Order II Rule 2 CPC Doesn't Bar Second Suit For Relief Which Was Barred At The Time Of First Suit : Supreme Court

The Supreme Court observed that when the plaintiff couldn't seek the required relief in the first suit, Order II Rule 2 CPC would not bar him from seeking such relief made available to him by happening of an event, by filing a subsequent suit.“when it is not possible for the plaintiff to obtain a particular relief in the first instance but such relief becomes available to him on the happening of a subsequent event, post the institution of the first suit, then the bar under Order II Rule 2 would not stand in the way of the plaintiff who has instituted a subsequent suit for claiming those reliefs. It can be said that the occurrence of that subsequent event gives rise to a fresh cause of action to the concerned plaintiff for claiming certain reliefs which he was otherwise prevented from claiming.”, the Court said."There may arise a situation where the plaintiff may be entitled to a relief but such a relief was not available at a certain point in time. In other words, that obtaining such a relief was impossible due to the circumstances which existed during the institution of the first suit. It is our opinion that, in such scenarios, Courts must give such an interpretation to the principles under Order II Rule 2 that is not bogged down by mere technicalities.", the Court added.A bench comprising Justice JB Pardiwala and Justice R. Mahadevan heard a case where a subsequent suit, based on a different cause of action from the same transaction, was dismissed under Order II Rule 2 CPC for not including the whole claim in the first suit. Respondent No. 1 (plaintiff in the original suit) had agreed to sell with Respondent No. 2 (defendant in the original suit) regarding the suit property. When Respondent No. 2 sold the same property to the Appellant, Respondent No. 1 filed the first suit seeking a permanent injunction against alienation. Order II Rule 2 CPC required Respondent No. 1 to include the reliefs of specific performance of the agreement to sell and recovery of possession in the initial suit. However, due to a government ban on executing sale deeds in the village, these reliefs couldn't be sought then. After the ban was lifted, Respondent No. 1 filed a second suit seeking these additional reliefs. Respondent No. 1 argued that the subsequent suit arose from a fresh cause of action triggered by the lifting of the government ban, as these reliefs couldn't have been claimed earlier. The trial court invoked Order II Rule 2 of the CPC and declined to decree Respondent No. 1's suit for specific performance of the sale agreement. The court reasoned that the plaintiff had failed to include all claims and reliefs in the earlier suit, despite being aware that Respondent No. 2 had executed another sale deed for the same property before the filing of the first suit, which sought a permanent injunction. Aggrieved by the trial court's decision, the plaintiff filed an appeal before the Madras High Court, which allowed the appeal. Following this, the appellant (subsequent buyer) preferred an appeal before the Supreme Court. Affirming the High Court's decision, the judgment authored by Justice Pardiwala observed that the trial court overlooked the fact that the relief of specific performance of an agreement to sell as well as recovery of possession wasn't claimed in the first suit seeking because of the government order restricting the execution and registration of sale deed. According to the Court, the lifting up of the ban order on registration of the sale deed triggered a fresh cause of action for Respondent No.1 (distinct from the initial cause of action) to claim additional relief via the institution of the subsequent suit. It means that when the reliefs claimed in the subsequent stands can't be enforced because of the government ban, the lifting up of the ban revived the claim of such relief, which would not be hit by the provision of Order II Rule 2 CPC.In this regard, reference was drawn to the case Rajasthan High Court's case of Ramjilal v. Board of Revenue, Rajasthan reported in AIR 1964 Raj 114 wherein the High Court had opined that Order II Rule 2 does not require that a person must seek all the remedies to which he may be entitled to even though it would be impossible for him to obtain the remedy from the opposite party.Also, the Court approved the position taken by the Allahabad High Court in National Security Assurance Company Ltd. v. S.N. Jaggi reported in AIR 1971 All 421 that a subsequent suit in respect of a claim which was barred at the time of the earlier suit but revived later on by an enactment would not be hit by the provisions of Order II Rule 2.Applying the aforesaid dictum to the present case, the Court observed :"Herein, it was not possible for the plaintiff to obtain the relief of possession from the respondent no. 2 in his initial suit since the respondent no. 2 himself was put in actual possession of the property much after the institution of the first suit. In such circumstances, it could ...

Order II Rule 2 CPC Doesn't Bar Second Suit For Relief Which Was Barred At The Time Of First Suit : Supreme Court

Yash Mittal

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