partnershipin regard to business run at P also under the same name of TakshilaInstitute, it could not be assumed that the two suits related to thesame cause of action so as to attract Order 2 Rule 2 CPC.”

32. As regards the plea of res judicata, here is what theCourt held as follows:- “Plea of res judicata is a restraint on the right of a plaintiff tohave an adjudication of his claim. The plea must be clearlyestablished, more particularly where the bar sought is on the basisof constructive res judicata. The plaintiff who is sought to beprevented by the bar of constructive res judicata should have noticeabout the plea and have an opportunity to put forth his contentionsagainst the same. In the present case, there was no plea ofconstructive res judicata, nor had the appellant-plaintiff anopportunity to meet the case based on such plea. Res judicata AB

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Ameans “a thing adjudicated”, that is, an issue that is finally settledby judicial decision. The principle of constructive res judicataemerges from Explanation IV to Section 11 CPC when read withExplanation III thereof both of which explain the concept of “matterdirectly and substantially in issue”. In view thereof, even though aparticular ground of defence or attack was not actually taken inBthe earlier suit, if it was capable of being taken in the second suitin view of the principle of constructive res judicata. Constructiveres judicata deals with grounds of attack and defence which oughtto have been raised, but not raised, whereas Order 2 Rule 2 CPCrelates to reliefs which ought to have been claimed on the sameCcause of action but not claimed.”

33. In Union of Indiav. H.K. Dhruv8, the Court held, inter alia,as follows:

“4. Having heard the learned Senior Counsel for the appellantas also the respondent appearing in person, we are satisfied thatDno fault can be found with the view taken by the High Court. Inorder to attract applicability of the bar enacted by Order 2 Rule 2CPC, it is necessary that the cause of action on which thesubsequent claim is founded should have arisen to the claimantwhen he sought for enforcement of the first claim before anyEcourt. On the facts found and as recorded in the judgment of theHigh Court and with which we find no reason to differ, the seconddemand raised by the respondent was not available to be made aa part of the claim raised in the first application. The bar enactedby Order 2 Rule 2 CPC is clearly not attracted.”

(Emphasis supplied)

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34. In S. Nazeer Ahmedv. State Bank of Mysore9, the appellant/defendant borrowed some money from the plaintiff’s bank byhypothecating and by mortgaging two items. The money suit filed by thebank was decreed. The proceedings in execution was unsuccessful asGthe bus, which was hypothecated, could not be traced. The bank prayedto proceed against the mortgaged property in execution. It was resistedby the appellant by pointing out that there was no decree on the mortgageand the bank could only attach the properties and could not sell it 8 (2005) 10 SCC 218H9 (2007) 11 SCC 75

straightaway. The said objection was upheld. Thereupon, the bankinstituted the second suit for enforcement of the equitable mortgage.This Court proceeded to take a view that the cause of action in thesecond suit was different. The Court also further drew support fromOrder XXXIV Rule 14 and proceeded to hold as follows:

“14. Applying the test so laid down, it is not possible to come tothe conclusion that the suit to enforce the equitable mortgage ishit by Order 2 Rule 2 of the Code in view of the earlier suit forrecovery of the mid term loan, especially in the context of Order34 Rule 14 of the Code. The two causes of action are different,though they might have been parts of the same transaction. Evenotherwise, Order 34 Rule 14 read with Rule 15 removes the bar ifany that may be attracted by virtue of Order 2 Rule 2 of theCode. The decision of the Rangoon High Court in PyuMunicipality Vs. U. Tun Nyein (AIR 1933 Rangoon 158) reliedon by learned counsel for the appellant does not enable him tosuccessfully canvass for the position that the present suit wasbarred by Order 2 Rule 2 of the Code, as the said decision itselfhas pointed out the effect of Order 34 Rule 14 and in the light ofwhat we have stated above.”

35. Let us first consider the argument of the learned counsel forthe respondent that under Article 109 of the Limitation Act, the period oflimitation commences from the date of possession obtained by alienee,and therefore, the cause of action for the second suit, in respect of thesale deed dated 11.02.2019, would be different from the earlier suit, asin respect of the sale deed of an earlier date, it would have a differentperiod of limitation. We are of the view that, that the period of limitationunder Article 109 is different from the period of limitation in respect ofthe first sale deed, cannot operate so as to exclude the bar under OrderII Rule 2. The principle underlying Order II Rule 2 is that no man can bevexed twice over the same cause of action. All claims and reliefs, whicharise 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 theunderlying object of Order II Rule 2, the fact that at the time when thefirst suit was filed even though the second alienation could be challengedand it stemmed from one single cause of action and not two different A

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Acauses of action, the mere fact that a different period of limitation isprovided, cannot stand in the way of the bar under Order II Rule 2.

36. Now, let us consider the further argument of the learned counselfor the respondent based on Order VII Rule 1 CPC. Order VII Rule 1provides for the particulars to be contained in a plaint. It, inter alia,Bprovides that the facts constituting the cause of action and when it arose,be pleaded. Apparently, the argument of the respondents is having regardto Article 109 of the Limitation Act, the cause of action as provided inArticle 109, would commence from the date of the deed being 11.02.1959,and therefore, it has a different period of limitation as already noted. Itindicates that cause of action, raised in the second suit, is not identicalCwith a cause of action in the first suit. We are of the view that thisargument proceeds on a misapprehension as to what constitutes thecause of action. Cause of action has been explained in many decisions.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 meanDthe media through which Court’s intervention is sought by the plaintiff.

37. What is the legal basis/factual matrix premised on which theplaintiff seeks a decree?

38. In this case, we have noticed the pleadings. The case of theplaintiffs appears to be that the property is ancestral property. Their lateEfather Tikaram was given to wasteful ways and addicted to drink andotherwise. He was given to selling properties. His well-wishers intervenedand partition ensued. However, 8.22 acres falling in Kh.No.189 waskept out of the partition deed. He decided to sell 8.22 acres withoutthere being any legal necessity and without any benefit to the joint family.FThe first part of the transaction, which consisted of two parts, pertainedto sale deed dated 21.01.1959 and that was the subject matter of thefirst suit. At the time of filing of the said first suit, late predecessor-in-interest of the plaintiff, had also executed another sale deed whichconstituted the remaining portion which consisted of the 8.22 acres asalready noticed. The suits contained virtually identical averments in regardGto both the transactions. The first suit was filed in 1963 and the secondsuit filed in the year 1971.

39. We are of the view that in such circumstances, this is a casewhere the plaintiff ought to have included relief in the form of setting H

aside the second sale deed also. This is not a case where the secondsale deed had not been executed when the plaintiff instituted the firstsuit. We are not, for a moment, declaring the effect of the sale deedhaving been executed subsequently to the institution of the suit as we donot have to pronounce on the effect of such a sale. We are only emphasizingthat it was open to the respondent/plaintiff to seek relief in respect of thesecond sale executed by their predecessor-in-interest and what is moreimportant in favour of the same parties (defendants) who are theappellants before us.

40. The High Court has proceeded to reason based on Order IIRule 3. It is open to the plaintiff to combine causes of action. Order IIRule 3 reads as follows:

“3. Joinder of causes of action

(1) Save as otherwise provided, a plaintiff may unite in the samesuit several causes of action against the same defendant, or thesame defendants jointly; and any plaintiffs having causes of actionin which they are jointly interested against the same defendant orthe same defendants jointly may unite such causes of action inthe same suit.

(2) Where causes of action are united, the jurisdiction of the Courtas regards the suit shall depend on the amount or value of theaggregate subject-matters at the date of instituting the suit.”

41. It is undoubtedly true that the law does not compel a litigant tocombine one or more causes of action in a suit. It is open to a plaintiff, ifhe so wishes, however to combine more than one cause of action againstsame parties in one suit. However, it is undoubtedly true that the embargoin Order II Rule 2 will arise only if the claim, which is omitted orrelinquished and the reliefs which are omitted and not claimed, arisefrom one cause of action. If there is more than one cause of action,Order II Rule 2 will not apply. It is undoubtedly also true that Order IIRule 2 manifests a technical rule as it has the effect of posing an obstaclein the path of a litigant ventilating his grievance in the Courts. But asalready noted, there is an equally important principle that no person shallbe vexed twice on the same cause of action.

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A42. That on the same cause of action, the plaintiffs having omittedto sue in respect of the sale deed in question, we would think that barunder Order II Rule 2 would apply. In this view of the matter we do notthink it necessary to pronounce on the question relating to constructiveres judicata. In the light of this, we allow the appeal and set aside thejudgment of the High Court. Parties to bear their respective costs.B

Nidhi Jain

Appeal allowed.

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