Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Saji Koduvath, Advocate, Kottayam.

Introduction.

Order II rule 2 of the Code of Civil Procedure bars splitting of reliefs, claimed in suits, on the same cause of action. The object is two-fold. First, defendants should not be vexed twice for the same cause of action (Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123; and the second, prevent multiplicity of suits (State Bank of India v. Gracure Pharmaceuticals Ltd. , AIR 2014 SC 731; R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455).

“Order II rule 2 : Suits to include the whole claim:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

O.II r.2 is Attracted when a Plaintiff Omitted to Raise All Reliefs in a Previous Suit

It is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as follows:

“6. In order that a plea of a bar under O. 2, r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out
(1) that the second suit was in respect of the same cause of action as that on which the previous suit was based,
(2) that in respect of that cause of action the plaintiff was entitled to more than one relief,
(3) that being thus entitled to more than one relief, the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.”

Several reliefs Arises from the Same Cause of Action should be United

In Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is held as under:

“The principles laid down in the cases thus far discussed may be thus summarized :
the correct test in cases falling under Or. 2, r. 2, is “whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit.” (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum.)
(2.) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Read v. Brown.)
(3.) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey.)
(4.) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey.)
(5.) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff.
It refers “to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” (Muss. Chand Kour v. Partab Singh.) This observation was made by Lord Watson in a case under s. 43 of the Act of 1882 (corresponding to Or. 2, r. 2), where plaintiff made various claims in the same suit.” (Quoted in Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256)

Referring Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is observed in Raman Ittiyathi VS Pappy Bhaskaran, AIR 1990 Ker 112, that there may be cases in which the same cause of action might give rise to several reliefs. In such cases also, all these reliefs should be united in the same suit. If not, the bar would apply. But in such cases, he could obtain leave of Court and reserve one or more reliefs for a separate suit. The bar would apply only if the leave of Court is not obtained. Even then the whole claim will have to be included, otherwise the bar would apply.

O.II, R.2 Does Not Require All Causes of Action Must be Combined in One Suit

It is further pointed out in Raman Ittiyathi v. Pappy Bhaskaran, AIR 1990 Ker 112, that Order II, r.2 does not require that when a transaction or right gives rise to several causes of action they should all be combined in one suit, or that the plaintiff must lay his claim alternatively in the same suit for these different causes of action. What is required is that the cause of action cannot be split up to sue for one part in one suit and another part in another suit.

If Claim is Omitted or Limited, Bar to Seek Recover the Balance

If a cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance. (Sidramappa VS Rajashetty, AIR 1970 SC 1059; Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112).

Should Omission Be “Intentional”

Order II rule 2 says:

Relinquishment of claim in Order II rule 2 is attracted where a plaintiff
omits to sue in respect of any portion of his claim, and
intentionally relinquishes any portion of his claim.

It is clear that the relinquishment must be “intentional”. However, “omission” stated in Order II rule 2 need not be “intentional”, as worded in this rule. Apparently, it is immaterial whether the omission was by neglect, oversight, mistake, fraudulent, dishonest or intentional. But, it is pointed out in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112 that in the following decisions it is held that in order that the bar should apply the plaintiff must have been aware of or conscious about the omitted relief, and that if the omission was due to lack of knowledge or awareness of the cause of action or the relief, the bar cannot apply.

Nihal Singh v. Mt. Najuban, AIR 1923 All 230;
Yarlagadda Pakeerayya v. Puligadda Suryanarayana, AIR 1927 Mad 791;
Thotappalle Sarvabhotla Venkata Chandikamba v. Kunala Indrakanti Veswanadhamayya, AIR 1936 Mad 699;
Binya Bai v. Ganpat, AIR 1918 Nag 158

“Cause of action” chosen, or that ‘formed the foundation’ of suit, is the criterion

Pointing out that that the term “cause of action” is not defined in the CPC, it has been explained by the Apex Court, in Kandimalla Raghavaiah v. National Insurance Co., AIR 2010 SC Supp 880, that “cause of action” has different meanings in different contexts, though generally, it is described as “bundle of facts”; and that the plaintiff is entitled to the relief prayed for, if they are proved. In this decision the Apex Court also observed that “Cause of action” means the cause of action for which the suit is brought; and that “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit.

On a scrutiny of the Supreme Court decision it is clear that, in a given set of facts, a plaintiff can choose the cause of action for an order of injunction, leaving apart causes of action for specific performance.

O.II r.2 Bar is Attracted Only When Inclusion of Relief is ‘Obligatory’, and ‘Not Optional’.

In other words, subsequent reliefs ‘Could not have been Claimed’ in the Former Suit.

In Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, it is held by the Apex Court, analyzing O.II r.2, as follows:

“6. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”

Relying on Gurbux Singh v. Bhooralal it is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that O.II r.2 bar is attracted when the inclusion of the relief in the previous suit was not only possible, but also its inclusion was obligatory and not optional.

For example, the second suit for recovery of possession is not barred when title was found in the earlier suit; and the relief of injunction was denied on the ground that defendants are in possession. The relief of recovery could not have been claimed on the cause of action alleged in the previous suit (though optionally alternative relief of recovery could have been claimed). (See also: K. Palaniappa Gounder v. Valliammal, AIR 1988 Mad 156, Bominic Animal v. Muthusamy, 1986 TNLJ 117.)

Relief Claimed must have been ‘Available’ in the Earlier Suit

To attract bar under Order II rule 2 the plaintiffs must have relinquished or intentionally omitted to sue the reliefs, in the earlier suit, claimed subsequently. The phrase “omits to sue” denotes that the impugned reliefs in the subsequent suit must have been ‘available’ at the time of filing the first suit. It is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that if the relief claimed in the subsequent suit was not available on the facts alleged to support the fight to relief, namely the cause of action, in the previous suit, there was no bar under O.II, R.2; and that the question was whether the relief in respect of which the bar was pleaded was available on the cause of action pleaded in the earlier suit. (See also: Swaran Singh v. Jaspal Singh, 2019 0 Supreme (P&H) 1934; State Bank of India v. Gracure Pharmaceuticals Ltd. AIR 2014 SC 731)

In Union of India v. H.K. Dhruv (2005) 10 SCC 218, the Apex Court held as follows:

“4. .. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any court.”

If relief of specific performance was available, when injunction suit was filed, there is bar.

In Vipan Kumar v. Asha Lata Ahuja, 2009-3 CivCC 737 (P&H); 2009-3 Law Herald 1697; 2010-7 RCR (Civ) 1317, observing that if on the date of filing suit for injunction, the relief of specific performance was available, then the vendee was not entitled to file a suit for specific performance of agreement, as it would be barred under Order 2 Rule 2 of the CPC.

Similar view is expressed in Suresh Chaudhary v. Rakesh Singhal, 2011-1 PLR 331 (P&H) also. It was observed that once it was held that the plaintiff should have filed suit seeking relief of specific performance as the main relief at the time he filed first suit for injunction, then the suit for recovery of earnest money and damages, also could not have been subsequently obtained. It will be barred by Order 2 Rule 2(3) CPC.

The Madras High Court, in Kumarayee Ammal v. M. Ramanathan 2007-4 LW 319; 2007-4 MLJ 1145 held that the real test should be whether the causes of action now urged for the latter suit, were available at the time of the filing of the first suit or not. In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. The High Court relied on the following observation in Sidramappa v. Rajashetty, AIR 1970 SC 1059, where the Supreme Court has held as under:

“The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.”

The Madras High Court also relied on Bombay High Court in Gajanan R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455. The Bombay High Court has held as under:

“6. The learned counsel for the appellant vehimently urged that the present suit of the plaintiff is to claim specific performance of the agreement coupled with the relief of possession, but the earlier suit was for injunction simpliciter. In this way, it was sought by to be urged that plaintiff cannot be prevented by the bar of Order 2, Rule 2 of the C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment because in the eye of law, while considering the bar of Order 2, Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere comparison of the reliefs of variance in few allegation here or there would have no relevance. On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as the present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed.
In this regard, time and again, this Court as well as the Apex Court have decided this issue on many occasions. The material principles laid down in various rulings can be summarised thus-
“(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that which was the foundation for the former suit.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.
(3) If the evidence to support the two claims is different then the cause of action are also different.
(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the Court to arrive at a conclusion in his favour.”

Pleading and Issue Necessary

In Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810, it is held as under:

“… From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits……”

The Supreme Court in Alka Gupta Vs. Narender Kumar Gupta, (2010) 10 SCC 141 held as under:

“A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the defendant to that effect and in the absence of an issue thereon.”

Does Order II Rule 2 ‘Bar’ Apply to ‘Amendments’?

In Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256, it is held that the bar under Order II Rule 2 of the CPC would not apply to an application for amendment of a suit. The argument that the principle of constructive res judicata would apply was also rejected, for there would be no formal adjudication between the parties after full hearing. The apex Court approved the decision of the High Court of Delhi in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 DLT 570.

It is observed in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 Del LT 570, that Order II Rule 2 (2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. It is pointed out that Order II Rule 2 CPC enacts a rule barring a second suit and it sets to operate if there was (i) identity of cause of action in the former and subsequent suits, and (ii) formal adjudication between the parties after full hearing in the former suit. Similarly, Order II Rule 2(3) CPC also directs – where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the court, one can sue for such reliefs. In this decision it is also clarified that where the claim or reliefs in the second suit were based on a distinct cause of action, Order II Rule 2 CPC would have no application; and that the field of amendment of pleadings falls far beyond its purview.

From the words that ‘bar’ under Order II Rule 2 (‘shall not afterwards sue in respect of the portion so omitted or relinquished’) it is clear that the ‘bar’ applies to subsequent “suit” alone and not to an amendment in the same suit. (Twilight Properties Pvt. Ltd. VS Supratik Bhattacharjee, 13 Nov 2019, 2019 0 Supreme(Cal) 776.)

Order II Rule 2 ‘Bars’ Reliefs; Res Judicata deals with ‘grounds of attack‘

As regards the plea of res judicata, it is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as under:

“Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In the present case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. Res judicata means “a thing adjudicated”, that is, an issue that is finally settled by judicial decision. The principle of constructive res judicata emerges from Explanation IV to Section 11 CPC when read with Explanation III thereof both of which explain the concept of “matter directly and substantially in issue”. In view thereof, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed.”

NO Res Judicata on a Finding on Title in an Earlier Injunction Suit

In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, The Court proceeded to hold as under:

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342)

When “Cause of Action” in a Subsequent Suit for Possession Stand Distinct

The Supreme Court held in Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123, as under:

“The first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court’s assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court’s assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit.”

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
Order II Rule 2 bars to – “sue for any relief omitted“.
Sec. 10 CPC (Res subjudice) begins as – “No Court shall proceed with the trial of any suit“.

Res Judicata and Estoppel

Though Res Judicata is called ‘estoppel by judgment‘, res judicata differs from estoppel. Res Judicata arises from the decision of an earlier court. It ousts the jurisdiction of the court to conduct trial of the already adjudicated matters. Estoppel arises from the acts of parties and it shuts the mouth of a party. Res Judicata bars multiplicity of suits. Estoppel bars multiplicity of representations.

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Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

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