Frame Of A Suit: Order II Of The Code Of Civil Procedure, 1908
Prateek Mahajan, Advocate
Punjab & Haryana High Court, Chandigarh
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Date : 03/04/2021 - Location : House No. 3321, Sector 19-D, Chandigarh
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Frame Of A Suit: Order II Of The Code Of Civil Procedure, 1908Introduction The philosophy and principle underlying Order II is to discourage and minimize litigation. The law has always frowned upon multiplicity of litigation since less litigation is seen as a sign of a peaceful, progressive and developed society. Hence, Order II has rightly been incorporated in the Code of Civil Procedure in furtherance of the said philosophy of minimizing litigation. Provisions of Order II Rule 1 of Order II provides for the abovementioned basic principle, and states that every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 1, therefore, provides the foundational principle. This principle of minimizing litigation is seen in action in Rule 2 and, from a litigation point of view, is the most important provision of this Order. Rule 2 provides for the following conditions to be complied with while filing a suit:
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;
(2) 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) 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.This provision consists of two parts, or two situation and these have been explained by the Hon'ble Supreme Court in a vast number of decisions. The most recent of such judgments is one delivered in the year 2020 in the case of Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 (3) RCR (C) 404. In this case, the Court explained that Order II Rule 2 has 3 subrules. The first sub-rule is the general principle that a plaintiff should include the whole of his claim in the suit. Sub-rule 2 deals with the effect of omission or relinquishment of a claim and sub-rule 3 deals with the omission of a relief. There is a difference between omission of claim and omission of relief. As per the sub-rule, if a claim has been omitted, a person cannot later, in any condition or circumstance, sue for the same. There is an absolute bar to the second suit. On the other hand, in case of relief, if a person omits the same, he or she can sue for the same with the leave or permission of the Court. The difference between claim and relief can be explained well with the help of an example. Suppose A lets a house to B at a yearly rent of Rs. 1 lakh in 2017. The rent for the whole of the years 2017, 2018 and 2019 is due and unpaid. In 2020, A sues B only for the rent due for 2018 and 2019. He omits for sue for rent for the year 2017. As per this provision, A cannot afterwards sue B for the rent due for 2017. This is a case where he has omitted one of his claims i.e., claim for rent for the year 2017 and he cannot later sue for the same. The Court cannot give permission to file suit for such a claim. On the other hand, a relief is the legal remedy for wrong. In the same example, if the rent is not paid on time, A can ask for interest from the date it fell due. This amounts to a relief. If he omits to ask for the same, but files an application or makes a prayer and takes permission of the Court to file for interest separately, he can file a separate suit. However, if he fails to take the permission of the Court, then the bar of Order II sub-rule 3 comes into operation and he cannot sue for the said relief. Further, the leave of the Court need not be express and may be inferred from the circumstances of the case. It can also be obtained at any stage. In 1993, the Bombay High Court had held that the leave should be obtained at the time of filing the suit, but now it has been clarified in 2016 that the leave can be obtained at any stage in the suit[1*] . The power to grant permission is completely on the discretion of the Court. There exists no straight-jacket formula to grant leave, which implies that such a grant depends upon the facts and circumstances of the case.
[1* 2016(1) CCC 426 Bombay]There are two more terms which warrant understanding at this juncture - omission and relinquishment. The consequences for omission are clear. While omission is usually unintentional, it is always open for the plaintiff to intentionally relinquish his claims, and the consequences for relinquishment are the same as omission i.e., a subsequent suit for the claims relinquished cannot be permitted to be filed. Further, the Rule also clarifies in sub-rule 1that a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. It is always his right to do that. However, in such a case, he cannot later sue for the said amount. An illustration of the same is if A advances a loan of Rs. 2200 to B. The jurisdiction of a particular Court is up to Rs. 2000 only. In order to bring the suit within the jurisdiction of Court X, A sues B for Rs. 2000. A cannot afterwards sue for the remaining Rs. 200. Object of this Rule A Constitution Bench of Supreme Court in Gurubux Singh v. Bhooralal, AIR 1964 SC 1810 laid down in its words the object of the Rule. The Court stated that the object of Order II Rule 2 of the Code is two-fold. The first is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. The second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order II Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action from filing a second suit in regard to other reliefs based on the same cause of action. Therefore, it is a salutary provision to prevent multiplicity of litigation in current times when courts' dockets are exploding with multifarious litigation. What is important to understand here is that Order II Rule 2 does not bar a second suit based on a different and distinct cause of action. Hence, if the second suit is on a different cause of action, it will not be barred. This was explained well in the judgment of the Supreme Court in Sandeep Polymers (P) Limited v. Bajaj Auto Limited & Ors., (2007) 7 SCC 148, where the Court observed that this rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. Hence, it is not mandatory for the plaintiff to join more than one cause of action, but it is mandatory to join all claims and reliefs arising out of one cause of action. Cause of action Cause of action may be defined as `a bundle of essential facts or factual situation, which is necessary for the plaintiff to prove before he can succeed and obtain a remedy from the Court against another person.' It includes every fact which is material for the plaintiff to prove to succeed and every fact which a defendant will have a right to traverse or contradict. A cause of action must include some act done by the defendant which gives the plaintiff his cause of complaint since in the absence of such an act no cause of action can possibly accrue. How to determine whether cause of action is same or different One primary criterion to determine whether the cause of action in the subsequent suit is identical to that in the first suit, is whether the same evidence will maintain both actions. The rough test to impose Rule 2 would be to see if the evidence provided in the first suit would sustain in the subsequent suit also, if the answer is in affirmative then the second suit is barred by Order II Rule 2. This was the holding in the case of Mohd. Khalil v. Mahbub Ali, AIR 1949 PC 78 and holds good to this day. Further, it was held by a Constitution Bench in the case of Gurubux Singh v. Bhoora Lal, AIR 1964 SC 1810 that "to establish that the cause of action in both the suits is the same, 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." The Court stated that, like res judicata, a plea of bar of Order II Rule 2 will have to be established by the defendant by producing the previous plaint or evidence showing that it is arising out of the same cause of action. The Court cannot take cognizance of the previous suit suo motu, which means that the onus would be on the defendant to clearly establish that the cause of action was the same in the previous pleadings. Therefore, if the previous pleadings are not brought before the Court, the bar of Order II Rule 2 will not apply. This principle was taken a step further by the Supreme Court in Alka Gupta v. Narender Kumar Gupta, AIR 2011 SC 9 wherein the Court held that unless the defendant pleads the bar under Order II Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order II Rule 2 of the Code and no issue was framed as to whether the suit was barred by Order II Rule 2 of the Code. However, the High Court (both the trial bench and appellate bench) erroneously assumed that a plea of res judicata would include a plea of bar under Order II Rule 2 of the Code. The Supreme Court explained that res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order II Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order II Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, was held to be unsustainable. Thus, the provision under Order II Rule 2 is penal in nature as it bars the plaintiff to file for a claim that he ignored unintentionally or even intentionally. This provision should be construed strictly and has been done so by the Supreme Court in several situations. Practical implications of Order II Rule 2 There are certain other legal propositions with respect to Order II Rule 2 which are often seen in a practical application of the provision. One is with respect to filing of suits relating to injunction and specific performance in cases of an agreement to sell. Many a times we find that when the seller is not honouring the agreement, people initially file a suit for injunction and later, when the stipulated target date passes, they file a suit for specific performance. Here, the question arises as to whether the second suit in this case will be barred by operation of Order II Rule 2. The law in this regard was unclear until a few years ago, but has been settled by recent decisions of the Supreme Court. The first case in this regard is M/s Virgo Industries v. M/s Venturetech Solutions Pvt. Ltd., 2012 (4) RCR (C) 372 in this case, the Court stated that if A enters into an agreement to sell with B and later A, by his overt acts, makes his intention clear not to honour the agreement to sell, then B cannot simply file a suit for injunction for restraining A from alienating the property. Rather, he has to claim the relief of specific performance as well, otherwise the second suit will be barred by the provisions of Order II Rule 2. The Court also made it clear in this case that the provisions of Order II Rule 2 will be applied to the second suit even if the first suit was pending. Earlier a number of High Courts had taken the view that Order II Rule 2 will not apply to bar the second suit if the first suit is pending. The Supreme Court, in essence, took a strong view in favour of imposition of the bar under Order II Rule 2 in order to curtail multiplicity of litigation in such cases. This decision holds good even today and was followed recently in a judgment of the Punjab and Haryana High Court in the case of Harbhajan Singh v. Hazur Singh, 2019 (1) RCR (C) 945 by Hon'ble Mr. Justice Anil Kshetarpal. Here, however, one distinction needs to be clarified. In cases where the seller hands over possession to the buyer and thereafter tries to dispossess him and the buyer files a suit for injunction restraining the seller for dispossessing him, the buyer will not be barred from subsequently filing a suit for specific performance. This is because in such a case, the cause of action of the seller trying to dispossess the buyer and the seller not agreeing to perform his part of the agreement form distinct causes of action and, as already stated above, if the causes of action are different, the bar of Order II Rule 2 does not apply. The relevant judgments in this regard are Inbasagaran and another v. S. Natarajan (D) through L.R.s, 2015 (11) SCC 12, Rathnavathi and another v. Kavita Ganashamdas, 2015 (5) SCC 223 and Sucha Singh Sondhi (D) through L.R.s v. Baldev Raj Walia, 2018 (2) RCR (Civil) 782. The second proposition from a practical point of view is with respect to the applicability of Order II Rule 2 to writ proceedings. Section 141 of the CPC provides that "the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." The Explanation to this Section states that, in this section, the expression "proceedings" does not include any proceeding under Article 226 of the Constitution. Thus, as per the CPC itself, the Code will not apply to writ proceedings. However, there are certain principles of CPC which are based on reason and justice and Courts have consistently held that these will be applicable to writ proceedings also when the Court is exercising its discretionary jurisdiction. For instance, it has been held in Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 that the principle of res judicata is applicable to writs. Further, it was held in Sarguja Transport Service v. STAT, AIR 1987 SC 88 that Order 23 Rule 1 is applicable to writs. Similarly,it was held in Avinash Nagra v. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 that the principle of constructive res judicata would be applicable to writ petitions. So far as the applicability of Order II Rule 2 to writ proceedings is concerned, the Supreme Court in the year 1962 in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and others, AIR 1962 SC 1334 made passing observations without going into the issue in depth. Here, the Court stated that "the bar of Order II Rule 2 of the Civil Procedure Code, on which the High Court apparently relied, may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court." In this case, mere passing observations were made against the application of Order II Rule 2 to writ proceedings and the judgment of the High Court in which it had applied Order II Rule 2 was upheld and hence, this judgment cannot be said to be a binding precedent. Thereafter, in a number of cases with respect to matters arising from the Central Administrative Tribunal,Order II Rule 2 has been applied by the Supreme Court. Some of these judgments are M/s D. Cawasji & Co. v. State of Mysore, AIR 1975 SC 813 Commissioner of Income Tax v. T.P. Kumaran, (1996) 10 SCC 561 and Union of India & Ors. v. Punnilal & Ors., (1996) 11 SCC 112. The Central Administration Tribunals, like writ Courts, are not bound by the CPC. In spite of this, the Supreme Court has applied the principles of Order II Rule 2 to cases arising from Central Administrative Tribunals, and in a large number has consistently taken a view that the principles of Order II Rule 2 will apply to writ petitions. The Himachal Pradesh High Court has taken a clear and categorical view with respect to the applicability of Order II Rule 2 to writ petitions. A recent reported judgment is Ex Petty Officer Hari Pal Singh v. State of H.P., 2017 (3) Himachal Law Reporter 1696 which was delivered by a Division Bench. The Punjab and Haryana High Court has in a number of cases applied the principles of Order II Rule 2 to writ proceedings. One such judgment of the Division Bench is Ravi Dutt Sharma v. State of Haryana, 2003 (4) SCT 151. Infact, a very elaborate judgment has been passed recently by Hon'ble Mr Justice Anil Kshetarpal in the High Court of Punjab and Haryana on 16 July 2020 in Freudenberg Nok Plant 1 & 2 Workers Union v. State of Punjab, 2003 (4) SCT 151 wherein the Court has referred to Rule 20 and Rule 32 of Writ Jurisdiction (Punjab and Haryana) Rules and held that Order II Rule 2 is applicable to writ proceedings. As per Rule 20, the petitioner has to make a statement in the petition as to whether a similar petition has been made to the Supreme Court or previously in this Court or in any other Court in respect of the same matter, and if made, with what result. Further, Rule 32 of the Rules provides that the provisions of the Code of Civil Procedure, unless inconsistent with these Rules, shall apply mutatis mutandis. The Court held that Order II Rule 2 of the CPC is applicable, particularly when in the 1976 Rules there is no provision inconsistent with the provisions of Order II Rule 2 of the CPC. The Court here also referred to a judgment of the Supreme Court in State Bank of India v. K.C. Tharakan and others, (2005) 8 SCC 428 wherein it had deprecated the practice of filing multiple writ petitions on same or similar cause of action. The Court stated that filing of multiple writ petitions should be avoided since the dockets of the Courts are already over flowing and that the filing of multiple petitions is neither in the interest of justice nor in the interest of the judicial institution. Thus, for this reason, the provisions of Order II Rule 2 have to be applied by writ Courts. Courts must use Order II Rule 2 as a tool to curtail the abuse of legal process and the multiplicity of litigation. It must be pointed out here, however, that in spite of the several decisions in favour of application of Order II Rule 2, there has been an aberration in a recent judgment delivered by the Supreme Court in February 2020 in the case of Brahma Singh v. Union of India, 2020 (3) SCALE 224. In this case, while deciding a matter regarding retiral benefits of employees of the Supreme Court Legal Services Committee, the Supreme Court refused to take a hyper-technical view and relied with approval on its judgment in Devendra Pratap Narain Sharma, AIR 1962 SC 1334 and granted the relief which the Court had gone into in a previous petition. This judgment, in the author's opinion, is vague and will require clarification in times to come. Remaining provisions of Order II Order II Rule 3 provides for the joinder of cause of action. According to this Rule, 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(s), may jointly unite such causes of action in the same suit. If there are two or more plaintiffs or defendants and several causes of actions are involved, they may unite such causes of action in one suit only if they all are interested. But this should be read with Order 1 Rules 1 and 3 which furnishes two conditions that has to be fulfilled before coming under this provision. The first condition is that the causes of actions must have arisen out of same act or transaction or series of acts or transactions, and the second condition is that common questions of law or fact must have been involved. Rule 6 provides for the power of the Court, and states that where it appears to the Court that the joinder of causes of action in the suit may embarrass or delay the trial or is otherwise in convenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice. This provision was inserted by way of an amendment in the year 1976. Rule 4 states that in a suit to recover the immovable property, a plaintiff is not entitled, without the leave of the court, to join any claim, except:
i. Claims for the mesne profits or arrears of rent in respect of the property claimed or any part thereof.
ii. Claims for damages for breach of the contract under which the property or any part thereof is held.
iii. Claims in which the relief sought is based on the same cause of action.Rule 5 deals with the suits by or against three classes of person which are executors, administrators and heirs. It states that no claim could be merged together which was made in their representative capacity with the claims by or against them personally in the same suit, except:
i. Where the personal claims arise with the reference to the estate he represents,
ii. Where he was entitled to or liable for, those claims jointly with the deceased whom he represents.The primary objective of these provisions is to prevent a representative from intermingling the assets of his testator with his own estates. Rule 7 provides for objections as to misjoinder. It states that all objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. Rule 8 added by Punjab and Haryana High Court in the year 1909. It states that when an objection, duly taken, has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed, and shall, within time to be fixed by the Court, amend the plaint by striking out the remaining causes of action. When the plaintiff has selected the cause of action with which he will proceed, the Court shall pass an order giving him time within which to submit amended plaint for the remaining causes of action and for making up the court fees that may be necessary. Should the plaintiff not comply with the Court's order, the Court shall proceed as provided in Rule 18 of Order VI and as required by Court Fees Act. These are the 8 Rules forming part of Order II. There initially were 6 Rules when the Code was enacted in 1908, one Rule was added by the Punjab and Haryana High Court in 1909 and one Rule was added by the Centre in 1976. Conclusion Order II is a salutary provision, not just for the general public and litigants in order to save them from unnecessary multiplicity of litigation, but it is also a salutary provision for lawyers in the sense that it is meant to keep us on our toes. It is a message to us to stay alert and vigilant while drafting and also keep ourselves up-to-date with respect to the latest law so we that we do not miss out on any claim or relief for our clients while drafting and do not cause any permanent loss to them by our omission. Hence, it is a provision which encourages us to become better lawyers.
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