Whether the court can grant leave to file second suit?

15. Order II, Rules 2, 3 and 4 of the Code read as under:

2. Suit 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.

3. Joinder of causes of action

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

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

4. Only certain claims to be joined for recovery of immovable property No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except--

(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held ; and

(c) claims in which the relief sought is based on the same cause of action : Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

16. In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order II, Rule 3 provides for joinder of causes of action. Order II, Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefore no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit where for a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared.

17. If the respondent intended to claim damages and/ or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly.

Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly.

21. In England, the Court of Equity exercises jurisdiction in equity. The courts of India do not possess any such exclusive jurisdiction. The Courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law. If exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field.

22. A court of law cannot exercise its discretionary jurisdiction de'hors the statutory law. Its discretion must be exercised in terms of the existing statute.

23. We, therefore, are of the opinion that the High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration. In any event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefore. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4341 of 2007.

Decided On: 18.09.2007

Shiv Kumar Sharma Vs.  Santosh Kumari

Hon'ble Judges/Coram:

S.B. Sinha and H.S. Bedi, JJ.

Author: S.B. Sinha, J.

Citation: MANU/SC/7929/2007. (2007) 8 SCC 600.

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Can the court grant a conditional decree for specific performance of contract if vendor can not execute sale deed without permission of competent authority?

  It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, and amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent. {Para 4}

SUPREME COURT

K. RAMASWAMY AND B.L. HANSARIA, JJ.

K. Raheja Constructions Ltd. S Vs. Alliance Ministries And Others

Spl. Leave Petn. (Civil No. 9397 of 1995

1st May, 1995

Citation: 1995 ALLMR ONLINE 586 (S.C.)

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Can the court permit an amendment of plaint to add a prayer for specific performance of the contract if that relief is time-barred?

 Apart from this, a perusal of the original plaint and the proposed amendment filed on behalf of the  petitioner would show that the cause of action for the proposed prayer for grant of decree of specific performance and declaration was very much available to the petitioner when he filed the suit for permanent injunction on 11.09.2013. Having failed to incorporate prayers for aforesaid reliefs and restricting the suit only for the relief of permanent injunction, clearly shows that the attempt subsequently made by the petitioner by filing application for amendment on 24.01.2017 was barred by operation of Order 2 Rule 2 of the C.P.C. It is clear that the petitioner was now seeking to change the very nature of the suit, which was impermissible. {Para 12}

16. In the case of K. Raheja Constructions Ltd. .vs. Alliance Ministries (supra) referred to in the above quoted judgment of the Hon'ble Supreme Court, it was held by the Hon'ble Supreme Court as follows:-

"4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing fo the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds  set out, would defeat the valuable right of limitation accrued to the respondent."

17. The position of law as elucidated in the aforesaid judgments relied upon by the learned counsel for the respondents shows that in the present case also prayers sought to be added by the petitioner by way of amendment were not only barred by limitation under Article 54 of the Limitation Act, 1963, but also by operation of Order 2 Rule 2 of the C.P.C.

18. Insofar as the contention raised on behalf of the petitioner that relief of specific performance could have been sought by the petitioner only after the competent authority had granted regularisation under the provisions of the Gunthewari Act, as noted by the Hon'ble Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit .vs. Ramesh Chander (supra), nothing prevented the petitioner to make a prayer for decree of specific performance when the suit for permanent injunction was filed on 11.09.2013. The Court would certainly have the power to pass a decree of specific performance in favour of the petitioner, which would be a conditional decree, subject to the competent authority in the present case granting order of regularisation under the provisions of the Gunthewari Act. Therefore, the said submission raised on behalf of the petitioner is also untenable.

Bombay High Court

Mangesh S/O Madhukar Giri vs Lata D/O Ganpatrao Korde And ... on 23 January, 2019

Bench: Manish Pitale

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Whether the right of the landlord to get rent accrued during the pendency of the first suit will be barred by res judicata if the landlord fails to claim said rent by amending plaint?

 (g) Rent and Recurring Cause of Action:

48. The Corporation and the Firm maintain that the Owner's claim has been barred by res judicata. I reckon what applies, if ever, here is Order 2, Rule 2 of CPC. And the provision reads:

2. Suit 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 and 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.

49. The illustration exemplifies what amounts to relinquishment of part of claim. A lets a house to B at a yearly rent of Rs. 1,200. 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. He shall not afterwards sue B for the rent due for 1905 or 1907.

50. That is, the suit was in 1908. A's cause of action got crystalised on the date of his filing the suit. His right was to recover the rent arrears accumulated by then--for 1905, 1906, and 1907. The cause for his action was the B's default. The default was up to the date of his going to the Court, until the end of 1907. In the illustration, by the time A filed the suit, the rent for 1906 and 1907 was also due. Yet A did not seek to recover what he had been entitled to by then. The rent for 1906 and 1907, I may stress, was not the rent accumulated pending the suit.

51. In other words, A's suit in 1908 must have included the whole claim which A was entitled to make by then. But A sued for the rent of only 1906. In that suit, as A did not seek the rent for 1905 and 1907, it amounted to his relinquishing that portion of the claim. Law treats that as an intentional relinquishment. So, he shall not afterwards sue for that relinquished or omitted portion. The reckoning point, I must say, is the date of suit filing.

52. Looked from another angle, in the illustration, we may note that the suit was filed in 1908, but the rent for that year was not included because it was not due by then. That means a future arrear cannot provide cause of action. What should happen to the rent of 1908?

53. We cannot presume that a suit gets decided there and then. It runs its course; in the meanwhile, many years may pass. Let us assume that the case in the illustration took six years to conclude, after running its course through appellate and revisional channels. So it ended in 1914. If we accept the Corporation's argument, then every year or at least intermittently the owner should have amended his pleadings and kept adding the rent for the years passing by until the suit ended. This method adopted, the court fee gets paid whenever there is an amendment and, eventually, the arrears adding up, even the pecuniary jurisdiction may change. So halfway through the trial Court should abandon the case and transmit it to another court. A chimerical concept of procedural law. On the contrary, once the cause of action crystallizes and issues are struck, the parties go to the trial on that basis. Thus, for adjudicatory purposes, the cause of action stands frozen.

54. True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.

55. Indeed, default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action. Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action. Here, the first suit--RCS No. 754 of 1977--concerns the rent from 1.4.1973 to 30.4.1977. The second suit--RCS No. 149 of 1998--concerns the later period.

56. I, therefore, conclude that the Owners have not lost their right to sue the Corporation and the Firm merely because the default occurred when another suit was pending. Pithily put, if there is no completed cause of action, there is no right for the party to sue. If the completed cause of action has many aspects or facets, but the party sues only on a few, the rest remain relinquished or abandoned. But on a completed cause of action if a party sues and pending those proceedings, there is, temporally speaking, recurrence of the same cause of action, it provides an independent cause of action. All these rights to sue are subject to one obvious limitation: The Statute of Limitation.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 561 of 2018 and 562 of 2016 in Regular Civil Appeal No. 237 of 2005 in Regular Civil Suit No. 149 of 1998

Decided On: 27.04.2020

 K.B. Lahoti and Company and Ors. Vs. Champalal Vithuram Jajoo and Ors.

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Whether court can suo motto decide plea of O 2 R 2 of CPC?

 The plea of bar under Order II Rule 2 of the CPC is a technical plea which has to be pleaded and satisfactorily established. In R. A. Oswal v. Deepak Jewellers and Ors.3, this Court held that if the plea of bar under Order II Rule 2 is not taken, the Court should not suo moto decide the plea. Moreover, in Dalip Singh v. Mehar Singh Rathee and Ors.4, this Court held that the plea cannot be raised before this Court if not raised in the High Court.{Para 93}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3574 OF 2009

B. SANTOSHAMMA & ANR. Vs D. SARALA & ANR. 

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Supreme Court: after 2018 amendment in the Specific Relief Act, the court must grant specific performance of a contract

The relief of specific performance of an agreement, was at all

material times, equitable, discretionary relief, governed by the

provisions of the Specific Relief Act 1963, hereinafter referred to as S.R.A. Even though the power of the Court to direct specific

performance of an agreement may have been discretionary, such

power could not be arbitrary. The discretion had necessarily to be exercised in accordance with sound and reasonable judicial principles.{Para 67}

68. Section 10 of the S.R.A. as it stood prior to its amendment

with effect from 1.10.2018 provided:-

“10. Cases in which specific performance of contract

enforceable.- Except as otherwise provided in this Chapter,

the specific performance of any contract may, in the

discretion of the court, be enforced-

69. After amendment with affect from 1.10.2018, Section 10 of

the S.R.A. provides:

10. Specific performance in respect of contracts.-

The Specific performance of a contract shall be enforced

by the court subject to the provisions contained in subsection

(2) of section 11, section 14 and section 16.

70. After the amendment of Section 10 of the S.R.A., the words

“specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to ...”. The Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3574 OF 2009

B. SANTOSHAMMA & ANR. Vs D. SARALA & ANR. 

Author: Indira Banerjee, J.

Dated: SEPTEMBER 18, 2020

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How order 2 R 2 of CPC applies to arbitration proceeding?

Supreme Court, in Dolphin Drilling Ltd. Vs. Oil & Natural Gas Corporation Ltd. MANU/SC/0120/2010 : (2010) 3 SCC 267 held that the words "all disputes" in arbitration clause can only mean "all disputes that may be in existence when the arbitration clause is invoked and one of the parties to the agreement gives the arbitration notice to the other"; it cannot be held that once the arbitration clause is invoked, the remedy of arbitration is no longer available in regard to other disputes that might arise in future. We may add, that depending on nature of the agreement or obligations to be performed thereunder, it is not necessary that all disputes between parties arise at one point of time. This Court in National Highways Authority of India Vs. ITD Cementation India Ltd. MANU/DE/6011/2012 : 197 (2013) DLT 650 held that in large scale projects, it is not unheard that different facets of the project constitute subject matter of separate references and in the context of large scale works contracts, there cannot be any rigid application of the principles of Order II Rule 2 of the CPC unless it is demonstrated that prejudice has been caused to either party as a result of such non-adherence. We may further add that even if commencement of arbitration with respect to disputes which have arisen, can await culmination of full performance of the agreement, to commence arbitration at one time only, also with respect to other dispute which may arise, the claim earliest arising may by then become barred by time. Order II Rule 2 of the CPC also envisages successive causes of action.

IN THE HIGH COURT OF DELHI

FAO (OS) (COMM) 60/2020 and CM No. 10461/2020

Decided On: 07.07.2020

 Hero Wind Energy Private Ltd. Vs.   Inox Renewables Limited and Ors.

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Whether petition for interim measures U/S 9(3) of Arbitration Act is maintainable before the court if Arbitration tribunal is in existence from the same agreement?

 In our opinion, the words 'Arbitral Tribunal' in Section 9(3) of the Act have to take colour from all the said provisions and thus have to be interpreted as Arbitral Tribunal constituted to adjudicate the disputes which have arisen and been referred to arbitration and with respect whereto Arbitrators have been appointed and notified of their appointment. Much prior to the incorporation of Sub-Section (3) in Section 9, Supreme Court in Firm Ashok Traders Vs. Gurumukh Das Saluja MANU/SC/0026/2004 : (2004) 3 SCC 155 held, that under the 1996 Arbitration Act, unlike the predecessor Act of 1940, the Arbitral Tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures; the need for Section 9 of the Act, inspite of Section 17 having been enacted, is that Section 17 of the Act would operate only during the existence of the Arbitral Tribunal and its being functional; during that period, the power conferred on the Arbitral Tribunal under Section 17 of the Act and the power conferred on the Court under Section 9 of the Court may overlap to some extent but so far as the period pre and post the arbitral proceedings is concerned, the party requiring an interim measure shall have to approach only the Court. Seen in this light, the Arbitral Tribunal constituted with reference to the disputes which had earlier arisen, even though from the same agreement, cannot be the Arbitral Tribunal within the meaning of Section 9(3) of the Act even if were to be of the same composition. Section 9(3) of the Act does away with the jurisdiction of the Court with respect to interim measures also, once the Arbitral Tribunal is constituted. However, if a separate Arbitral Tribunal even if of same composition is to be constituted for disputes arising out of successive causes of action, Arbitral Tribunal constituted for adjudication of disputes arisen from a earlier cause of action cannot be the Arbitral Tribunal constituted for the disputes arising from a subsequent cause of action and qua which interim measures are sought.
32. We are thus unable to agree with the view taken by the learned Single Judge, of the petition of Hero being barred by Section 9(3) of the Act.

IN THE HIGH COURT OF DELHI

FAO (OS) (COMM) 60/2020 and CM No. 10461/2020

Decided On: 07.07.2020

 Hero Wind Energy Private Ltd. Vs.   Inox Renewables Limited and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw and Asha Menon, JJ.

Author:  Rajiv Sahai Endlaw, J.

Citation: MANU/DE/1349/2020

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When subsequent suit for specific performance of contract will be barred by O 2 R 2 of CPC?

The rationale underlying in Order 2 Rule 2 has been dealt with in several judgments including in the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian MANU/PR/0050/1948 : (1947-48) 75 IA 121, 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 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 order to attract the applicability of the bar enunciated Under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arisen to the Plaintiff when enforcement of the first claim was sought before the Court.

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

10. The object behind the enactment of Order 2 Rules 2(2) and (3) Code of Civil Procedure is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the Defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a Plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons.

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

12. In the present case, the earlier suit for injunction was instituted on 30 October 1996. Paragraph 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26 October 1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the Defendant to perform the contract. Indeed, the Plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26 October 1995. Under the agreement dated 26 October 1995, time for completion of the sale was reserved until 25 October 1996. Notice of performance was issued on 11 October 1996 to which the Defendant had replied on 13 October 1996. The cause of action for the suit for specific performance had arisen when the Plaintiff had notice of the denial by the Defendant to perform the contract. On 30 October 1996 when the suit for injunction was instituted, the Plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which paragraph 2 of the plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the Plaintiff omitted to sue for specific performance. This is a relief for which the Plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar Under Order 2 Rule 2(3) would stand attracted.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9065 of 2019 

Decided On: 27.11.2019

 Vurimi Pullarao  Vs.  Vemari Vyankata Radharani and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Ajay Rastogi, JJ.

Citation: AIR 2020 SC 395

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Whether it is necessary to file pleadings of previous suit for proving bar of O 2 R 2 of CPC?

Regarding the plea on the basis of Order 2 Rule 2 CPC it need only be noticed that Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, (1964) 7 SCR 831 held that the plea of a bar under Order 2 Rule 2 CPC being a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It was held 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.

"6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil 10 of 16 Procedure Code should succeed the defendant who raises the plea must make out; (i) 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. 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 latter 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. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable.

Punjab-Haryana High Court

Gurmit Kaur & Ors vs Harpal Singh on 21 February, 2019

                   RSA No.2719 of 2013 (O&M)                   


  Coram:      Hon'ble Mr. Justice Harinder Singh Sidhu

Citation: AIR 2019(NOC)731(P&H)

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Whether subsequent suit for mesne profits will be barred by O 2 R 2 of CPC?

"Taking into consideration the changes introduced by the present Civil Procedure Code to the old law, there is nothing to indicate that the changes have taken away the force of the old decisions hereinbefore referred to. A claim for mesne profits is not a claim under the same obligation compelling a trespasser to restore possession. A claim for mesne profits is also not based on the same cause of action as the claim for possession. A person may be in wrongful possession but even then may not be obliged to pay mesne profits if he has not received or might not have received with ordinary diligence profits from the property in wrongful possession. The liability to pay mesne profits arises from the profits a person has or might reasonably have made by his wrongful possession. Thus the obligation to pay mesne profits arises from a cause of action completely different from the obligation to restore possession of the immovable property to the rightful owner."

Although the said decision was concerned with whether the second suit was barred under Order II Rule 2 of the CPC, the court did not accept the contention that causes of action for recovery of possession and for mesne profits are the same. The court rejected the contention that where a claim for mesne profits was not included in a previous suit for possession of the property, a second suit for such mesne profits was barred under Order II Rule 2 of the CPC. The view taken by a learned Judge of this Court on 27th May, 1958 remains good law even after sixty years, despite numerous amendments to the CPC.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 102 of 2018 and C.S. No. 152 of 2017

Decided On: 30.01.2019

 Bahubali Promoters Private Limited  Vs.  Shyam Sel & Power Limited

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Whether landlord will be barred from filing eviction suit on ground of arrears of rent if he had previously filed eviction suit on ground of bonafide need?

As regards the submission pertaining to Order II Rule 2 of the CPC, the Courts below have correctly analyzed the said provision and applied it to the facts of the present case. A landlord is entitled to seek a decree of eviction against the tenant under various provisions specified in the aforesaid Act. The causes of action available for the landlord under the various statutory provisions of the said Act are clearly distinct and separate. Therefore, it cannot be said that when the landlord filed the suit for eviction on the ground of bona fide need, he ought to have included all the grounds for eviction that may have been available to him. In fact, the cause of action for arrears of rent specifically arises only when the contingencies contemplated in Section 15 of the said Act occur. Therefore, in a given case, although the landlord may claim that a cause of action on the ground of bona fide need has accrued to him, it is not necessary that at the very same time a cause of action for grant of decree of eviction on the ground of arrears of rent has arisen. The petitioner was not justified in claiming that failure on the part of the respondents to invoke the ground of arrears of rent in the earlier suit filed for grant of decree on the ground of bona fide need, was fatal and that subsequent suit could not have been filed. The Courts below have correctly applied the provision of Order II Rule 2 of the CPC to reject the said contention raised on behalf of the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 279 of 2016

Decided On: 11.09.2018

Ataullahkhan  Vs. Kernath Jaywantrao Nagargoje 

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) RCR(Rent) 531

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Whether bar of O 2 R 2 of CPC is applicable if cause of action is different?

Though substantial question of law has not been framed in respect of point raised under Order II Rule 2 of Code of Civil Procedure, it can be cursorily sated that, the earlier suit was restricted to movable property and that too it was withdrawn. Here the claim of the plaintiffs is that, even after death of Walibai the property would devolve on them as heir of Walibai. Walibai expired in 1979 and the suit has been filed on 23-11-1979. Therefore, it is neither hit by limitation nor under Order II Rule 2 of Code of Civil Procedure. A fresh cause of action can be said to have arisen for the plaintiffs after death of Walibai and since they are claiming to be the heir of Walibai under Section 15 of the Hindu Succession Act, 1956. The suit properties were devolved on Walibai through her husband. Though as per the contention of the defendant No. 1, Walibai had left Will but she herself had not pressed for that claim by pursis Exhibit 70 then definitely the said properties, of which Walibai had become full owner in view of Section 14 of the Hindu Succession Act, 1956, would revert back to the heirs left through husband. Therefore, when the cause of action is different, there is no question of bar under Order II Rule 2 of Code of Civil Procedure. Hence, the substantial question of law has been answered as.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 390 of 2005, 

Decided On: 24.04.2019

 Tejibai Vs.  Mohanlal and Ors.

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Whether a party can be permitted to adduce additional evidence at appellate stage if he has not adduced evidence at trial court?

Before considering the merits of the case I would also like to deal with the application No. 8740 of 2007 filed under Order XLI Rule 27of Code of Civil Procedure. No doubt it appears that, before this Court an application was filed when it was first appeal (First Appellate No. 197 of 1983) and the civil application was C.A. No. 587 of 1994, yet it can be seen that even the present application Civil Application No. 8740 of 2007 should be within the parameters of Order XLI Rule 27 of Code of Civil Procedure. A specific issue was framed before the trial Court that, "Does defendant No. 1 prove that by Will dated 10-12-1978 deceased Walibai widow of Bhoja Natha made bequest of the suit properties in her favour?". It can be seen from the Judgment of the learned trial Court and record of the matter that, the learned advocate representing defendant No. 1 passed a pursis at Exhibit 70 stating that, defendant No. 1 does not want to lead evidence on the point of Will. Therefore, even observation was made by the learned trial Court that, though the learned advocate representing the defendant No. 1 has not specifically stated in Exhibit 70, but the pursis indicates that and it was orally addressed by the learned advocate that, defendant No. 1 does not want to claim her title on the basis of Will. If such pursis was specifically passed and thereafter defendant No. 1 did not adduce any evidence, then may be in first appeal or now in second appeal the application under Order XLI Rule 27 cannot be considered at all. The scope of Order XLI Rule 27 is different. Rule 27 of Order XLI provides for, additional evidence to be adduced or received by the appellate Court if the appellant specifies the Court that, after the exercise of due diligence, such evidence was not within his knowledge or could not be produced when the trial Court decided the suit against him. Here the case is totally different. In spite of knowledge of framing of specific issue, of which burden was on her; defendant No. 1 filed pursis at Ex. 70 stating that she does not want to lead any evidence. This act on the part of defendant No. 1 amounts to giving up of claim by her on that point. Original will was in the possession of original defendant No. 1, still when she did not adduce any evidence, with knowledge; then she or her heirs cannot seek any relief by laying hand on Order XLI Rule 27 of Code of Civil Procedure. Therefore, the said application No. 8740 of 2007 deserves to be rejected.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 390 of 2005, 

Decided On: 24.04.2019

 Tejibai Vs.  Mohanlal and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 60

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Whether bar of O 2 R 2 of CPC is applicable if previous suit was disposed off for want of jurisdiction?

Learned counsel for the appellants submits that original plaintiffs had filed Regular Civil Suit No. 26 of 1997 for perpetual injunction to restrain the present defendants from creating third party interest in the same suit property and in that suit, plaint was returned under Order 7 Rule 11 of the Civil Procedure Code, on the ground of lack of jurisdiction. That order was upheld upto High Court and reached finality. Therefore, the present suit filed on the same cause of action is barred under Order 2 Rule 2 of the Civil Procedure Code.

In reply, learned counsel for respondent nos. 1 and 2 submits that Regular Civil Suit No. 26 of 1997 was disposed of for want of jurisdiction to that Court by returning plaint. Therefore, there was no adjudication by the Court having jurisdiction to entertain that suit. In the circumstances, the bar under Order 2 Rule 2 of the Code of Civil Procedure is not attracted. He placed reliance on "Spring Fresh Drinks Pvt. Ltd. Vs. Gani Sons Charitable Trust" [MANU/MH/1009/2016 : 2016 (5) Mh.L.J. 400] and "P. Vijaykumar and Ors. Vs. V.C. Gopalkrishnan" [MANU/MH/0333/1997 : 1997 (2) Mh.L.J. 35].

I have gone through the copy of plaint of Regular Civil Suit No. 26 of 1997 filed on behalf of the plaintiff trust for perpetual injunction to restrain the present defendants from creating third party interest in the same suit property. From the record, it emerges that, Regular Civil Suit No. 26 of 1997 was converted into Regular Civil Suit No. 17 of 2003, as it was transferred from the Civil Judge, Junior Division, Sindkheda to Civil Judge, Junior Division, Dhule. The order, passed by the learned Civil Judge, Junior Division, Dondaicha dated 5.3.2004 shows that the plaint was returned by the Civil Judge, Junior Division, Dondaicha on the ground that it has no jurisdiction to decide whether the suit property is trust property or not. Thus, it is clear that Regular Civil Suit No. 17 of 2003 (Old No. 26 of 1997) was disposed of for want of jurisdiction to entertain that suit and it was not adjudicated by the Civil Court having jurisdiction to entertain it. In Spring Fresh Drinks Pvt. Ltd. Vs. Gani Sons Charitable Trust (supra), this Court had occasion to consider similar situation. This Court held that if the suit is disposed of on the ground that Civil Court has no jurisdiction to try the claim, the bar under Order 2 Rule 2 of the Civil Procedure Code would not be applicable. Same view was also taken previously in P. Vijaykumar and Ors. Vs. V.C. Gopalkrishnan (supra) by this Court.

Considering this consistent view taken by this Court, when Regular Civil Suit No. 17 of 2003 (Old No. 26 of 1997) was disposed of for lack of jurisdiction to the Civil Judge, Junior Division, the bar under Order 2 Rule 2 of Civil Procedure Code is not applicable, as previous suit was not adjudicated by the Court having jurisdiction to entertain that suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

Hon'ble Judges/Coram:

Sunil K. Kotwal, J.

Citation: AIR 2019(NOC)127 Bom

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Supreme Court: O 2 R 2 of CPC will not apply if there are more than one cause of action

 Order II Rule 2(1) of CPC provides that, a Plaintiff is to include the whole of the claim, which he is entitled to make, in respect of the cause of action. However, it is open to him to relinquish any portion of the claim. Order II Rule 2 of CPC provides for the consequences of relinquishment of a part of a claim and also the consequences of omitting a part of the claim. It declares that if a Plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished. Order II Rule 2(3) of CPC, however, deals with the effect of omission to sue for all or any of the reliefs in respect of the same cause of action. The consequences of such omission will be to precluded Plaintiff from suing for any relief which is so omitted. The only exception is when he obtains leave of the Court. 

Law does not compel a litigant to combine one or more causes of action in a suit. It is open to a Plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is true that the embargo in Order II Rule 2 of CPC will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 of CPC will not apply. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1055 of 2019

Decided On: 10.05.2019

 Pramod Kumar  Vs.  Zalak Singh and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

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Whether landlord is barred from filing suit on ground of non payment of arrears of rent after filing eviction suit on ground of bonafide need?

As regards the submission pertaining to Order II Rule 2 of the CPC, the Courts below have correctly analyzed the said provision and applied it to the facts of the present case. A landlord is entitled to seek a decree of eviction against the tenant under various provisions specified in the aforesaid Act. The causes of action available for the landlord under the various statutory provisions of the said Act are clearly distinct and separate. Therefore, it cannot be said that when the landlord filed the suit for eviction on the ground of bona fide need, he ought to have included all the grounds for eviction that may have been available to him. In fact, the cause of action for arrears of rent specifically arises only when the contingencies contemplated in Section 15 of the said Act occur. Therefore, in a given case, although the landlord may claim that a cause of action on the ground of bona fide need has accrued to him, it is not necessary that at the very same time a cause of action for grant of decree of eviction on the ground of arrears of rent has arisen. The petitioner was not justified in claiming that failure on the part of the respondents to invoke the ground of arrears of rent in the earlier suit filed for grant of decree on the ground of bona fide need, was fatal and that subsequent suit could not have been filed. The Courts below have correctly applied the provision of Order II Rule 2 of the CPC to reject the said contention raised on behalf of the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 279 of 2016

Decided On: 11.09.2018

 Ataullahkhan Vs.   Kernath Jaywantrao Nagargoje and Ors.

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Whether tenant who has failed to deposit standard rent within ninety days of order is liable to be evicted?

The material on record also shows that even after the fixation of standard rent by the trial Court by an order dated 07-01-2004 at the rate of Rs. 750/- per month, the petitioner did not deposit the entire arrears from 01-01-2002 up to date within 90 days from the said order dated 07-01-2004. Therefore, upon minutely scrutinizing the evidence and material on record, it is seen that the petitioner had clearly committed default and thereby exposed himself for grant of eviction decree on the ground of arrears of rent under subsections 1, 2 and 3 of Section 15 of the aforesaid Act. The petitioner has failed to demonstrate any perversity in the findings rendered by the Courts below concurrently, on the basis of material and evidence on record. In such a situation, this Court cannot exercise writ jurisdiction in favour of the petitioner to reverse the decree of eviction granted by the trial Court and confirmed by the appellate Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 279 of 2016

Decided On: 11.09.2018

 Ataullahkhan Vs.   Kernath Jaywantrao Nagargoje and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(2) MHLJ 471

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Whether bar as per O 2 R 2 of CPC can be proved on basis of photocopy of plaint?

True it is that the defendants have filed a photo copy, we cannot ignore that the law laid down by the Supreme Court in the case of Gurbux Singh (supra) lays down the legal requirement of filing the plaint as evidence to prove that the earlier suit was filed on the same cause of action as the subsequent suit and at that time, though the plaintiff could have asked for relief/reliefs sought in the subsequent suit, he omitted to do so and then without the leave of the Court, filed subsequent suit. Therefore, as emphatically propounded by Their Lordships in the Supreme Court in the recent decision, filing of the plaint, that means, leading of plaint as evidence in support of plea of non-maintainability of suit under Order 2 Rule 2 CPC was imperative. We do not find that the defendant, later on, filed any certified copy of the plaint or that his prayer to lead secondary evidence was allowed and the fact of having filed a suit earlier on the same cause of action was proved by leading secondary evidence or the learned Trial Court called for records of the earlier suit. Therefore, as the photo copy of the plaint was not admissible in evidence, it cannot be said that the legal requirement of filing the plaint of the earlier suit was even substantially complied with. The submission of learned counsel for the respondent that, the certified copy of the judgment of the earlier case refers to material plea taken by the plaintiff in its plaint in the earlier suit should be taken as proof as to what was the pleading, made by the plaintiff in the earlier suit, cannot be accepted. True it is that while delivering judgment in the earlier case, learned Trial Court in that case, referred to the pleadings but that cannot be said to be complete plaint being on record before the Court to examine whether the second suit ought to be held to be not maintainable under Order 2 Rule 2 CPC. We wish to emphasize that Their Lordships in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra) noted that such a plea based on provisions contained in Order 2 Rule 2 CPC is a technical bar which has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning which learned counsel for the respondent seeks us to do. Learned Trial Court recorded finding based on inferential process of reasoning and committed manifest error in law. Therefore, the impugned judgment is liable to be interfered with in this appeal.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

FA No. 175 of 2011

Decided On: 09.07.2018

 Vikas Ahuja  Vs.  Jaiprakash Joshi and Ors.

Hon'ble Judges/Coram:

Manindra Mohan Shrivastava and Rajani Dubey, JJ.

Citation: AIR 2019 Chhat 15

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Leading judgment of Supreme Court on O 2 R 2 of CPC

Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2. r. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed.

It is not impossible that relies were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterization of the particular sum demanded but what in substance in the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. If is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 583 of 1961

Decided On: 22.04.1964

Gurbux Singh  Vs. Bhooralal

Hon'ble Judges/Coram:

P.B. Gajendragadkar, C.J., K.N. Wanchoo, M. Hidayatullah, N. Rajagopala Ayyangar and K.C. Das Gupta, JJ.

Citation:  AIR 1964 SC 1810

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