THIS

DAY,

THE

COURT

DELIVERED

THE

FOLLOWING:

JUDGMENT

This is an appeal which arises out of a suit which had

been instituted by one Revanamma seeking for partition in

respect of certain properties, which were left out in the

suit which had been filed by her sister Shantabai for

partition in O.S.No.71/2011.

The Trial Court took the view that the suit being one

for partition, the defendants stood in the same position as

plaintiffs and therefore, the bar under Order II Rule 2 of

CPC stood attracted as they had not chosen to include the

suit property and the earlier suit had already been decided

and the appeal was also dismissed. It accordingly

proceeded to reject the plaint filed by Revanamma.

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Being aggrieved, Revanamma preferred an appeal.

The Appellate Court, on consideration of the matter

also came to the conclusion that though Order II Rule 2 of

CPC did not bar the filing of a fresh suit for partition on

afresh demand for partition being turned down after the

previous suit filed for partition had been dismissed for non

inclusion of all the properties, the plaintiff had agitated her

right in the previous suit and had not whispered a single

word about the left out properties and the suit of the

plaintiff was hit by Order II Rule 2 of CPC and the rejection

of the plaint was right. It accordingly dismissed the

appeal.

As against this, the present second appeal has been

preferred and the same has been admitted for considering

the following substantial question of law:

“Whether the rejection of the plaint by

the Trial Court as confirmed by the

Appellate

Court

is

justified

on

the

proposition that the plaintiff could not have

instituted a suit in respect of a property

which had not included in the earlier suit

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for partition filed by her sister - the

defendant in O.S.No.71/2011, by reason of

Order II Rule 2 of CPC?”

6.

In a suit for partition, it is no doubt true that all the

parties are considered as plaintiffs. However, this is

because, in most cases, all the parties to the suit have an

undisputed pre-existing right in the suit properties and

there is no dispute regarding title over the said properties

and the suit would have been filed only to divide their pre-

existing rights in joint family properties by metes and

bounds. However, that cannot lead to an inference that all

the parties to a suit will have to be considered as plaintiffs

for the purposes of Order II Rule 2 of CPC.

7.

Order II Rule 2 of CPC¹ has been enacted basically to

ensure that that a plaintiff files a comprehensive suit and

includes all the claims that he is entitled to make against

1 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.

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the defendant at the time of filing of the suit. This also

ensures that a plaintiff does not file repeated suits against

the same defendant on the ground that he had omitted to

make a claim when filing the first suit. In essence, the

underlying objective under Rule 2 is to prevent multiplicity

of proceedings between the same parties.

8.

As to whether this analogy can be applied to a

defendant in the suit for partition would have to be

examined. It is to be stated here that a defendant in a suit

for partition is entitled to take up a plea in