JUDGMENT

Dated this the 2nd day of February 2021 A.Muhamed Mustaque, J.

The appellants are the respondents in O.P.No.1153/2010 on the file of the Family Court, Kottayam at Ettumanoor. The said original petition was filed for declaration of title, recovery of possession and injunction, both prohibitory and mandatory. The above original petition was allowed in part.

2. The brief facts involved in this case are as follows:

The first appellant married the respondent on

10.05.2003. Thereafter, the respondent filed O.P.No.879/2009 for divorce. Along with the aforesaid original petition, the respondent also filed O.P.No.880/2009 for return of gold ornaments. In that claim, the appellants raised a counter claim for declaration of title of the plaint schedule property which is the subject matter of the present petition before the Family Court. The matters were tried together. O.P.No.879/2009 was allowed granting divorce. That has become final. The claim of the respondent in O.P.No.880/2009 was allowed in part and she was given decree of realisation of Rs.50,000/- and also she was allowed to recover 12 sovereigns of gold ornaments or its value with 7% interest.

3. The counter claim filed by the appellants seeking declaration was dismissed. There was a challenge against allowing the claim in O.P.No.880/2009 and dismissing the counter claim at the instance of the appellants. It is submitted at the Bar that those appeals have also been dismissed.

4. In the counter claim filed by the appellants in O.P.No.880/2009, there is a finding by the Family Court that subject matter of the present original petition belongs to the respondent. That finding has now become final. In the light of the finding, the Family Court granted decree as sought by the respondent. Assailing the decree, the present appeal is filed.

5. The learned counsel for the appellants would argue that the Family Court ought to have rejected the relief sought for as there was an omission on the part of the respondent to include the relief now sought in the earlier petition filed by her in O.P.No.880/2009. According to the learned counsel, when the appellants raised a counter claim, a cause of action arose to the respondent to include the claim now made before the Family Court.

6. The learned counsel for the respondent, defending the impugned judgment, argued that the earlier claim made by the respondent was only for return of gold ornaments and value and no cause of action arose for recovery of possession. Therefore, is a distinct cause of action and it cannot be clubbed with the cause of action of return of gold ornaments. It is submitted that if such reliefs were sought jointly, the original petition itself would have been dismissed for misjoinder of cause of action.

7. Order II Rule 2(1) of the Code of Civil Procedure, 1908 states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Order II Rule 2(2) further states that 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 of his claim, so omitted or relinquished. Therefore, the argument of the appellants is that when cause of action arose to the respondent in an earlier suit for return of gold ornaments, omission on the part of the respondent to include a relief for declaration and recovery of possession would entail subsequent suit hit by Order II Rule 2.

8. The suit for return of gold ornaments given during the marriage is a distinct cause of action as far as the immovable property is concerned. Merely for the reason that the appellants had raised a counter claim in that petition for return of gold ornaments by way of a counter claim seeking declaration of the property, that will not attract Order II Rule 2. The cause of action is not defined under the Code of Civil Procedure. The cause of action means a bundle of facts giving rise to the action. The wife has