IMPORTANT POINTS
1. Order 2 Rule 2 sub rule (3) of the Civil Procedure Code, requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2 Rule 2 sub-rule (3) will not get attracted.
2. In cases of continuous causes of action or recurring causes of action bar of Order 2 Rule 2 sub-rule (3) of Civil Procedure Code cannot be invoked.

Headnote:(i) Civil Procedure Code, 1908-Order 2 Rule 2 sub-rule (3)-Applicability-Plea of bar of-Cause of action in earlier suit must be same on which subsequent suit is based-Failure to bring on record pleadings of earlier suit-Plea raised by defendants barred-There cannot be any inference about bar of Order 2 Rule 2 sub-rule (3), which may be culled out from plaint in second case-It was not open to defendants to raise contention that along with counter in SLP they had produced copy of plaint.
       Held that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) of Rule 2 of Order 2, CPC is concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred by the same it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press in service in that suit cannot be subsequently prayed for except with the leave of the Court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2 Rule 2 sub-rule (3) that the second suit of the plaintiff filed in 1982 is based on the same cause of action on which its earlier suit of 1980 was based and that because it had not prayed for any relief on the ground of passing off action and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. So far as this plea of the defendants is concerned there is a threshold bar against them for their failure to bring on record the pleadings of the earlier suit which unfortunately has not been properly appreciated by the courts below. (Para 6)
       (ii) Civil Procedure Code, 1908-Order 2 Rule 2 sub-rule (3)-Applicability-Plea of bar of-In cases of continuous causes of action or recurring causes of action-Bar of Order 2 Rule 2 sub-rule (3) cannot be invoked-Infringement of a registered trade mark-Continuing wrong so long as infringement continues. (Para 8)
       (iii) Constitution of India-Art. 136-Civil Procedure Code, 1908-Order 2 Rule 2 Sub-rule (3)-Suit for infringement of registered trade mark-Prayer for permanent injunction-Dismissed-Second suit against defendants to desist from marketing, selling or offering for sale the said goods-On merits Single Judge of High Court held in favour of plaintiff-However decree of Trial Court dismissing second suit as barred by Order 2 Rule 2 sub-rule (3) confirmed-Appeal against-Whether second suit of plaintiff is barred by Order 2 Rule 2 sub rule (3)?-(No)-Defendants had not produced on record of Trial Court the pleadings in first suit-Complete bar against defendants from raising bar of Order 2 Rule 2 sub rule (3) against plaintiff in this case-Plaintiff had made out a case for actionable breach of infringement of plaintiff s trade mark as well as actionable act of passing off-Suit would be required to be decreed.
       Held : Order 2 Rule 2 sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2 rule 2 sub-rule (3) will not get attracted. The illustration below the said Rule amply brings out this position. A mere look at the said illustration shows that if a landlord sues the tenant in 1908 for the rent due till the year and omits to sue for rent for any of the previous years which had then accrued due he cannot subsequently sue the tenant for the previous rent due, claim for which was given up in the suit. It is obvious that a subsequent suit would not be barred in case of rent falling due after the first suit, say, for the year 1909 or 1910 etc. as that default would give him a fresh cause of action. In the facts of the present case it becomes obvious that when earlier suit was filed in 1980 the plaintiff had a cause of action regarding the alleged illegal use of his trade mark DUCK BACK by the defendants and had also a grievance regarding the then existing deceitful action of the defendants in trying to pass off its goods DACK BACK as if they were similar to the plaintiff s goods DUCKBACK . Therefore, the cause of action for the first suit of 1980 was based on the infringement of plaintiff s trade mark DUCKBACK by the defendants till the date of the suit filled in 1980. The grievance regarding passing off of the defendants goods as if they were plaintiff s goods was also confined to the situation prevailing on the date of the earlier suit No. 238 of 1980. That suit failed as the plaintiff had not claimed proper relief. Consequently for the alleged acts of infringement of plaintiff s trade mark of the alleged passing off actions on the part of the defendants till the date of the earlier suit no subsequent grievance could be ventilated by the plaintiff s by filling a fresh suit. In the second suit, namely, the present suit the grievance is not based no any acts of infringement or passing off alleged to have been committed by the defendants in 1980 but plaintiff s grievance is regarding the continuous acts of infringement of its trade mark DUCKBACK and the continuous passing off action of the part of the defendants subsequent to the filing of the earlier suit and which had continued on the date of the second suit of 1982. The present suit is not based on the same cause of action on which the earlier suit was based. The cause of action for filling this present second suit is the continuous and recurring infringement of plaintiff s trade mark by the defendants continuously till the filling of the present second suit. It is obvious that thus the alleged infringement of plaintiff s trade mark DUCKBACK and the alleged passing off action on the part of the defendants in selling their goods by passing off their goods as if they were plaintiff s goods has continued all throughout uninterrupted and in a recurring manner. It is obvious that such infringement of a registered trade mark carried on from time to time would give a recurring cause of action to the holder of the trade mark to make a grievance about the same and similarly such impugned passing off actions also would give a recurring cause of action to the plaintiff to make a grievance about the same and to seek appropriate relief from the court. In cases of continuous causes of action or recurring causes of action bar of Order 2 Rule 2 sub-rule (3) cannot be invoked. In this connection it is profitable to have a look at Section 22 of the Limitation Act, 1963. It lays down that in the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run to every moment of the time during which the breach or the tort, as the case may be, continues . As act of passing off is an act of deceit and tort every time when such tortious act or deceit in committed by the defendant the plaintiff gets a fresh cause of action to come to the court by appropriate proceedings. Similarly infringement of a registered trade mark would also be a continuing wrong so long as infringement continues. Therefore, whether the earlier infringement has continued or a new infringement has taken place cause of action for filing a fresh suit would obviously arise in favour of the plaintiff who is aggrieved by such fresh infringements of trade mark or fresh passing off actions alleged against the defendant. Consequently, in our view even on merits the learned Trial Judge as well as the learned Single Judge were obviously in error in taking the view that the second suit of the plaintiff in the present case was barred by Order 2 Rule 2 sub-rule (3), CPC. (Para 8)

JUDGMENT

S.B. Majmudar, J.-Leave granted.

2. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally heard and is being disposed of by this judgment. A short question arises for our consideration in this appeal. It is to the effect as to whether the suit filed by the appellant against the respondents in the Court of Chief Judge, City Civil Court, Hyderabad being Original Suit No. 123 of 1982 was barred by the provisions of Order 2 Rule 2 Sub-rule (1) of the Code of Civil Procedure, 1908 ( CPC for short). The Trial Court held that the suit was barred by the aforesaid provisions. We will refer to the appellant as plaintiff and the respondents as defendants for the sake of convenience in latter part of this judgment. A learned Single Judge of the High Court of Andhra Pradesh held on merits that the plaintiff had established its case of passing off against the defendants. However the decree of dismissal of the suit as passed by the trial Court of the ground that the suit was barred by Order 2 Rule 2 Sub-rule (3) was confirmed by the learned Single Judge. As no writ appeal lies against the said order before the Division Bench of the High Court the plaintiff preferred Special Leave Petition under Article 136 of the Constitution of India and as we have granted the leave, the present appeal fell for consideration before us.

3. The case of the plaintiff is that it is a proprietor of the trade mark bearing the word DUCKBACK which is registered under the Trade and Merchandise Marks Act, 1959 and also the owner of the copyright in the artistic design of the word DUCKBACK registered under the Copyright Act and that the plaintiff has acquired a good reputation in the Indian market for waterproof goods and rubberised waterproof raincoats. It is the further case of the plaintiff that it market its products under the registered trade mark DUCKBACK throughout the country and its product has obtained good reputation and popularity amongst the consumers as DUCKBACK raincoats. The plaintiff further alleges that it came to know that defendants were manufacturing and marketing similar products under the trade mark DACKBack which phonetically and visually resembled the plaintiff s trade mark resulting in confusion amongst consumers and amounted to passing off of plaintiff s goods as the goods of the defendants. The plaintiff was, therefore, advised to sue the defendants under in the City Civil Court, Hyderabad for infringement of registered trade mark DUCKBACK and it prayed, inter alia, for permanent injunction on that basis. The learned Trial Judge in that suit being Original Suit No. 238 of 1980 which will be styled as the first suit, passed the judgment and decree dated 8th April 1982, and dismissed the same on the ground that there was no infringement of plaintiff s trade mark DUCKBack by the defendants who were trading in their goods named and styled as DACKBACK and, therefore, the reliefs as prayed for in the plaint were not maintainable and could not be granted.

4. It is the case of the plaintiff that it was misinformed and ill-advised when it instituted the first suit for injunction restraining the defendants from manufacturing, selling, distributing and dealing in any manner with the waterproof DUCKBACK raincoats. The plaintiff further alleged that even thereafter in 1982 it came to its notice that defendants were carrying on the infringement of plaintiff s registered trade mark and were passing off their goods as goods of the plaintiff and, therefore, they were liable to be restrained by way of permanent injunction from infringing the trade mark and copyright of the plaintiff as well as from passing off their goods as if they were plaintiff s goods. The said suit which is the second suit and from which the present appeal arises was registered as Original Suit No. 123 of 1982 before the Chief Judge, City Civil Court, Hyderabad. It is alleged in this second suit that by two

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