Order II Rule 2 CPC : When Does Relinquishment Of Claim Bar Second Suit?

No one should be troubled more than once for the same cause of action - this is the underlying principle of Order II Rule 2 of the Code of Civil Procedure.The general rule is that a suit should include the whole of the claim which a plaintiff is entitled to make in respect of a cause of action. This is embodied in Order II Rule 1. However there is no such compulsion, and the plaintiff is at liberty to relinquish or omit any portion of such claim. But there is a consequence. The plaintiff will be barred from filing another suit for the portion of the claim which was relinquished or omitted. Order II Rule 2 speaks of this bar.The impact of the provision is succinctly explained in the illustration given to it in the Code itself :"A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the, years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907"The object of O.2 R.2 of the Code is twofold: First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. Identical cause of action in both suitsThe keyword in the provision in "cause of action", as the bar is applicable to claims arising out of the same cause of action.In a 1949 case dealt with by the Privy Council, two suits for recovery of possession were filed in respect of two different properties. The second suit was held to be barred, as the first suit did not include the claim over the second property. The plaintiff argued that since the properties are different, the causes of action were also different. This was rejected on the reasoning that the claim over both the properties were based on the same set of facts. In other words, the plaintiff had to plead and prove the same set of facts in both the suits to establish title over both the properties. Since the "bundle of essential facts" to prove title in both the cases were the same, the claim over the second property was held to be arising out of the same cause of action of the first suit ( See Mohammad Khalil Khan v Mehbub Ali Mian AIR (36) 1949 PC 87)The Privy Council in this case summarised the principles as follows :(1) The correct test in cases falling under O.2 R.2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.(3) If the evidence to support the two claims is different, then the causes of action are also different.(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. In Gurbux Singh v. Bhoora Lal [AIR 1964 SC 1810 it was explained as follows :: "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 latter suit is based there would be no scope for the application of the bar." When causes of action are different, bar will not applyThe case Alka Gupta v Narendar Kumar Gupta (2010) 10 SCC 141 presents a situation where the Court held that Order 2 Rule II did not apply.There, the parties were partners of a partnership firm which ran an institute. In 2004, one of the partners sold her undivided share in the property where the institute was located to the other partner. For claiming the balance of sale consideration in respect of that sale, a suit was filed in 2004.After that suit was decreed, another suit was filed in 2007 for rendition of accounts of the partnership firm for the period 2000 to 2004, on the ground that the partnership was dissolved by implication in 2004. The trial court held that suit to be hit by Order 2 Rule 2. The High Court too expressed the same view and said that the claim for settling of accounts ought to have been raised in the first suit itself.The Supreme Court did not agree. It said :"The cause of action for the first suit was non - payment of price under the agreement of sale dated 29.6.2004, whereas the cause of action for the second suit was non - settling of accounts of a dissolved partnership constituted under deed dated 5.4.2000. The two causes of action are distinct and different. O.2 R.2 of the Code would come into play only when both suits are based on the same cause of action and the plaintiff had failed to seek all the...

Order II Rule 2 CPC : When Does Relinquishment Of Claim Bar Second Suit?

Manu Sebastian

The correct test in cases falling under O.II R.2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit".

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