Supreme Court of India
VURIMI PULLARAO S/O SATYANARAYANAversusVEMARI VYANKATA RADHARANI W/O DHANKOTESHWARRAO & ANR
- Citation
- 2019 INSC 1291
- Decided
- 27 November 2019
- Disposal
- Appeal(s) allowed
Holding
The bar under Order 2 Rule 2 is attracted; the subsequent suit for specific performance is barred because the plaintiff omitted to claim it without leave, and the cause of action is identical to that in the earlier injunction suit.
Summary
The appellant filed a suit for injunction to prevent the defendant from obstructing possession of agricultural land, and six months later filed a suit for specific performance of the same agreement to sell. The trial court dismissed the specific performance suit, holding that the appellant had omitted to claim that relief in the earlier injunction suit without obtaining leave of the court, thereby invoking the bar under Order 2 Rule 2 of the CPC. The appellate courts affirmed this view, finding that the cause of action for specific performance was identical to that in the injunction suit and that the appellant had effectively relinquished the claim. The appellant contended that the earlier suit's pleadings were not placed on record, arguing that the bar could not be applied without such evidence. The Supreme Court held that the certified copy of the earlier plaint was duly marked as an exhibit, so the plaintiff was not deprived of an opportunity to explain, and consequently the bar under Order 2 Rule 2 was attracted. The Court dismissed the appeal, upheld the High Court judgment, and ordered the defendant to refund the earnest money with interest under its Article 142 powers.
Issues considered
- Whether the suit for specific performance filed after an earlier suit for injunction is barred under Order 2 Rule 2 of the CPC.
- Whether the bar under Order 2 Rule 2 applies when the pleadings of the earlier suit are not placed in evidence.
- Whether the cause of action in the two suits is identical.
- Whether leave of the court is required to sue for a relief omitted in an earlier suit.
Legislation cited
- Code of Civil Procedure, 1908s. Order 2 Rule 2(1), s. Order 2 Rule 2(2), s. Order 2 Rule 2(3)
- Constitution of Indias. Article 142
Subjects
Order 2 Rule 2specific performanceinjunctioncause of actionreluctance of claimmultiplicity of litigationCivil Procedure CodeArticle 142refund of earnest moneycivil appeal
Judgment
[2019] 18 S.C.R. 1125 1125
VURIMI PULLARAO S/O SATYANARAYANA A
v.
VEMARI VYANKATA RADHARANI W/O
DHANKOTESHWARRAO & ANR
(Civil Appeal No. 9065 of 2019) B
NOVEMBER 27, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Code of Civil Procedure, 1908:
C
Order 2 Rule 2 – Relinquishment of part of claim – Bar under
Order 2 Rule 2 – When attracted – On facts, plaintiff–appellant
filed suit for injunction restraining defendant–respondent from
obstructing their possession – Six months later, plaintiff filed suit
for specific performance of agreement to sell the property –
D
Dismissal of earlier suit for injunction for default – Trial court
dismissed the suit for specific performance holding that the plaintiff
had omitted to sue for specific performance of the agreement
although the cause of action had accrued in favour of the plaintiff
at the time when the earlier suit for injunction was instituted; and
that the plaintiff had failed to seek the leave of the Court, when the E
suit for injunction was instituted, to file a subsequent suit on the
same cause of action seeking performance – Concurrent findings
by the courts below that the suit is barred under order 2 rule 2 –
Interference with – Held: In order to attract the applicability of the
bar enunciated under Order 2 Rule 2, the cause of action on which
F
the subsequent claim is founded ought to have arisen to the plaintiff
when enforcement of the first claim was sought before the Court –
In the instant case, the earlier suit for injunction contained a recital
of the agreement to sell; the price fixed; the payment of earnest
money; the demand for performance and the failure of the defendant
to perform the contract – Indeed, the plaintiff also asserted that G
she was going to institute a suit for specific performance of the
agreement – Cause of action for the suit for specific performance
had arisen when the plaintiff had notice of the denial by the
defendant to perform the contract – There was a complete identity
of the cause of action between the earlier suit and the cause of
H
1125
1126 SUPREME COURT REPORTS [2019] 18 S.C.R.
A action for the subsequent suit – This is a relief for which the plaintiff
was entitled to sue when the earlier suit for injunction was instituted,
however the plaintiff omitted to sue for specific performance –
Having omitted the claim for relief without the leave of the court,
the bar under Order 2 Rule 2(3) would stand attracted.
B Order 2 Rule 2(1) – Principle under – Held: Order 2 Rule
2(1) adopts the principle that the law does not countenance a
multiplicity of litigation – Hence, a plaintiff who is entitled to assert
a claim for relief on the basis of a cause of action must include the
whole of the claim – However, it is open to the plaintiff to relinquish
any portion of the claim in order to bring the suit within the
C jurisdiction of the court – Plaintiff who omits to sue in respect of or
intentionally relinquishes any portion of the claim, shall not
afterwards be entitled to sue in respect of the portion omitted or
relinquished – Order 2 Rule 2(3) stipulates that a person who is
entitled to more than one relief in respect of the same cause of action
D may sue for all or any of such reliefs – However, a plaintiff who
omits to sue for all the reliefs, without the leave of the Court, shall
not afterwards sue for any relief so omitted – Leave of the Court
will obviate the consequence which arises under Order 2 Rule 2(3).
Disposing of the appeals, the Court
E HELD: 1.1 Order 2 Rule 2(1) CPC is premised on the
foundation that the whole of the claim which a plaintiff CPC is
entitled to make in respect of a cause of action must be included.
However, it is open to the plaintiff to relinquish any portion of
the claim in order to bring the suit within the jurisdiction of the
F Court. Order 2 Rule 2(1) adopts the principle that the law does
not countenance a multiplicity of litigation. Hence, a plaintiff who
is entitled to assert a claim for relief on the basis of a cause of
action must include the whole of the claim. A plaintiff who omits
to sue in respect of or intentionally relinquishes any portion of
the claim, shall not afterwards be entitled to sue in respect of the
G portion omitted or relinquished. This is the mandate of Order 2
Rule 2(2). Order 2 Rule 2(3) stipulates that a person who is entitled
to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs. However, a plaintiff who
omits to sue for all the reliefs, without the leave of the Court,
H shall not afterwards sue for any relief so omitted. The leave of
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1127
the Court will obviate the consequence which arises under Order A
2 Rule 2(3). In the absence of leave being sought and granted, a
plaintiff who has omitted to sue for any of the reliefs to which
they were entitled to sue in respect of the same cause of action
would be barred from subsequently suing for the relief which has
been omitted in the first instance. But equally, it is necessary to
B
note that Order 2 Rule 2(2) does not postulate the grant of leave.
In other words, a plaintiff who has omitted to sue or has
intentionally relinquished any portion of the claim within the
meaning of Order 2 Rule 2(2), shall not afterwards be entitled to
sue in respect of the portion so omitted or relinquished.
[Para 11][1137-A-E] C
1.2 In order to attract the applicability of the bar enunciated
under Order 2 Rule 2, the cause of action on which the subsequent
claim is founded ought to have arisen to the plaintiff when
enforcement of the first claim was sought before the Court.
[Para 12][1138-C] D
1.3 In the instant case, the earlier suit for injunction was
instituted on 30 October 1996. Paragraph 2 of the plaint in the
suit for injunction contained a recital of the agreement to sell;
the price fixed for the bargain between the parties; the payment
of earnest money; the handing over of possession; the demand E
for performance and the failure of the defendant to perform the
contract. Indeed, the plaintiff also asserted that she was going to
institute a suit for specific performance of the agreement dated
26 October 1995. Under the agreement dated 26 October 1995,
time for completion of the sale was reserved until 25 October
1996. Notice of performance was issued on 11 October 1996 to F
which the defendant had replied on 13 October 1996. The cause
of action for the suit for specific performance had arisen when
the plaintiff had notice of the denial by the defendant to perform
the contract. On 30 October 1996 when the suit for injunction
was instituted, the plaintiff was entitled to sue for specific G
performance. There was a complete identity of the cause of action
between the earlier suit and the cause of action for the subsequent
suit. Yet, as the record indicates, the plaintiff omitted to sue for
specific performance. This is a relief for which the plaintiff was
entitled to sue when the earlier suit for injunction was instituted.
H
1128 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Having omitted the claim for relief without the leave of the Court,
the bar under Order 2 Rule 2(3) would stand attracted. [Para
13][1139-F-H; 1140-A-C]
1.4 The first appellate court, in the judgment which it
delivered upon remand took note of the fact that the defendant
B had by its application prayed for summoning the original record
of the earlier suit for injunction for proving the plaint. The plaintiff
opposed that plea with the assertion that a certified copy of the
document could be placed on record instead of summoning the
original record. The Civil Judge, Senior Division, accordingly
rejected the application on the ground that since the certified
C copy was filed on the record, it was unnecessary to call for the
original record. The defendant had moved another application in
the nature of a notice to admit the certified copy of plaint in the
earlier suit. This came to be allowed by the trial court. The first
appellate court noted that there was no objection from the plaintiff
D whereupon the certified copy of the plaint was marked as Exhibit.
In this background, the first appellate court was clearly justified
in coming to the conclusion that this is not a case where the
plaintiff was deprived of an opportunity to explain the pleadings
in the earlier suit. The finding that there was no prejudice to the
plaintiff cannot be faulted. The parties were all along aware of the
E pleadings, the nature of the objection to the maintainability of
the subsequent suit on the ground of the bar under Order 2 Rule
2 and the fact that the plaint in the earlier suit was brought on the
record. Indeed, it was at the behest of the plaintiff that a certified
copy of the plaint in the earlier suit was allowed to be brought on
F the record and marked as Exhibit 137. In the circumstances, the
bar under Order 2 Rule 2 is attracted. The plaintiff was entitled
to sue for specific performance when the earlier suit for injunction
was instituted but omitted to do so. There was an identity of the
cause of action in the earlier suit and the subsequent suit. The
earlier suit was founded on the plea of the plaintiff that it was in
G pursuance of the agreement to sell dated 26 October 1995 that
he had been placed in possession of the property. Yet, without
seeking the leave of the Court, the plaintiff omitted to sue for
specific performance and rested content with the prayer for
permanent injunction. In these circumstances, the finding arrived
H at by all the three courts that the subsequent suit filed is barred
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1129
under Order 2 Rule 2 does not warrant any interference in this A
appeal. [Para 15][1141-C-H; 1142-A-B]
1.5 Admittedly, the plaintiff has paid over an amount of
Rs 1,50,000 to the defendant at the time of execution of the
agreement on 26 October 1995. Apart from this, the plaintiff
deposited the balance of the consideration of Rs 30,000 before B
the first appellate court on 3 February 2012. The amount which
has been deposited by the plaintiff with the defendant must be
directed to refunded together with interest at the rate of nine
per cent per annum. Apart from this, the plaintiff would be entitled
to a refund of Rs 30,000 which was deposited with the trial court
on 3 February 2012 together with accrued interest, if any, thereon. C
In the event that the defendant fails to refund the said amount
within a period of two months from the date of receipt of a certified
copy of this order, it would be open to the plaintiff to move this
Court for appropriate directions. The directions are issued in
exercise of the jurisdiction under Article 142, maintaining the D
judgment of the High Court. [Para 17, 18][1142-C-F]
2. As regards, C.A. No. 9066 of 2019 (SLP(C)No.
122210/2017), it is directed that the defendant shall refund to
the plaintiff the amount of Rs 1,40,000 together with interest at
the rate of nine per cent per annum within two months from the E
date of receipt of a certified copy. The plaintiff is also entitled to
refund of an amount of Rs 30,000 deposited in the trial court
together with accrued interest, if any, thereon. The plaintiff would
be at liberty to apply before this Court for appropriate directions
if the amount is not paid by the defendant within a period of two
months from today. [Para 19][1142-G-H; 1143-A-B] F
Gurbux Singh v. Bhooralal AIR (1964) SC 1810 :
[1964] 7 SCR 831 – Distinguished.
Virgo Industries (Eng.) Private Limited v. Venturetech
Solutions Private Limited (2013) 1 SCC 625 : [2012] 7 G
SCR 933; Pramod Kumar v. Zalak Singh (2019) 6 SCC
621; Mohd. Khalil Khan v. Mahbub Ali Mian (1948)
SCC onLine PC 44 (1947–48) 75 IA 121 – referred
to.
H
1130 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Case Law Reference
[1964] 7 SCR 831 distinguished Para 8
[2012] 7 SCR 933 referred to Para 9
(1947–48) 75 IA 121 referred to Para 12
B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9065
of 2019.
From the Judgment and Order dated 06.01.2017 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal
No. 352 of 2015.
C
With
Civil Appeal No. 9066 of 2019.
Shashibhushan P. Adgaonkar, Adv. for the Appellant.
Satyajit A. Desai, Ms. Anagha S. Desai, Shobhit Dwivedi, Advs.
D for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
E
Civil Appeal No 9065 of 2019 (@ SLP (C) No 11811/2017)
2. This appeal arises from the judgment of a learned Single Judge
dated 6 January, 2017 at the Nagpur Bench of the High Court of Judicature
at Bombay in a Second Appeal. The High Court came to the conclusion
that the suit for specific performance instituted by the appellant was
F
barred by Order 2 Rule 2 of the Code of Civil Procedure, 19081 since
the appellant had instituted an earlier suit for injunction. The courts below
have noticed that while instituting the earlier suit, it was in the
contemplation of the appellant that a suit for specific performance of the
agreement to sell would be instituted, in spite of which no leave of the
G Court was sought under Order 2 Rule 2(3) of the CPC. This appeal thus
arises from the concurrent findings which have been recorded by the
Trial Court, the First Appellate Court and by the High Court in Second
Appeal holding the suit to be barred.
1
“CPC”
H
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1131
[DR DHANANJAYA Y CHANDRACHUD, J.]
3. The facts on which the appeal arises are as follows (parties A
will be referred to by their descriptions in the suit):
The subject of the dispute is agricultural land bearing Gat.No.111
admeasuring 3 H 05 R situated at Mauje Nayegaon, Taluka Nandura,
District Buldhana. On 26 October 1995, the original defendant entered
into an agreement to sell in favour of the original plaintiff in respect of B
the suit land for a total consideration of Rs 1,80,000. At the time of the
agreement to sell, an amount of Rs 1,50,000 was paid by way of earnest
to the defendant. The agreement stipulated that the sale deed would be
executed by 25 October 1996 against the payment of the remaining
consideration in the amount of Rs 30,000. On 11 October 1996, a notice
was issued by the plaintiff to the defendant for performance of the C
contract. The plaintiff claims to have been present before the Sub-
Registrar on 25 October 1996 for the registration of the sale deed.
However, by a reply dated 13 October 1996, the defendant refused to
execute the sale deed. In the meantime, it is alleged that on 16 October
1996, the defendant sought to obstruct the possession of the plaintiff D
over the suit land; the plaintiff claiming to have entered into possession
in pursuance of the agreement to sell. A suit for injunction was instituted
by the plaintiff, being Regular Civil Suit No 216 of 1997 before the Civil
Judge, Junior Division, Malkapur. Paragraph 2 of the plaint in the earlier
suit for injunction contained the following averments:
E
“The property mentioned in clause 1 of the plaint totally belongs
to the defendant for which the defendant had entered into a bargain
to sale with the plaintiff on 26.10.95 at a total price of
Rs.1,80,000/-. Against the said bargain the defendant had taken
on the same day from the plaintiff a sum of Rs.1,50,000/- in cash
and gave in writing the bargain letter in favour of the plaintiff. F
Regarding the remaining amount of Rs.30,000/- it was agreed by
the defendant that the same would be paid at the time of execution
of sale deed and thus the bargain letter was obtained in writing by
the plaintiff from defendant. On 26.10.1995 itself the defendant
had handed over possession of the agricultural land to the plaintiff. G
Since that time the agricultural property is in possession of the
plaintiff. Since the date of 26.10.1995 till today all formalities in
respect of this land such as cultivation and all agricultural processes
are being done by the plaintiff. On the said farm the plaintiff had
spent a lot of amount for the agricultural activities. Thereafter
H
1132 SUPREME COURT REPORTS [2019] 18 S.C.R.
A several times the plaintiff asked the defendant to execute the sale
deed of the said land in favour of the plaintiff. The plaintiff is
ready to behave as per the bargain. The plaintiff informed the
defendant that by paying the remaining amount of Rs.30,000/- to
the defendant the plaintiff is ready to get the sale deed of the said
property; but the defendant kept on prevaricating. Hence as
B
decided earlier between the plaintiff and on 11.10.96 the defendant
the plaintiff asked by sending a notice to the defendant to execute
the sale deed of the said farm on 15.10.96. That registered notice
was received by the defendant on 11.10.96; but on 15.10.96 the
defendant did not remain present in the office of Sub-Registrar
C Nandura and did not register the said sale deed in favour of plaintiff
when the plaintiff was present there with a cash of Rs.30,000/- to
be paid to the defendant. Hence for getting the fulfilment of the
agreement took place between plaintiff and the defendant on
26.10.1995 the plaintiff will file a suit in the Court of Hon’ble Civil
Judge Senior Division, Khamgaon.”
D
4. The reliefs sought in the suit were a declaration that the plaintiff
was in possession of the land and a permanent injunction restraining the
defendant from obstructing the possession of the plaintiff. The suit for
injunction was instituted on 30 October 1996. Admittedly, no leave of the
Court was sought under Order 2 Rule 2(3) of the CPC in the earlier suit
E to institute a suit for specific performance subsequently.
5. On 30 April 1997, the appellant-plaintiff instituted Special Suit
No 61/1997 before the Civil Judge, Senior Division, Khamgaon seeking
specific performance of the agreement to sell the property. The earlier
suit for injunction was dismissed in default on 16 September 2005. The
F defendant contested the maintainability of the suit for specific
performance raising the bar under Order 2 Rule 2 of the CPC. No issue
was framed by the Trial Court with reference to the provisions of Order
2 Rule 2. Nonetheless, the Trial Court by its judgment dated 13 October
2005 came to the conclusion that the plaintiff had omitted to sue for
G specific performance of the agreement although the cause of action had
accrued in favour of the plaintiff at the time when the earlier suit for
injunction (RCS No 216/1997) was instituted on 30 October 1996.
Adverting to the certified copy of the plaint, which had been placed on
the record, the learned trial judge noted that the plaint in the earlier suit
made specific reference to the fact that the plaintiff would file a suit on
H
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1133
[DR DHANANJAYA Y CHANDRACHUD, J.]
the basis of the agreement to sell for claiming specific performance. A
The trial judge observed that the plaintiff had failed to seek the leave of
the Court, when the suit for injunction was instituted, to file a subsequent
suit on the same cause of action seeking performance. Consequently,
the suit for specific performance was dismissed. In appeal, the Adhoc
District Judge-I, Khamgaon by a judgment dated 6 January 2012 came
B
to the conclusion that the bar under Order 2 Rule 2 was not attracted. In
coming to this conclusion, the First Appellate Court held that:
(i) No specific issue had been framed by the Trial Court in this
regard;
(ii) The pleadings in the earlier suit had not been proved to C
establish that the earlier suit and the subsequent suit were
based on the same cause of action;
(iii) No opportunity was furnished to the plaintiff to explain his
pleadings in the plaint in the earlier suit; and
(iv) The Trial Court ought to have framed a specific issue on D
the bar under Order 2 Rule 2.
On merits, the first appellate court adverted to the findings of the
Trial Court and came to the conclusion that the suit for specific
performance was liable to be decreed. The appeal was accordingly
allowed and a decree for specific performance was passed with a direction E
to the plaintiff to deposit the balance consideration of Rs 30,000 within a
period of one month. The plaintiff claims to have deposited the balance
consideration on 3 February 2012.
6. A Second Appeal was instituted before the High Court against
the decree for specific performance. By a judgment dated 2 April 2013, F
a learned Single Judge of the High Court observed that while dealing
with the appeal the appellate court ought to have explored the possibility
of remand, inter alia, in view of provisions of Order XLI Rule 23 of the
CPC. The High Court set aside the judgment of the first appellate court
and remanded the case back to it by consent of parties to decide the
G
appeal afresh.
7. On remand, the District Judge-I, Malkapur framed as one of
the points for consideration, whether the suit was barred by Order 2
Rule 2 of the CPC. The District Judge noted that the certified copy of
the plaint in the earlier suit was on record and marked as Exhibit 137.
H
1134 SUPREME COURT REPORTS [2019] 18 S.C.R.
A The plaint contained a reference to the execution of the agreement to
sell dated 26 April 2015; to the payment of earnest of Rs 1,50,000 and to
the defendant having been called upon on 11 October 1996 to execute
the sale deed. The District Judge did not accept the objection of the
plaintiff that the plaint in the earlier suit had not been shown when the
plaintiff was in the witness box for the purpose of adducing evidence.
B
The first appellate court in that context noted what had transpired during
the course of the proceedings:
“It is material to note that by application dated 22.2.2005 vide
Ex.-117 before the Trial Court the defendant has prayed for calling
the original record of RCS No.216/1997 from the file of Nandura
C Court for proving the documents. The plaintiff has opposed that
application with a say that certified copies of the documents can
be placed on record instead of calling the original record.
Accordingly, the learned Civil Judge, Sr.Dn., Khamgaon, has
rejected the application on the ground that since certified copy
D can be filed on record, it is not necessary to call the original record.
The record of the Trial Court further shows that one the same
day i.e., on 22.2.2005, the defendant has moved another application
vide Ex.118 in the nature of notice to admit the document i.e., the
certified copy of plaint in RCS No.216/1997. That application came
to be allowed by the learned Civil Judge, Sr. Dn., Khamgaon. It
E appears that in view of no objection from the plaintiff certified
copy of the plaint in RCS no.216/1997 came to marked Ex.137.
Therefore, now, plaintiff cannot say that opportunity was not given
to him to explain his pleadings in RCS No.216/1997.
The first appellate court noted that certified copy of the plaint in
F the earlier suit for injunction (Exhibit 94) was placed before the Trial
Court and its production was allowed. It was held that in order to support
the decree passed by the Trial Court it was not necessary for the
respondent in the appeal to file a memorandum of cross objections
challenging a particular finding rendered by the Trial Court. Ultimately, it
G held that when the suit for injunction was instituted, it was open to the
plaintiff to incorporate the relief of specific performance together with
the relief of permanent injunction. The foundation for the relief of
permanent injunction claimed in the earlier suit furnished a complete
cause of action to sue for the relief of specific performance. All the
essential ingredients on the basis of which the subsequent suit was
H instituted existed on the date when the earlier suit had been filed. Since
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1135
[DR DHANANJAYA Y CHANDRACHUD, J.]
the plaintiff omitted to seek the relief of specific performance which A
was available when the earlier suit for injunction was instituted, the Court
inferred that the plaintiff had relinquished the claim for specific
performance. Finally, the first appellate court also held that after exploring
the possibility of remand, it had come to the conclusion that it was
unnecessary to do so since the parties had proceeded fully to trial knowing
B
their rival cases and had led evidence. In the circumstances, the absence
of an issue did not (it was held) cause any prejudice, warranting a remand.
The judgment of the first appellate court was upheld by the High Court
in a Second Appeal on 6 January 2017. That is how the proceedings
before this Court arise under Article 136 of the Constitution.
8. Mr.Shashibhushan P. Adgaonkar, learned counsel appearing on C
behalf of the appellant submitted that in order to attract the bar under
Order 2 Rule 2, an essential requirement is that there must be an identity
between the cause of action which forms the basis of the earlier suit and
the cause of action on which the claim in the later suit is based. Relying
on the decision of the Constitution Bench in Gurbux Singh v Bhooralal2, D
it was urged that for the bar under Order 2 Rule 2 to be established, it is
necessary for the defendant to file the pleadings in the previous suit in
evidence so as to prove to the Court in the subsequent suit that there is
an identity of the cause of action in the two suits. In the present case it
was submitted that the defendant failed to do so. Learned Counsel urged
that the plaint in the earlier suit was not shown to the plaintiff in the E
subsequent suit at the stage when the evidence was adduced, as a result
of which the plaintiff was deprived of the opportunity to establish the
absence of identity between the causes of action in the two suits.
Moreover, it was submitted that the Trial Court proceeded to hold that
the suit for specific performance was barred under Order 2 Rule 2 without F
framing a specific issue. Learned counsel submitted that the first appellate
court could have framed an issue and sought a determination thereon by
the Trial Court after allowing evidence to be adduced or it could have
alternatively made the determination itself upon production of additional
evidence under Order XLI Rule 27. Neither of these courses of action
was adopted and hence it has been submitted that the bar under Order 2 G
Rule 2 does not stand attracted.
9. On the other hand, supporting the view which weighed with the
Trial Court, the appellate court and the High Court, it has been urged by
2
AIR 1964 SC 1810 H
1136 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Mr Satyajit A Desai, that the plaint in the earlier suit contains a clear
reference to the agreement to sell, to the payment of consideration and
to the notice of performance that was issued by the plaintiff. Not only
this, para 2 of the plaint contained a specific recital of the fact that the
plaintiff intended to institute a suit for specific performance before the
Court of the Civil Judge, Senior Division, Khamgaon. Despite this, it
B
was submitted that the plaintiff omitted to seek leave of the court under
Order 2 Rule 2(3). This, it was submitted, must necessarily result in the
bar under the provision being attracted. Learned counsel submitted that
the distinction with the situation as it arose before the Constitution Bench
in Gurbux Singh (supra) is that in the present case, the plaint in the
C earlier suit was duly marked as an Exhibit without any objection from
the plaintiff. Learned counsel in that regard has also relied upon on the
decisions of this Court in Virgo Industries (Eng.) Private Limited v
Venturetech Solutions Private Limited 3 and Pramod Kumar v
Zalak Singh4.
D 10. Order 2 Rule 2 is extracted below:
“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
E 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.
F (3) Omission to sue for one of several relief.-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.
G 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.”
3
(2013) 1 SCC 625
H 4
(2019) 6 SCC 621
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1137
[DR DHANANJAYA Y CHANDRACHUD, J.]
11. Order 2 Rule 2(1) is premised on the foundation that the whole A
of the claim which a plaintiff is entitled to make in respect of a cause of
action must be included. However, it is open to the plaintiff to relinquish
any portion of the claim in order to bring the suit within the jurisdiction of
the Court. Order 2 Rule 2(1) adopts the principle that the law does not
countenance a multiplicity of litigation. Hence, a plaintiff who is entitled
B
to assert a claim for relief on the basis of a cause of action must include
the whole of the claim. A plaintiff who omits to sue in respect of or
intentionally relinquishes any portion of the claim, shall not afterwards
be entitled to sue in respect of the portion omitted or relinquished. This is
the mandate of Order 2 Rule 2(2). Order 2 Rule 2(3) stipulates that a
person who is entitled to more than one relief in respect of the same C
cause of action may sue for all or any of such reliefs. However, a plaintiff
who omits to sue for all the reliefs, without the leave of the Court, shall
not afterwards sue for any relief so omitted. The leave of the Court will
obviate the consequence which arises under Order 2 Rule 2(3). In the
absence of leave being sought and granted, a plaintiff who has omitted
D
to sue for any of the reliefs to which they were entitled to sue in respect
of the same cause of action would be barred from subsequently suing
for the relief which has been omitted in the first instance. The grant of
leave obviates the consequence under Order 2 Rule 2(3). But equally, it
is necessary to note that Order 2 Rule 2(2) does not postulate the grant
of leave. In other words, a plaintiff who has omitted to sue or has E
intentionally relinquished any portion of the claim within the meaning of
Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of
the portion so omitted or relinquished.
12. The rationale underlying in Order 2 Rule 2 has been dealt with
in several judgments including in the decision of the Privy Council in F
Mohd. Khalil Khan v Mahbub Ali Mian5, the Privy Council held:
“(1) The correct test in cases falling under Order 2 Rule 2, is
‘whether the claim in the new suit is in fact founded upon a cause
of action distinct from that which was the foundation for the former
suit.” G
(2) The cause of action means every fact which will be necessary
for the plaintiff to prove if traversed in order to support his right to
the judgment.
5
1948 SCC onLine PC 44 : (1947-48) 75 IA 121 H
1138 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (3) If the evidence to support the two claims is different, then the
causes of action are also different.
(4) The causes of action in the two suits may be considered to be
the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence
B that may be set up by the defendant, nor does it depend upon the
character of the relief prayed for by the plaintiff. It refers to the
media upon which the plaintiff asks the court to arrive at a
conclusion in his favour.”
In order to attract the applicability of the bar enunciated under
C Order 2 Rule 2, the cause of action on which the subsequent claim is
founded ought to have arisen to the plaintiff when enforcement of the
first claim was sought before the Court.
In Virgo Industries (Eng.) Private Limited (supra), the
provisions of Order 2 Rule 2 came up for consideration before a two
D judge Bench of this Court. The Court observed:
“10. The object behind the enactment of Order 2 Rules 2(2) and
(3) CPC is not far to seek. The Rule engrafts a laudable principle
that discourages/prohibits vexing the defendant again and again
by multiple suits except in a situation where one of the several
E reliefs, though available to a plaintiff, may not have been claimed
for a good reason. A later suit for such relief is contemplated only
with the leave of the court which leave, naturally, will be granted
upon due satisfaction and for good and sufficient reasons.”
These principles have been reiterated in the more recent decision
F in Pramod Kumar (supra).
13. In the present case, the earlier suit for injunction was instituted
on 30 October 1996. Paragraph 2 of the plaint in the suit for injunction
contained a recital of the agreement to sell dated 26 October 1995; the
price fixed for the bargain between the parties; the payment of earnest
G money; the handing over of possession; the demand for performance
and the failure of the defendant to perform the contract. Indeed, the
plaintiff also asserted that she was going to institute a suit for specific
performance of the agreement dated 26 October 1995. Under the
agreement dated 26 October 1995, time for completion of the sale was
reserved until 25 October 1996. Notice of performance was issued on
H
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1139
[DR DHANANJAYA Y CHANDRACHUD, J.]
11 October 1996 to which the defendant had replied on 13 October A
1996. The cause of action for the suit for specific performance had
arisen when the plaintiff had notice of the denial by the defendant to
perform the contract. On 30 October 1996 when the suit for injunction
was instituted, the plaintiff was entitled to sue for specific performance.
There was a complete identity of the cause of action between the earlier
B
suit (of which paragraph 2 of the plaint has been reproduced in the
earlier part of the judgment) and the cause of action for the subsequent
suit. Yet, as the record indicates, the plaintiff omitted to sue for specific
performance. This is a relief for which the plaintiff was entitled to sue
when the earlier suit for injunction was instituted. Having omitted the
claim for relief without the leave of the Court, the bar under Order 2 C
Rule 2(3) would stand attracted.
14. But the case of the plaintiff in appeal is that in order that the
bar under Order 2 Rule 2 be attracted, it is necessary that the plaint in
the earlier suit must be proved in evidence. In the present case it was
submitted that this was not done. The basis of above submission is the D
judgment of the Constitution Bench in Gurbux Singh (supra). Now it is
necessary to analyse the facts which led to the decision of the Constitution
Bench. The respondent had instituted a suit against the claimant for
possession of certain property and for mesne profits. The allegation in
the plaint was that the plaintiff was the absolute owner of the property
of which the defendant was in wrongful possession and that despite a E
demand he had failed to vacate the property, thereby attracting the liability
to pay mesne profits. The plaint contained a reference to a previous suit
instituted by the plaintiff and his mother in which a claim had been made
against the defendant for the recovery of mesne profits in regard to the
same property. It was also stated that mesne profits had been decreed F
in the suit. In the written statement, the appellant-defendant raised a
plea to the maintainability of the suit on the ground of the bar under
Order 2 Rule 2. As an issue was struck it was argued as a preliminary
issue. The Court recorded a finding that the suit was barred by the
provisions of Order 2 Rule 2. The Court held that without the pleadings
in the earlier suit being made a part of th record, the trial court decided G
the issue as a matter of deduction. Consequently, the District Judge held
that the bar under Order 2 Rule 2 could not have been entertained without
the plaint in the earlier suit being made a part of the record. However,
the first appellate court also held that if the point did arise for consideration,
it would have decided it in favour of the plaintiff and treated the cause of H
1140 SUPREME COURT REPORTS [2019] 18 S.C.R.
A action for a suit for mesne profit as distinct from a cause of action for
the relief of possession of a property from a trespasser. However, on
the first point that there was no material on the record to justify the plea
of a bar under Order 2 Rule 2, the District Judge did not rest his decision
on his view of the law as regards the construction of Order 2 Rule 2(3).
Accordingly, he set aside the dismissal of the suit and remanded it to the
B
Trial Court for a decision on merits. The High Court dismissed the Second
Appeal as a consequence of which proceedings came up before this
Court. In that context, the Constitution Bench held:
“6. In order that a plea of a bar under O.2 R.2(3), Civil Procedure
Code should succeed the defendant who raises the plea must
C make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based; (2)
that in respect of that cause of action the plaintiff was entitled to
more than one relief; (3) that being thus entitled to more than one
relief the plaintiff, without leave obtained from the Court omitted
D to sue for the relief for which the second suit had been filed.
From this analysis it would be seen that the defendant would have
to establish primarily and to start with, the precise cause of action
upon which the previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit was filed
and that on which the claim in the later suit is based there would
E be no scope for the application of the bar. No doubt, a relief which
is sought in a plait could ordinarily be traceable to a particular
cause of action but this might, by no means, be the universal rule.
As the plea is a technical bar it has to be established satisfactorily
and cannot be presumed merely on basis of inferential reasoning.
F It is for this reason that we consider that a plea of a bar under O.2
R.2, Civil Procedure Code can be established only if the defendant
files in evidence the pleadings in the previous suit and thereby
proves to the Court the identity of the cause of action in the two
suits.”
G On the facts of the case, the Constitution Bench noted, that it was
common ground that the pleadings in the earlier suit had not been filed
by the appellant in the subsequent suit as evidence in support of the plea
under Order 2 Rule 2. This Court observed that in the absence of the
pleadings, the decision of the Trial judge was merely as a matter of
opinion. This Court agreed with the view which had been taken by the
H
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1141
[DR DHANANJAYA Y CHANDRACHUD, J.]
District Judge who had noticed the deficiency in the case of the appellant: A
without the plaint in the previous suit being on the record, a plea of the
bar under Order 2 Rule 2 was not maintainable. As a matter of fact, the
High Court also noted that neither the plaint nor the written statement in
the earlier suit had been filed and the only document which was available
was the judgment in appeal. It was in this background that the Court
B
observed that in the absence of the pleadings in the earlier suit, it was
not possible to enter a finding on the identity of the cause of action.
15. The situation as it obtained in the case before the Constitution
Bench is distinct from the events as they transpired in the present case.
The first appellate court, in the judgment which it delivered upon remand
took note of the fact that the defendant had by its application at Exhibit C
117 prayed for summoning the original record of the earlier suit for
injunction for proving the plaint. The plaintiff opposed that plea with the
assertion that a certified copy of the document could be placed on record
instead of summoning the original record. The Civil Judge, Senior Division,
accordingly rejected the application on the ground that since the certified D
copy was filed on the record, it was unnecessary to call for the original
record. The defendant had moved another application at Exhibit 118 in
the nature of a notice to admit the certified copy of plaint in the earlier
suit. This came to be allowed by the Trial Court. The first appellate
court noted that there was no objection from the plaintiff whereupon the
certified copy of the plaint was marked as Exhibit 137. In this background, E
the first appellate court was clearly justified in coming to the conclusion
that this is not a case where the plaintiff was deprived of an opportunity
to explain the pleadings in the earlier suit. The finding that there was no
prejudice to the plaintiff cannot be faulted. The parties were all along
aware of the pleadings, the nature of the objection to the maintainability F
of the subsequent suit on the ground of the bar under Order 2 Rule 2 and
the fact that the plaint in the earlier suit was brought on the record.
Indeed, it was at the behest of the plaintiff that a certified copy of the
plaint in the earlier suit was allowed to be brought on the record and
marked as Exhibit 137. In the circumstances, we are of the view that
the bar under Order 2 Rule 2 is attracted. The plaintiff was entitled to G
sue for specific performance when the earlier suit for injunction was
instituted but omitted to do so. There was an identity of the cause of
action in the earlier suit and the subsequent suit. The earlier suit was
founded on the plea of the plaintiff that it was in pursuance of the
agreement to sell dated 26 October 1995 that he had been placed in H
1142 SUPREME COURT REPORTS [2019] 18 S.C.R.
A possession of the property. Yet, without seeking the leave of the Court,
the plaintiff omitted to sue for specific performance and rested content
with the prayer for permanent injunction. In these circumstances, we
agree with the finding which has been arrived at by all the three courts
that the subsequent suit filed is barred under Order 2 Rule 2 does not
warrant any interference in this appeal. The appeal would accordingly
B
have to stand dismissed and we order accordingly.
16. However, there is one aspect of the case which, in our view,
warrants a recourse to the power of this Court under Article 142 to
render a complete justice between the parties.
C 17. Admittedly, the plaintiff has paid over an amount of Rs 1,50,000
to the defendant at the time of execution of the agreement on 26 October
1995. Apart from this, the plaintiff deposited the balance of the
consideration of Rs 30,000 before the first appellate court on 3 February
2012 (a copy of the receipt is marked as Annexure P-4 to the appeal).
We are of the view that the amount which has been deposited by the
D plaintiff with the defendant must be directed to refunded together with
interest at the rate of nine per cent per annum. Apart from this, the
plaintiff would be entitled to a refund of Rs 30,000 which was deposited
with the Trial Court on 3 February 2012 together with accrued interest,
if any, thereon. In the event that the defendant fails to refund the above
E amount within a period of two months from the date of receipt of a
certified copy of this order, it would be open to the plaintiff to move this
Court for appropriate directions.
18. Subject to the above directions which we have issued in exercise
of our jurisdiction under Article 142, we dispose of the appeal, maintaining
F the judgment of the High Court.
Civil Appeal No.9066 of 2019 (@ SLP (C) No.122210/2017)
19. The present appeal has been heard together with the
accompanying Civil Appeal which has been decided by the above
judgment. Learned counsel appearing on behalf of the contesting parties
G have agreed that the only point of distinction is that an amount of Rs
1,40,000 has been deposited as earnest money and an amount of Rs
30,000 was deposited before the Trial Court in pursuance of the order of
the first appellate court decreeing the suit. We direct that the defendant
shall refund to the plaintiff the amount of Rs 1,40,000 together with
interest at the rate of nine per cent per annum within two months from
H
VURIMI PULLARAO v. VEMARI VYANKATA RADHARANI 1143
[DR DHANANJAYA Y CHANDRACHUD, J.]
the date of receipt of a certified copy. The plaintiff is also entitled to A
refund of an amount of Rs 30,000 deposited in the Trial Court together
with accrued interest, if any, thereon. The plaintiff would be at liberty to
apply before this Court for appropriate directions if the amount is not
paid by the defendant within a period of two months from today.
20. The appeal is accordingly disposed of. B
Nidhi Jain Appeals disposed of.
C
D
E
F
G
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