Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 1055 of 2019

PRAMOD KUMAR & ANR.            Appellant(s)

                               VERSUS

ZALAK SINGH & ORS.       Respondent(s)

J U D G M E N T

K.M. JOSEPH  , J.

1. This  appeal  by  special  leave  is  directed

against  the  judgment  and  order  dated  31.08.2012

passed by the High Court in Second Appeal No. 5 of

1995.  By the impugned judgment, the High Court

has  set  aside  the  concurrent  findings  of  the

Courts below resulting in dismissal of the suit

filed  by  the  respondents  (plaintiffs)  on  the

ground that the suit was barred by Order II Rule 2

of the Code of Civil Procedure, 1908 (hereinafter

referred to ‘the CPC’) as also constructive  res

judicata.  The High Court has remanded the matter

to the First Appellate Court to decide on merits.

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2. One  Tikaram  was  the  husband  of  respondent

No.4 and the father of respondent Nos. 1 to 3.  He

was holding 8.22 acres of land in Khasra No.189 at

Village Gondia in his name.  On 21.01.1959, he

sold the land to the extent of 3.20 acres out of

the  total  8.22  acres  to  the  appellants  and

thereafter, on 11.02.1959, he sold the remaining

portion  of  4.82  acres  of  land,  which  was  the

balance out of 8.22 acres, also to the appellants.

Tikaram passed away on 15.07.1959.   

2. The respondents filed a suit (bearing Civil

Suit No. 131 of 1963) for setting aside the Sale

Deed dated 21.01.1959 and for other reliefs.  The

allegation made by the respondents in the suit was

that  the  land  was  a  joint  family  ancestral

property and he had sold it for immoral purposes

and in a manner prejudicial to the interest of

joint family.  He was addicted to drink and there

was no necessity to sell the property.  

3. On 31.01.1969, the Trial Court dismissed the

said suit holding that Tikaram was the owner of

the property due to the partition effected in the

year 1957.  Hence, he had the right to sell the

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suit  land.   The  appellants  were  bona  fide

purchasers.   

4. Aggrieved by the decree of the Trial Court,

the  respondents  filed  an  appeal  (bearing  Civil

Appeal NO. 22 of 1969) on 10.02.1971.   

5. The respondents again filed the present suit

(bearing Civil Suit No. 34 of 1971) challenging

the Sale Deed dated 11.02.1959 and seeking other

reliefs.  It is the said suit which came to be

dismissed both by the Trial Court and the First

Appellate  Court.  The  Trial  Court  answered  the

issues including whether the Suit is barred under

Order II Rule 2 and also affected by constructive

res judicata. It found that the suit is liable to

be dismissed on the ground of Order II Rule 2 and

constructive  res  judicata.  The  dismissal  by  the

Appellate Court was essentially on the basis of

the provisions of Order II Rule 2 of the CPC as

also constructive  res judicata  on the score that

the  second  alienation  dated  11.02.1959  ought  to

have been the subject matter of the earlier suit.

The Appellate Court, in fact, found that the Trial

Court  was  right  in  answering  the  other  points.

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It is to be noted that the judgment of the Trial

Court in the first suit came to be reversed in the

civil appeal and the same has become final.   

6. The High Court, however, reversing the orders

of both the courts found that Order II Rule 2 will

not be a bar.  For Order II Rule 2, the cause of

action in the first suit and the cause of action

in the second suit must be identical.  In this

case, there were two alienations by the Tikaram

giving rise to two cause of actions.  It is also

found  that  constructive  res  judicata will  not

apply.   

7. We have heard learned counsel for the parties

and perused the record.   

8. Learned counsel for the appellants contended

that the High Court has clearly erred in coming to

the conclusion that Order II Rule 2 was not a bar.

Order II Rule 2 is indeed attracted.  He  took  us

through  the  pleadings  in  the  two  suits  and

contended that the cause of action in the second

suit is identical with the cause of action in the

first suit.  As on the date of the institution of

the  first  suit,  the  second  alienation  was  very

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much available to be impugned and it is not open

to the respondents to split the cause of action in

separate suits and seek relief which is precisely

what  has  been  done  by  the  respondents  in  this

case.  He relied upon the judgment of this Court

in Coffee Board v. Ramesh Exports Private Limited  1

and  A.B.C.  Laminart  Pvt.  Ltd.  &  Anr. v.  A.P.

Agencies, Salem  2.

9. Learned counsel for the respondents drew our

attention to Order VII Rule 1.  He points out that

the  cause  of  action  in  both  the  suits  are

different.  He also drew our attention to Article

109 of the Limitation Act, 1963, which reads as

follows:

109.

By a Hindu governed  by Mitakshara law to set aside his  father’s alienation  of ancestral  property.

Twelve years When the alienee  takes possession of  the property.

10. He  would  contend  that  the  period  of

limitation  as  far  as  the  second  sale  deed  is

1 (2014) 6 SCC 424 2 (1989) 2 SCC 163

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different from the period of limitation as far as

the first sale deed is concerned.  The period of

limitation  as  far  as  the  second  alienation  is

concerned will expire only on the expiry of 12

years from the date of taking of possession by the

alienee.  He further relied on the judgment of

this Court in Alka Gupta v. Narender Gupta  3.

11. The first question, which we are called upon

to decide, is whether the High Court was right in

holding that the bar, under Order II Rule 2, will

not apply in the facts of this case.   

12. Before,  we  advert  to  the  decisions  on  the

point  it  would  be  profitable  to  refer  to  the

pleadings in two suits.   

13. In Civil Suit No. 131 of 1963, we notice the

following pleadings.  The respondents (plaintiffs)

are Hindus governed by Mitakshara School of Law as

administered by Benaras School.  Tikaram’s father

died  when  Tikaram  was  a  minor.   During  the

minority of Tikaram, the property was managed by

his mother.  On becoming major, Tikaram fell into

bad and immoral habits and grew into a drunkard.

3  (2010) 10 SCC 141

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He was also addicted to other vices.  He indulged

in wasteful habits and therefore sold his joint

family ancestral property for immoral purposes and

in a manner prejudicial to the interest of the

joint family.  On the intervention of relations, a

partition  was  entered  into  on  11.01.1957,  which

was duly registered.

14. At  the  time  of  partition,  plaintiff  No.2

though begotten was born afterwards on 02.06.1957

and as such he could not and was not made a party

to the above partition.  Plaintiff No. 3 was born

on 26.08.1959 and therefore he had interest in the

suit  property.   At  the  time  of  partition,  in

Khasra  No.  189  an  area  of  8.22  acres  was  not

included in the share of either deceased Tikaram

or plaintiff No.1 but was kept joint thereafter.

We may notice the following:

“(g) That  in  or  about  the  month  of September,  1958,  plaintiffs  knew  that Tikaram wanted to sale their lands and hence  they  published  a  general prohibitory  notice  in  the  issue  dated 14th September, 1958 of the Hindu Daily “NAVBHARAT”  which  has  wide  circulation at  Gondia  and  the  surrounding  area warning public in general not to accept any  transfer  of  land  from  deceased Tikaram.   That  subsequently  the

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plaintiffs  learnt  that  the  defendants intended  to  enter  into  a  contract  of sale with deceased Tikaram in respect of the suit land and hence they served the defendants with a written notice dated 4.1.1959  asking  them  to  desist  from purchasing land mentioned in para 1(e) above.

3.That,  however,  despite  warning  and notices  the  defendants  purchased  a portion of Kh.No. 189 admeasuring 3.20 acres, as particularly described in the plaintiff  map  by  letters  Pa,  Pha,  Ba, Bha,  Ma  and  in  red  colour,  for  the alleged consideration of Rs.8,000/- vide registered sale deed dated 21.1.1959.”

15. It is the further case that the property was

the  ancestral  joint  family  property  and  the

alienation  was  not  one  for  necessity  or  for

conferring benefits upon the estate or for payment

of antecedent debt.  It is liable to be set aside.

Plaintiff Nos. 1 to 3 have interest in the land by

birth and plaintiff No. 4 (the widow of Tikaram)

had  a  share  with  them.   The  payment  of

consideration is fictitious and it never passed.

Being without consideration, the alienations were

not valid and not binding on the plaintiffs and

thus  liable  to  be  set  aside  for  this  reason.

Thereafter, there were certain further allegations

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with which we are not concerned.

16. The reliefs sought by the plaintiffs in the

plaint  were  to  declare  the  sale  deed  as  not

binding on the interest of plaintiff No. 4 and for

delivery  of  possession  to  her  or  in  the

alternative a decree for setting aside the sale

deed  dated  21.01.1959  and  for  delivery  of

possession to the plaintiff, enquiry as to mesne

profits and for mandatory injunction to demolish

certain constructions.

17. Let  us  now  look  at  the  pleadings  in  the

second suit viz. Civil Suit No. 34 of 1971.

18. Herein  also,  the  plaintiffs  and  the

defendants are the same.  It is stated inter alia

as follows:

The  Bhumidhari  land  Kh.  No.  189  area  8.22

acres  situated  in  village  Gondia  is  the

ancestral property of plaintiff Nos. 1, 2 and 3.

Plaintiff No. 4 is the mother of plaintiff Nos.

1  to  3.   The  plaintiffs  are  Hindu  and  are

governed  by  Mitakshara  Law  as  administered  by

Benaras  School.   The  same  allegations  were

raised about Tikaram having fallen into immoral

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habits and growing into an incorrigible drunkard

and  selling  joint  family  ancestral  lands  for

immoral purposes. It also referred to partition

dated  11.01.1957.  There  were  also  allegations

relating to Kh. No. 189 wherein 8.22 acres of

land was  not included  either in  the share  of

deceased Tikaram or plaintiff No.1 but was kept

joint.  It is relevant to extract para 3 of the

second plaint which is to the following effect:-

“That,  however,  despite  warning  and notices  the  defendants  purchased  a portion  of  Kh.  NO.  189  from  the deceased  father  of  the  plaintiffs admeasuring 3.20 acres vide sale deed dated 21.01.1959.  The plaintiffs have filed C.S. No. 131 of 1963 against the defendants for setting aside the said sale.  The suit having been dismissed by the trial court the plaintiffs have filed Civil Appeal No. 22/69 against the said judgment and decree which is now  pending  in  the  Court  of  the Assistant  Judge,  at  Bhandara  4(a). That  Tikaram  the  deceased  father  of the  plaintiffs  again  on  11.02.1959 sold an area of 4.82 acres out of suit Kh.  No.  189  to  the  plaintiffs  under the  same  circumstances  stated  above and as described in the plaintiff map by  letters  Ka,  Kha,  Ga,  Gha,  Cha, Chha, Ja, Ta, Tha, Da, Na and Pa and in  red  colour,  for  the  alleged consideration  of  Rs.4000/-  vide registered  sale  deed  dated  11.2.1959

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and the same is sought to be set aside in this suit.”  

19. It is further stated that the land is to be

treated as an ancestral joint family property and

the alienation being not one for necessity or for

conferring benefits upon the estate or for payment

of  antecedent  debt  and  it  is  liable  to  be  set

aside.

20. Having  referred  to  the  pleadings,  let  us

examine what the High Court has held. The High

Court holds that all successive claims, arising

under  the  same  obligation,  shall  be  deemed  to

constitute one cause of action. It further finds

that  the  crux  of  the  matter  is,  there  are  two

alienations  of  separate  areas  of  the  land  on

different dates, and although they are in favour

of the same parties, it would give rise to more

than one cause of action. It was further found

that by restricting to first suit to the first

alienation, it could not be found that plaintiff

has split-up the claims or split-up the remedies.

The execution of the second sale deed in favour of

the  same  party  gives  rise  to  distinctive  and

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separate cause of action. The High Court further

proceeds to refer to the illustrations in Order II

Rule 2 CPC, which reads as follows:

“A lets a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years  1905,  1906  and  1907  is  due  and unpaid.  A  sues  B in 1908 only for the rent  due  for  1906.  A  shall  not afterwards sue  B  for the rent due for 1905 or 1907”.

21. Thereafter, the High Court proceeds to take a

case where A owns two houses and he let them to B.

A suit is filed in respect of arrears of rent in

respect of one house, though arrears were there in

respect of the other house also. The High Court

takes  the  view  that  it  is  the  choice  of  the

plaintiff either to unite or not to unite both the

causes of action and the second suit would not be

barred.

22. In the case of Mohammad Khalil Khan v. Mehbub

Ali Mian  4, the earlier suit related to the property

at Oudh. The parties belonged to the Sunni sect

and  the  properties  belonged  to  one  Rani

Barkatunnissa who owned properties at Shahjahanpur

4 AIR (36) 1949 Privy Council 78

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and  Oudh.  The  first  suit  did  not  include  the

property at Shahjahanpur. The Court proceeded to

uphold the views taken by the Courts in India and

maintained  the  finding  that  second  suit,  in

relation  to  the  property  at  Shahjahanpur,  was

barred by virtue of Order II Rule 2. It would be

profitable to refer to paragraphs 45 and 46 as

they throw light upon what constitutes cause of

action:

“45.  Shortly  stated  O.2,  R.2,  Civil P.C., enacts that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit  in  respect  of  the  portion  so omitted.  As  pointed  out  in  Moonshee Buzloor  Ruheem  v.  Shumsunnissa  Begum, (1867) 11 M.I.A. 551.

The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit….

The object of the rule is clearly to avoid  splitting  up  of  claims  and  to prevent multiplicity of suits”.

46.  “every  fact  which  it  would  be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not  comprise  every  piece  of  evidence

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which is necessary to prove each fact, but every fact which is necessary to be proved.”

I agree with the definition given by the  Master  of  Rolls  of  a  cause  of action, and that it includes every fact which it would be necessary to prove, if traversed,  in  order  to  enable  a plaintiff to maintain his action.

Now  the  cause  of  action  has  no relation whatever to the defence which may be set up by the defendant, nor does it  depend  upon  the  character  of  the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of action, or, in other words, to the  media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.”

23. The Privy Council proceeded to summarize the

principles  in  paragraph  61,  which  reads  as

follows:  

“61. The principles laid down in the cases  thus  far  discussed  may  be  thus summarized:

(1) The correct test in cases falling under O.2 R.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.

(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.  

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(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  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.”

24. Still further, in paragraph 63, the Court has

proceeded to conclude as follows:

“63. The plaintiffs’ cause of action to  recover  the  properties  consists  of those facts which would entitle them to establish their title to the properties. These facts are the same with respect to both properties, these being, that Rani Barkatunnissa  was  the  owner  of  the properties;  that  she  died  on  13th

February, 1927, that she was a Sunni by faith and that they are her heirs under the Muhammadan law.

Having  regard  to  the  conduct  of  the parties  their  Lordships  take  the  view that  the  course  of  dealing  by  the parties  in  respect  of  both  properties was  the  same  and  the  denial  of  the plaintiffs’ title to the Oudh property and the possession of the Shahjahanpur property by the defendants obtained as a result of that denial formed part of the same transaction. On this question, the

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learned Judges of the High court have expressed their opinion in two places in their judgment as follows:

“In the case before us the trespass on title or slander of title in the case so far as the Oudh suit was concerned was not  distinct  and  different  either  in point of time or in point of character from the trespass on possession in the case of the Shahjahanpur property…”

Again, it is stated as follows:

“Here in the present case we find that the  two  trespasses,  one  on  the Shahjahanpur property and the other on the  Oudh  property  were  similar  in character and formed part of the same transaction  and  the  evidence  to  prove the facts which it was necessary for the plaintiffs to prove… was the same and the bundle of essential facts was also the same.”

25. At this juncture, we may advert to Order II Rule 2,

which reads as follows:

“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

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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.”

26. Order II Rule 2(1) provides that a plaintiff

is to include the whole of the claim, which he is

entitled  to  make,  in  respect  of  the  cause  of

action. However, it is open to him to relinquish

any portion of the claim. Order II Rule 2 provides

for the consequences of relinquishment of a part

of a claim and also the consequences of omitting a

part of the claim. It declares that if a plaintiff

omits  to  sue  or  relinquishes  intentionally  any

portion  of  his  claim,  he  shall  be  barred  from

suing on that portion so omitted or relinquished.

Order II Rule 2(3), however, deals with the effect

of omission to sue for all or any of the reliefs

in  respect  of  the  same  cause  of  action.  The

consequences of such omission will be to preclude

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plaintiff from suing for any relief which is so

omitted.  The  only  exception  is  when  he  obtains

leave of the Court. In a recent judgment of this

Court, the distinction between Order II Rule 2(1)

and Order II Rule 2(3) has been succinctly brought

out  in  Virgo  Industries  (Eng.)  (P)  Ltd  . v.

Venturetech Solutions (P) Ltd.  5,. This Court, inter

alia, has held as follows:

“Order  2  Rule  1  CPC  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 2 Rule  2  CPC  contemplates  a  situation where  a  plaintiff  omits  to  sue  or intentionally  relinquishes  any  portion of  the  claim  which  he  is  entitled  to make. If the plaintiff so acts, Order 2 Rule 2 makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished.  Leave  of  the  Court  is contemplated  by  Order  2  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  clear  from  a

5 (2013) 1 SCC 625

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conjoint  reading  of  the  provisions  of Order  2  Rules  2(2)  and  (3)that  the aforesaid two sub-rules of Order 2 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 claim the particular relief he had obtained leave of the court in the first suit. 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 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.”

27. Thus,  in  respect  of  omission  to  include  a

part of the claim or relinquishing a part of the

claim flowing from a cause of action, the result

is  that  the  plaintiff  is  totally  barred  from

instituting a suit later in respect of the claim

so omitted or relinquished. However, if different

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reliefs could be sought for in one suit arising

out of a cause of action, if leave is obtained

from  the  Court,  then  a  second  suit,  for  a

different relief than one claimed in the earlier

suit,  can  be  prayed  for.  There  are  three

expressions which are found in Order II Rule 2.

Firstly, there is reference to the word "cause of

action", secondly the word "claim is alluded to"

and finally reference is made to "relief".

28. The  defence,  which  is  set  up  by  the

defendants, would be irrelevant to determine what

cause  of  action  means.  The  reliefs,  which  are

sought  by  the  plaintiffs,  will  not  be

determinative  of  what  constitutes  cause  of

action.  Cause  of  action,  as  explained  by  the

Privy  Council  in  Mohammad  Khalil  Khan case

(supra),  means  the  Media  through  which  the

plaintiff seeks to persuade the Court to grant

him relief. It could, therefore, be said to be

the factual and legal basis or premise upon which

the Court is invited by the plaintiff to decide

the case in his favour. It is also clear that the

20

cause  of  action,  in  both  the  suits,  must  be

identical. In order that it be identical, what

matters, is the substance of the matter.

29. In Coffee Board case (supra), the respondent

purchased  coffee  at  the  export  auctions  and

exported them to certain countries. He filed two

suits. The Coffee Board had provided for stamps

system for exporting of coffee. Complaint of the

plaintiff  was  that  the  defendants  failed  to

supply  the  stamps  but  there  was  delay  and  it

resulted in losses. This is what the Court held:

“12. The courts in order to determine whether a suit is barred by Order 2 Rule 2  must  examine  the  cause  of  action pleaded by the plaintiff in his plaints filed  in  the  relevant  suits  (see  S. Nazeer Ahmed v. State Bank of Mysore; 2007  (11)|  SCC  75).  Considering  the technicality of the plea of Order 2 Rule 2, both the plaints must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the plaintiff to prove if  traversed.  Therefore,  after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief  claimed  in  the  subsequent  suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 Rule 2.

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xxx        xxx                   xxx

16. In the plaint in OS No. 3150 of 1985 being the earlier suit, it has been claimed  by  the  respondent  being  the plaintiff  therein  that  the  appellant being  the  defendants  failed  to  supply ICO stamps for 268.08 tonnes of coffee purchased by him for export between 11- 8-1982  and  8-9-1982,  in  spite  of  its assurances  leading  to  delay  in  the shipment  of  the  coffee  resulting  in losses to the plaintiff. On the basis of the same, the respondent claimed for the losses  suffered  by  him  along  with damages. The respondent further averred that the cause of action for the suit arose  on  various  dates  when  the respondent  purchased  coffee  from  the appellant in the auctions held by them on  the  assurance  that  the  ICO  stamps will  be  supplied  by  the  appellant  to them.

17. The cause of action in the above suit  is  the  failure  of  ICO  to  supply stamps to the respondent in spite of its assurances. The respondent to ensure the success of his claim, was required to prove that on account of the omission of the appellant i.e failure to provide ICO stamps for the coffee purchased by them, the respondent suffered losses.”

30. The Court went on further hold that plaintiff

could only succeed only by proving failure by the

appellant  to  provide  stamps.  The  grounds  of

difference in the suit were found to be as regards

22

the amount of coffee and the date when the same

was purchased.

31. The  respondents  sought  support  from  the

judgment in  Alka Gupta v.  Narender Kumar Gupta  6.

The appellants and the respondents entered into a

partnership to run an institute at place "P" in

New Delhi. Thereafter, an agreement was entered

into  to  sell  the  undivided  half  share.  The

respondents  paid  only  part  of  the  sale

consideration  which  led  to  the  suit  by  the

appellant  for  the  balance  amount.  The  suit  was

decreed.  Thereafter,  the  appellant  filed

subsequent suit for rendition of accounts for the

period from 05.04.2000, which was date on which

the partnership deed was executed till 31.07.2004.

According to the appellant, the partnership was

one  at  will  and  was  dissolved.  This  Court

overturned the view of the High Court that the

suit was barred by Order II Rule 2 and by the

principles of constructive res judicata. The Court

followed  the  judgment  of  this  Court  in  Gurbux

6 (2010) 10 SCC 141

23

Singh v.  Bhooralal  7,  and  inter  alia,  held  as

follows:

“A Division Bench upheld that decision on the grounds that the suit was barred by  Order  2  Rule  2  CPC  and  that  the appellant  had  settled  all  her  claims with  the  respondent  under  the  bayana agreement dated 29.06.2004. The present appeal was then filed by special leave.

The cause of action for the first suit was  non-payment  of  price  under  the agreement  of  sale  dated  29.06.2004, whereas  the  cause  of  action  for  the second suit was non-settling of accounts of  a  dissolved  partnership  constituted under the deed dated 05.04.2000. Merely because the agreement of sale related to an  immovable  property  at  R  and  the business run therein under the name of “Takshila Institute” and the second suit referred to a partnership in regard to business run at  P also under the same name of Takshila Institute, it could not be assumed that the two suits related to the  same  cause  of  action  so  as  to attract Order 2 Rule 2 CPC.”

32. As regards the plea of res judicata, here is

what the Court held as follows:-

“Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be  clearly  established,  more particularly where the bar sought is on the basis of constructive res judicata.

7 AIR 1964 SC 1810

24

The  plaintiff  who  is  sought  to  be prevented by the bar of constructive res judicata  should  have  notice  about  the plea  and  have  an  opportunity  to  put forth his contentions against the same. In the present case, there was no plea of  constructive  res  judicata,  nor  had the  appellant-plaintiff  an  opportunity to meet the case based on such plea. Res judicata  means  “a  thing  adjudicated”, that  is,  an  issue  that  is  finally settled  by  judicial  decision.  The principle  of  constructive  res  judicata emerges from Explanation IV to Section 11 CPC when read with Explanation III thereof  both  of  which  explain  the concept  of  “matter  directly  and substantially  in  issue”.  In  view thereof, even though a particular ground of defence or attack was not actually taken  in  the  earlier  suit,  if  it  was capable  of  being  taken  in  the  second suit  in  view  of  the  principle  of constructive res judicata. Constructive res  judicata  deals  with  grounds  of attack and defence which ought to have been  raised,  but  not  raised,  whereas Order 2 Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed.”

33. In  Union of India v.  H.K. Dhruv  8, the Court

held, inter alia, as follows:

“4.  Having  heard  the  learned  Senior Counsel for the appellant as also the respondent appearing in person, we are satisfied  that  no  fault  can  be  found with the view taken by the High Court. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on

8 (2005) 10 SCC 218 25

which  the  subsequent  claim  is  founded should have arisen to the claimant when he sought for enforcement of the first claim  before  any  court.  On  the  facts found and as recorded in the judgment of the High Court and with which we find no reason  to  differ,  the  second  demand raised  by  the  respondent  was  not available to be made a a part of the claim raised in the first application. The bar enacted by Order 2 Rule 2 CPC is clearly not attracted.”

(Emphasis supplied)

34. In S. Nazeer Ahmed v. State Bank of Mysore  9,

the appellant/defendant borrowed some money from

the  plaintiff's  bank  by  hypothecating  and  by

mortgaging two items. The money suit filed by the

bank was decreed. The proceedings in execution was

unsuccessful as the bus, which was hypothecated,

could not be traced. The bank prayed to proceed

against the mortgaged property in execution. It

was resisted by the appellant by pointing out that

there was no decree on the mortgage and the bank

could  only  attach  the  properties  and  could  not

sell  it  straightaway.  The  said  objection  was

upheld. Thereupon, the bank instituted the second

suit for enforcement of the equitable mortgage.

This Court proceeded to take a view that the cause

9 (2007) 11 SCC 75

26

of action in the second suit was different. The

Court also further drew support from Order XXXIV

Rule 14 and proceeded to hold as follows:

“14. Applying the test so laid down, it is  not  possible  to  come  to  the conclusion that the suit to enforce the equitable  mortgage  is  hit  by  Order  2 Rule  2  of  the  Code  in  view  of  the earlier  suit  for  recovery  of  the  mid term loan, especially in the context of Order 34 Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction.  Even  otherwise,  Order  34 Rule 14 read with Rule 15 removes the bar  if  any  that  may  be  attracted  by virtue of Order 2 Rule 2 of the Code. The decision of the Rangoon High Court in  Pyu  Municipality  Vs.  U.  Tun  Nyein (AIR  1933  Rangoon  158)  relied  on  by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was  barred  by  Order  2  Rule  2  of  the Code, as the said decision itself has pointed out the effect of Order 34 Rule 14  and  in  the  light  of  what  we  have stated above.”

35. Let  us  first  consider  the  argument  of  the

learned  counsel  for  the  respondent  that  under

Article 109 of the Limitation Act, the period of

limitation commences from the date of possession

obtained by alienee, and therefore, the cause of

action for the second suit, in respect of the sale

27

deed dated 11.02.1959, would be different from the

earlier suit, as in respect of the sale deed of an

earlier date, it would have a different period of

limitation.  We  are  of  the  view  that,  that  the

period  of  limitation  under  Article  109  is

different from the period of limitation in respect

of the first sale deed, cannot operate so as to

exclude  the  bar  under  Order  II  Rule  2.  The

principle underlying Order II Rule 2 is that no

man  can  be  vexed  twice  over  the  same  cause  of

action. All claims and reliefs, which arise from a

cause  of  action,  must  be  comprehended  in  one

single  suit.  Order  II  Rule  2  provides  for  the

principle  of  repose.  If  this  be  the  underlying

object of Order II Rule 2, the fact that at the

time when the first suit was filed even though the

second  alienation  could  be  challenged  and  it

stemmed from one single cause of action and not

two different causes of action, the mere fact that

a  different  period  of  limitation  is  provided,

cannot stand in the way of the bar under Order II

Rule 2.

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36. Now, let us consider the further argument of

the learned counsel for the respondent based on

Order VII Rule 1 CPC. Order VII Rule 1 provides

for the particulars to be contained in a plaint.

It,  inter  alia,  provides  that  the  facts

constituting  the  cause  of  action  and  when  it

arose, be pleaded. Apparently, the argument of the

respondents is having regard to Article 109 of the

Limitation Act, the cause of action as provided in

Article 109, would commence from the date of the

deed  being  11.02.1959,  and  therefore,  it  has  a

different period of limitation as already noted.

It indicates that cause of action, raised in the

second  suit,  is  not  identical  with  a  cause  of

action in the first suit. We are of the view that

this argument proceeds on a misapprehension as to

what  constitutes  the  cause  of  action.  Cause  of

action has been explained in many decisions. It is

the bundle of facts, which if traversed, must be

proved.  However,  as  laid  down  by  the  Privy

Council, it would be understood also to mean the

media through which Court’s intervention is sought

by the plaintiff.

29

37. What  is  the  legal  basis/factual  matrix

premised on which the plaintiff seeks a decree?  

38. In this case, we have noticed the pleadings.

The case of the plaintiffs appears to be that the

property is ancestral property. Their late father

Tikaram was given to wasteful ways and addicted to

drink  and  otherwise.  He  was  given  to  selling

properties.  His  well-wishers  intervened  and

partition ensued. However, 8.22 acres falling in

Kh.No.189 was kept out of the partition deed. He

decided to sell 8.22 acres without there being any

legal  necessity  and  without  any  benefit  to  the

joint family. The first part of the transaction,

which consisted of two parts, pertained to sale

deed  dated  21.01.1959  and  that  was  the  subject

matter of the first suit. At the time of filing of

the said first suit, late predecessor-in-interest

of the plaintiff, had also executed another sale

deed which constituted the remaining portion which

consisted of the 8.22 acres as already noticed.

The suits contained virtually identical averments

in regard to both the transactions. The first suit

30

was filed in 1963 and the second suit filed in the

year 1971.  

39. We are of the view that in such circumstances,

this  is  a  case  where  the  plaintiff  ought  to  have

included  relief  in  the  form  of  setting  aside  the

second sale deed also. This is not a case where the

second  sale  deed  had  not  been  executed  when  the

plaintiff instituted the first suit. We are not, for a

moment, declaring the effect of the sale deed having

been executed subsequently to the institution of the

suit as we do not have to pronounce on the effect of

such a sale. We are only emphasizing that it was open

to the respondent/plaintiff to seek relief in respect

of the second sale executed by their predecessor-in-

interest and what is more important in favour of the

same  parties  (defendants)  who  are  the  appellants

before us.

40. The High Court has proceeded to reason based

on Order II Rule 3. It is open to the plaintiff to

combine causes of action. Order II Rule 3 reads as

follows:

31

“3. Joinder of causes of action

(1)  Save  as  otherwise  provided,  a plaintiff  may  unite  in  the  same  suit several  causes  of  action  against  the same defendant, or the same defendants jointly;  and  any  plaintiffs  having causes  of  action  in  which  they  are jointly  interested  against  the  same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value  of  the  aggregate  subject-matters at the date of instituting the suit.”

41. It is undoubtedly true that the law does not

compel a litigant to combine one or more causes of

action in a suit. It is open to a plaintiff, if he

so wishes, however to combine more than one cause

of  action  against  same  parties  in  one  suit.

However, it is undoubtedly true that the embargo

in Order II Rule 2 will arise only if the claim,

which is omitted or relinquished and the reliefs

which are omitted and not claimed, arise from one

cause of action. If there is more than one cause

of action, Order II Rule 2 will not apply. It is

undoubtedly  also  true  that  Order  II  Rule  2

manifests a technical rule as it has the effect of

32

posing  an  obstacle  in  the  path  of  a  litigant

ventilating his grievance in the Courts. But as

already  noted,  there  is  an  equally  important

principle that no person shall be vexed twice on

the same cause of action.

42. That  on  the  same  cause  of  action,  the

plaintiffs having omitted to sue in respect of the

sale deed in question, we would think that bar

under Order II Rule 2 would apply.  In this view

of  the  matter  we  do  not  think  it  necessary  to

pronounce on the question relating to constructive

res judicata.  In the light of this, we allow the

appeal  and  set  aside  the  judgment  of  the  High

Court. Parties to bear their respective costs.

…............J. [ASHOK BHUSHAN]

..............J.                                      [K.M. JOSEPH] NEW DELHI; MAY 10, 2019.

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