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1999 Supreme(P&H) 244
PUNJAB AND HARYANA HIGH COURT
V.S. Aggarwal, J.
Rakesh Kumar - Petitioners
Versus
Ajit Singh - Respondent
Civil Revision No. 3951 of 1996.
Decided On : 5 March, 1999
For the Petitioners:Mr. R.K. Jain, Advocate.
A plaintiff cannot split his cause of action and file multiple suits for different reliefs arising from the same cause of action.
Headnote:
ORDER 2 RULE 2 OF THE CODE OF CIVIL PROCEDURE - SPLITTING OF CAUSES OF ACTION - SUIT FOR SPECIFIC PERFORMANCE BARRED - EARLIER SUIT FOR PERMANENT INJUNCTION - CAUSE OF ACTION AVAILABLE BUT NOT TAKEN - ORDER 2 RULE 2(3) OF THE CODE BARS THE SECOND SUIT.
Fact of the Case:
The respondent filed a suit for permanent injunction to restrain the petitioners' predecessor-in-interest from alienating the suit property. The suit was withdrawn with liberty to file a fresh one. The respondent then filed a suit for specific performance of the contract based on the same agreement. The petitioners contested the suit, arguing that it was barred under Order 2 Rule 2 of the Code of Civil Procedure (CPC) because the relief could have been claimed in the earlier suit.
Finding of the Court:
The court held that the subsequent suit was barred under Order 2 Rule 2(3) of the CPC because the cause of action was available to the respondent in the earlier suit but was not taken. The court noted that the due date for execution of the agreement had expired at the time of the earlier suit, and the respondent could have sought specific performance as a relief in that suit.
Issues: Whether the subsequent suit for specific performance was barred under Order 2 Rule 2 of the CPC because the relief could have been claimed in the earlier suit for permanent injunction.
Ratio Decidendi: The court relied on the following principles: * Order 2 Rule 2 of the CPC bars splitting of causes of action. * The cause of action means every fact which is necessary for the plaintiff to prove if traversed in order to support his right to the judgment. * If a plaintiff omits any portion of the claim which he is entitled to make or omits one of the reliefs which he could claim, then afterwards he is not entitled to sue for the said relief. The court found that the cause of action for specific performance was available to the respondent in the earlier suit for permanent injunction, but he chose not to take it. Therefore, the subsequent suit was barred under Order 2 Rule 2(3) of the CPC.
Final Decision: The revision petition was allowed, the impugned order was set aside, and the civil suit filed by the respondent was dismissed.
V.S. Aggarwal, J. - The present revision petition has been filed by Rakesh Kumar and Ganesh Kumar, hereinafter described as "the petitioners" directed against the order passed by the learned Additional Civil Judge (Senior Division), Faridabad, dated 3.4.1996. By virtue of the impugned order, the learned trial Court dismissed the application filed by the petitioners.
2. Some of the relevant facts in this regard can well be mentioned. The respondent had filed a civil suit titled Ajit Singh v. Brij Mohan Sahai on 23.2.1994. The respondent prayed for permanent injunction to restrain the predecessor-in-interest of the petitioners from alienating the suit property to any body. It had been pleaded that the respondent had entered into an agreement of sale with the predecessor-in-interest of the petitioners on 1.4.1993 to sell his plot situate in Anangpur, Tehsil and District Faridabad. It was further asserted that the predecessor-in-interest of the petitioners did not get the sale deed registered on 16.2.1994 nor appeared before the Registrar. The petitioners predecessor-in-interest declined to register the sale deed on 22.2.1994. The petitioners had submitted a reply and it was pointed out that Brij Mohan Sahai had expired on 13.10.1993. He could not refuse registration. On 6.4.1994 the learned trial Court had passed the following order :
"Learned counsel for the petitioner made the above statement for withdrawal of suit with a liberty to file fresh one. Heard. No ground for giving permission to file fresh. As such the present suit is dismissed as withdrawn simply. File be consigned to the record room."
3. After withdrawal of the suit for permanent injunction the respondent is alleged to have filed a suit for specific performance of the contract based on the agreement dated 1.4.1993. The petitioners contested the said suit and took up the objection that the subsequent suit was barred under Order 2 Rule 2 of the Code of Civil Procedure (for short "the Code") because this could be claimed as a relief in the earlier suit filed for permanent injunction.
4. The learned trial Court rejected this request holding that causes of action in both the suits were different because the first suit has to be filed when the predecessor-in-interest of the petitioners attempted to sell the property, while the second suit was for specific performance of the contract.
5. Aggrieved by the same, present revision petition has been filed.
6. As is apparent from what has been reproduced above, the main controversy is about the provisions of Order 2 Rule 2 of the Code. It reads 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."
7. It is obvious from the perusal of Order 2 Rule 2 referred to above that it bars splitting of causes of action. It is based on a well settled principle that the defendant should not be harassed twice for the same cause of action. If a plaintiff omits any portion of the claim which he is entitled to make or omits one of the reliefs which he cou
