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Reportable

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     6372      of     2012   ( Arising out of SLP (Civil) 1088 of 2010)

M/s Virgo Industries (Eng.) P.Ltd. … Appellant(s)

Versus

M/s.Venturetech Solutions P.Ltd. … Respondent(s)

With

CIVIL     APPEAL     No.      6373     of     2012   ( Arising out of SLP (Civil) 1184 of 2010)

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

Leave granted.

2. Both the appeals are directed against the common judgment  

and order dated 6.10.2009 passed by the High Court of Madras by  

which the High Court has refused to interdict the proceedings

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registered and numbered as OS Nos. 202 and 203 of 2007 pending  

in the Court of the learned District Judge, Thiruvallur filed by the  

respondents herein.    

3. The brief facts that would be required to be noticed for the  

purpose of the present adjudication may now be recapitulated.  

The respondent in the two appeals, as the plaintiff, instituted C.S  

No. 831 of 2005 and C.S. No. 833 of 2005 before the Madras High  

Court seeking a decree of permanent injunction restraining the  

appellant (defendant) from alienating, encumbering or dealing with  

the plaint schedule properties to any other third party other than  

the plaintiff. The aforesaid relief was claimed on the basis of two  

agreements of sale entered into by the plaintiffs and the defendant  

both on 27.7.2005 in respect of two different parcels of immovable  

property consisting of land and superstructures built on plot No. 65  

(old No.43) and plot No. 66 (old No.42), Second Main Road,  

Ambattur Industrial Estate, Chennai. In each of the aforesaid suits  

the plaintiff had stated that under the agreements of sale different  

amounts were paid to the defendants, yet, on the pretext that  

restrictions on the alienation of the suit land were likely to be issued  

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by the Central Excise Department on account of pending revenue  

demands, the defendants were attempting to frustrate the  

agreements in question. In the suits filed by the plaintiff it was also  

stated that as the period of six months  fixed for execution of the  

sale deeds under the agreements in question was not yet over, the  

plaintiff is not claiming specific performance of the agreements. The  

plaintiff, accordingly, sought leave of the court to omit to claim the  

relief of specific performance with liberty to sue for the said relief at  

a later point of time, if necessary. The two suits in question, i.e.,  

C.S. Nos. 831 and 833 of 2005 were filed by the plaintiff on  

28.8.2005 and 9.9.2005 respectively.

4. Thereafter on 29.5.2007, O.S. Nos. 202 and 203 were filed by  

the plaintiff in the Court of the District Judge, Tiruvallur seeking a  

decree against the defendant for execution and registration of the  

sale deeds in respect of the same property and for delivery of  

possession thereof to the plaintiff. In the aforesaid latter suits it was  

mentioned by the plaintiff that in respect of the same suit property  

it had earlier filed suit Nos. C.S. 831 and 833 of 2005 seeking the  

relief of permanent injunction. As the time for performance of the  

agreements of sale had not elapsed when C.S. No.831 and 833 of  

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2005 were instituted and the plaintiff was “under the bonafide belief  

that the defendants would perform the agreement”  the relief of  

specific performance was not claimed in the aforesaid suits.  

However, as inspite of a legal notice issued to the defendants on  

24.2.2006, the sale deeds had not been executed by the defendant  

the latter suits i.e. O.S.Nos 202 and 203 were instituted.  

5. While the matter was so situated the defendant in both the  

suits i.e. the present petitioner, moved the Madras High Court by  

filing two separate applications under Article 227 of the Constitution  

to strike off the plaints in O.S. Nos. 202 and 203 of 2007 on the  

ground that the provisions contained in Order II Rule 2 of the Civil  

Procedure Code, 1908 (for short the ‘CPC’) is a bar to the  

maintainability of both the suits. Before the High Court the  

defendant had contended that the cause of action for both sets of  

suits were the same, namely, the refusal or reluctance of the  

defendant to execute the sale deeds in terms of the agreements  

dated 27.7.2005. Therefore, at the time of filing of the first set of  

suits i.e. C.S. Nos. 831 and 833 of 2005, it was open for the plaintiff  

to claim the relief of specific performance. The plaintiff did not seek  

the said relief nor was leave granted by the Madras High Court. In  

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such circumstances, according to the defendant-petitioner, the suits  

filed by the plaintiff for specific performance i.e O.S. Nos. 202 and  

203 were barred under the provisions of Order II Rules 2 (3) of the  

CPC.    

6. The High Court, on consideration of the cases of the parties  

before it, took the view that on the date of filing of C.S. Nos. 831 and  

833 of 2005 the time stipulated in the agreements between the  

parties for execution of the sale deeds had not expired. Therefore,  

the cause of action to seek the relief of specific performance had not  

matured. According to the High Court it is only after filing of the  

aforesaid suits and on failure of the defendants to execute the sale  

deeds pursuant to the legal notice dated 24.2.2006 that the cause of  

action to seek the aforesaid relief of specific performance had  

accrued. The High Court, accordingly, took the view that the  

provisions of Order II Rule 2 (3) of the CPC were not attracted to  

render the subsequent suits filed by the plaintiff i.e. O.S. Nos. 202  

and 203 non-maintainable. The High Court also took the view that  

the provisions of Order II Rule 2 (3) of the CPC would render a  

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subsequent suit not maintainable, only, if the earlier suit has been  

decreed and the said provisions of the CPC will not apply if the first  

suit remains pending. In arriving at the aforesaid conclusion the  

learned Single Judge of the High Court considered himself to be  

bound by the decision of a Division Bench of the same High Court in  

the case of R.Vimalchand and M.Ratanchand v. Ramalingam,  

T.Srinivasalu & T. Venkatesaperumal1 . The High Court also held  

that though the application filed by the defendant under Article 227  

of the Constitution was not maintainable as the defendant had the  

remedy of approaching the learned trial court under Order VII Rule  

11 of the CPC, yet, in view of the elaborate discussions that have  

been made and findings and conclusions recorded it would be  

appropriate to decide the issues raised on merits.  It is the  

correctness of the aforesaid view of the High Court that has been  

assailed in the present appeals.  

7.  We have heard Mr. C.A. Sundaram, learned senior counsel for  

the appellants and Mr. S.Gurukrishna Kumar, learned counsel for  

the respondent.

1 2002 (3) MLJ page 177

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8. The necessary discussions that will have to follow may be  

initiated by extracting the provisions of Order II Rule 2 of the CPC:

“ORDER II

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.”

9. Order II Rule 1 requires every suit to include the whole of the  

claim to which the plaintiff is entitled in respect of any particular  

cause of action. However, the plaintiff has an option to relinquish  

any part of his claim if he chooses to do so. Order II Rule 2  

contemplates a situation where a plaintiff omits to sue or  

intentionally relinquishes any portion of the claim which he is  

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entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC  

makes it clear that he shall not, afterwards, sue for the part or  

portion of the claim that has been omitted or relinquished. It must  

be noticed that Order II Rule 2 (2) does not contemplate omission or  

relinquishment of any portion of the plaintiff’s claim with the leave  

of the court so as to entitle him to come back later to seek what has  

been omitted or relinquished. Such leave of the Court is  

contemplated by Order II Rule 2(3) in situations where a plaintiff  

being entitled to more than one relief on a particular cause of  

action, omits to sue for all such reliefs. In such a situation, the  

plaintiff is precluded from bringing a subsequent suit to claim the  

relief earlier omitted except in a situation where leave of the Court  

had been obtained. It is, therefore, clear from a conjoint reading of  

the provisions of Order II Rule 2 (2) and (3) of the CPC that the  

aforesaid two sub-rules of Order II Rule 2 contemplate two different  

situations, namely, where a plaintiff omits or relinquishes a part of  

a claim which he is entitled to make and, secondly, where the  

plaintiff omits or relinquishes one out of the several reliefs that he  

could have claimed in the suit. It is only in the latter situations  

where the plaintiff can file a subsequent suit seeking the relief  

omitted in the earlier suit proved that at the time of omission to  

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claim the particular relief he had obtained leave of the Court in the  

first suit.  

10. The object behind enactment of Order II Rule 2 (2) and (3) of  

the 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 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. The situations  

where the bar under Order II Rule 2 (2) and (3) will be attracted  

have been enumerated in a long line of decisions spread over a  

century now. Though each of the aforesaid decisions contain a clear  

and precise narration of the principles of law arrived at after a  

detailed analysis, the principles laid down in the judgment of the  

Constitution Bench of this Court in Gurbux Singh v. Bhooralal2  may  

be usefully recalled below:  

“In order that a plea of a bar under O. 2. r. 2(3), Civil  Procedure Code should succeed the defendant who raises  

2 AIR 1964 SC 1810

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the plea must 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 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 be no scope for the application of  the bar.”

The above principles have been reiterated in several later judgments  

of this Court. Reference by way of illustration may be made to the  

judgments Deva Ram & Anr. v. Ishwar Chand & Anr.3 and M/s.  

Bengal Waterproof Ltd. v. M/s Bombay Waterproof Manufacturing  

Co.& Anr.4  

11. The cardinal requirement for application of the provisions  

contained in Order II Rule 2(2) and (3), therefore, is that the cause  

of action in the later suit must be the same as in the first suit. It will  

be wholly unnecessary to enter into any discourse on the true  

meaning of the said expression, i.e. cause of action, particularly, in  

view of the clear enunciation in a recent judgment of this Court in  

the Church of Christ Charitable Trust and Educational Charitable  3 1995 (6) SCC 733 4 AIR 1997 SC 1398

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Society, represented by its Chairman v. Ponniamman Educational  

Trust represented by its Chairperson/Managing Trustee5. The huge  

number of opinions rendered on the issue including the judicial  

pronouncements available does not fundamentally detract from  

what is stated in Halsbury’s Law of England, (4th Edition). The  

following reference from the above work would, therefore, be apt for  

being extracted hereinbelow:  

“Cause of Action”  has been defined as meaning simply a  factual situation existence of which entitles one person to  obtain from the Court a remedy against another person. The  phrase has been held from earliest time to include every fact  which is material to be proved to entitle the plaintiff to  succeed, and every fact which a defendant would have a  right to traverse. ‘Cause of action’  has also been taken to  mean that particular action the part of the defendant which  gives the plaintiff his cause of complaint, or the subject- matter of grievance founding the action, not merely the  technical cause of action."

12. In the instant case though leave to sue for the relief of specific  

performance at a later stage was claimed by the plaintiff in C.S.  

Nos. 831 and 833 of 2005, admittedly, no such leave was granted  

by the Court. The question, therefore, that the Court will have to  

address, in the present case, is whether the cause of action for the  

first and second set of suits is one and the same. Depending on  

5 JT 2012 (6) SC 149

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such answer as the Court may offer the rights of the parties will  

follow.  

13. A reading of the plaints filed in C.S. Nos. 831 and 833 of 2005  

show clear averments to the effect that after execution of the  

agreements of sale dated 27.7.2005 the plaintiff received a letter  

dated 1.8.2005 from the defendant conveying the information that  

the Central Excise Department was contemplating issuance of a  

notice restraining alienation of the property. The advance amounts  

paid by the plaintiff to the defendant by cheques were also returned.  

According to the plaintiff it was surprised by the aforesaid stand of  

the defendant who had earlier represented that it had clear and  

marketable title to the property. In paragraph 5 of the plaint, it is  

stated that the encumbrance certificate dated 22.8.2005 made  

available to the plaintiff did not inspire confidence of the plaintiff as  

the same contained an entry dated 1.10.2004. The plaintiff,  

therefore, seriously doubted the claim made by the defendant  

regarding the proceedings initiated by the Central Excise  

Department. In the aforesaid paragraph of the plaint it was averred  

by the plaintiff that the defendant is “finding     an     excuse     to     cancel     the    

sale     agreement     and     sell     the     property     to     some     other     third     party.  ”   

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In the aforesaid paragraph of the plaint, it was further stated that  

“in     this     background,     the     plaintiff     submits     that     the     defendant     is    

attempting     to     frustrate     the     agreement     entered     into     between     the    

parties.  ”   

14. The averments made by the plaintiff in C.S. Nos. 831 and 833  

of 2005, particularly the pleadings extracted above, leave no room  

for doubt that on the dates when C.S. Nos. 831 and 833 of 2005  

were instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself  

had claimed that facts and events have occurred which entitled it to  

contend that the defendant had no intention to honour the  

agreements dated 27.7.2005. In the aforesaid situation it was open  

for the plaintiff to incorporate the relief of specific performance  

alongwith the relief of permanent injunction that formed the subject  

matter of above two suits. The foundation for the relief of permanent  

injunction claimed in the two suits furnished a complete cause of  

action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the  

relief of specific performance. Yet, the said relief was omitted and no  

leave in this regard was obtained or granted by the Court.

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15. Furthermore, according to the plaintiff, which fact is also  

stated in the plaints filed in C.S. Nos. 831 and 833, on the date  

when the aforesaid two suits were filed the relief of specific  

performance was premature inasmuch as the time for execution of  

the sale documents by the defendant in terms of the agreements  

dated 27.7.2005 had not elapsed. According to the plaintiff, it is  

only after the expiry of the aforesaid period of time and upon failure  

of the defendant to execute the sale deeds despite the legal notice  

dated 24.2.2006 that the cause of action to claim the relief of  

specific performance had accrued. The above stand of the plaintiff  

found favour with the High Court. We disagree. A suit claiming a  

relief to which the plaintiff may become entitled at a subsequent  

point of time, though may be termed as premature, yet, can not per  

se be dismissed to be presented on a future date. There is no  

universal rule to the above effect inasmuch as “the question of a  

suit being premature does not go to the root of the jurisdiction of the  

Court” as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of  

India6. In the aforesaid case this Court has taken the view that  

whether a premature suit is required to be entertained or not is a  

question of discretion and unless “there is a mandatory bar created  

6 2005(4) SCC 315

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by a statute which disables the plaintiff from filing the suit on or  

before a particular date or the occurrence of a particular event”, the  

Court must weigh and balance the several competing factors that  

are required to be considered including the question as to whether  

any useful purpose would be served by dismissing the suit as  

premature as the same would entitle the plaintiff to file a fresh suit  

on a subsequent date. We may usefully add in this connection that  

there is no provision in the Specific Relief Act, 1963 requiring a  

plaintiff claiming the relief of specific performance to wait for expiry  

of the due date for performance of the agreement in a situation  

where the defendant may have made his intentions clear by his  

overt acts.

16. The learned Single Judge of the High Court had considered,  

and very rightly, to be bound to follow an earlier Division Bench  

order in the case of R.Vimalchand and M.Ratanchand v. Ramalingam,  

T.Srinivasalu & T. Venkatesaperumal (supra) holding that the  

provisions of Order II Rule 2 of the CPC would be applicable only  

when the first suit is disposed of. As in the present case the second  

set of suits were filed during the pendency of the earlier suits, it was  

held, on the ratio of the aforesaid decision of the Division Bench of  

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the High Court, that the provisions of Order II, Rule 2(3) will not be  

attracted. Judicial discipline required the learned Single Judge of  

the High Court to come to the aforesaid conclusion. However,  we  

are unable to agree with the same in view of the object behind the  

enactment of the provisions of Order II Rule 2 of the CPC as already  

discussed by us, namely, that Order II Rule 2 of the CPC seeks to  

avoid multiplicity of litigations on same cause of action. If that is the  

true object of the law, on which we do not entertain any doubt, the  

same would not stand fully subserved by holding that the provisions  

of Order II Rule 2 of the CPC will apply only if the first suit is  

disposed of and not in a situation where the second suit has been  

filed during the pendency of the first suit. Rather, Order II, Rule 2 of  

the CPC will apply to both the aforesaid situations. Though direct  

judicial pronouncements on the issue are somewhat scarce, we find  

that a similar view had been taken in a decision of the High Court at  

Allahabad in Murti v. Bhola Ram7 and by the Bombay High Court in  

Krishnaji v. Raghunath8.

7 (1894) ILR 16 All 165 8 AIR 1954 BOM 125

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17. In the light of the above discussions we are of the view that the  

present appeals deserve to be allowed. Accordingly we allow the  

same and set aside the judgment and order dated 6.10.2009 passed  

by the High Court of Madras in C.R.P.PD. Nos. 3758 and 3759 of  

2007.  Consequently, we strike off the plaint in O.S.Nos.202 and  

203 of 2007 on the file of District Judge, Thiruvallur.

...……………………J.   [P. SATHASIVAM]

………………………J.   [RANJAN GOGOI]

New Delhi, September 07, 2012.      

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