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2024 Supreme(Online)(Bom) 1539
BOMBAY HIGH COURT
B. P. COLABAWALLA, FIRDOSH P. POONIWALLA, JJ
Karunakar Shetty – Appellant
Versus
Shanta Chandappa Alva – Respondent
FCA 67 / 2022
Adv. Ms. Disha Shetty, for the Appellant-Husband. Adv. Mr. R. M. Bhandari, for the Respondent-wife.
The court clarified that distinct causes of action in separate petitions do not invoke the bar under Order 2 Rule 2 of the CPC, allowing for separate suits.
Headnote:(A) Code of Civil Procedure, 1908 - Order 2 Rule 2 - Dismissal of suit - The suit was dismissed under Order 2 Rule 2(3) on grounds of the same cause of action being involved in two petitions - The appellant contended that the causes of action were distinct, thus the dismissal was erroneous - The court found that the causes of action for the divorce petition and the property claim were different, and therefore, the bar under Order 2 Rule 2 CPC did not apply. (Paras 8-21)
(B) Legal principles - The court emphasized that the provisions of Order 2 Rule 2 CPC mandate that all claims arising from the same cause of action must be included in one suit, and if omitted, a subsequent suit cannot be filed without leave of the court. (Paras 12-13)
(C) Findings of Court - The court held that the dismissal of the appellant's petition was erroneous as the causes of action were distinct, and thus, the petition should be restored for hearing on merits. (Paras 21-22)
(D) Issues - The main issue was whether the causes of action in the two petitions were the same, which would invoke the bar under Order 2 Rule 2 CPC. (Paras 8, 17) (E) Ratio Decidendi - The court ruled that the causes of action for the divorce and the property claim were different, and thus, the bar under Order 2 Rule 2 CPC was not applicable. (Paras 20-21) (F) Result - The appeal was allowed, and the order dated 31st March 2021 was set aside, restoring the petition for hearing. (Paras 21-22) (G) Parties involved - Appellant and Respondent.
The suit stands dismissed under order 2 Rule 2 (3)of Code of Civil Procedure.
8. In this factual backdrop, Ms. Disha Shetty, the learned Advocate appearing for the Appellant, submitted that the Learned Judge had committed an error in passing the said Order dated 31st March, 2021 as the Learned Judge had failed to appreciate that the earlier Petition filed for divorce by the Appellant was based on a different cause of action than the subsequent Petition filed by the Appellant seeking reliefs in respect of the Suit Flat. Ms. Shetty submitted that since the causes of action in respect of the earlier Petition and the subsequent Petition were different, the provisions of Order 2 Rule 2 of the CPC would not apply to the present case, and, therefore, the Learned Judge had committed a grave error in dismissing the Petition by relying upon the provisions of Order 2 Rule 2 of the CPC.
9. In support of her submissions, Ms. Shetty relied upon the judgement of the Hon’ble Supreme Court in Rathnavathi and Another v/s. Kavita Ganashamdas, (2015) 5 SCC 223 and also to a judgement of the Delhi High Court in Gaurav Mangla and Others v/s. Rohit Mangla, MANU/DE/2415/2024 Ms. Shetty submitted that the said judgements clearly laid down that, if the cause of action is different, then the provisions of Order 2 Rule 2 of the CPC are wholly inapplicable. Consequently, Ms. Shetty submitted that the impugned Judgment dated 31st March 2021 ought to be set aside and the Petition be restored to the file of the Family Court No.3 at Bandra to be heard on merits.
10. On the other hand, Mr. Bhandari, the learned counsel appearing on behalf of the Respondent, submitted that the cause of action for dissolving the marriage between the Appellant and the Respondent, and the cause of action for seeking a declaration that the Appellant is the sole owner of the Suit Flat, was one and the same. Once this is the case, then, under the provisions of Order 2 Rule 2, the Appellant could not, without the leave of the Court, sue for reliefs which he had omitted to sue for when he filed his Petition for divorce/dissolution of marriage. He submitted that this is ex- facie clear from the provisions of Order 2 Rule 2 (3) of the CPC. Once this is the case, Mr. Bhandari submitted that there was no merit in the arguments canvassed on behalf of the Appellant and consequently prayed for dismissal of the above Appeal.
ANALYSIS AND FINDINGS:-
11. At the outset, it is important to note that the Respondent had not filed any Application under Order 2 Rule 2 of the CPC seeking dismissal of the suit. The Learned Family Court Judge has suo moto raised this point and thereafter proceeded to dismiss the Petition filed before the Family Court which sought certain reliefs in relation to the Suit Flat. In this Appeal, we are not going into the question whether the Learned Judge could have suo moto raised the point regarding the suit being barred under the provisions of Order 2 Rule 2 of the CPC. For the present purposes, we will assume for the sake argument that the Learned Judge had the power to do so. Hence, we are deciding the Appeal on merits.
12. Before we deal with rival contentions, the provisions of Order 2 Rule 2 of the CPC need to be noted. They 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 al
