1  

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 21.02.1959 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 Limited1  

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

Agencies, Salem2.  

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 Gupta3.  

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 21.01.1957 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 Mian4, 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  

learned Judges of the High court have

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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  

relinquishes, any portion of his claim,

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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 precluded  

plaintiff from suing for any relief which is so

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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  

conjoint reading of the provisions of  

                                                 5 (2013) 1 SCC 625

19  

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

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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

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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 Gupta6.  

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

24  

Singh v. Bhooralal7, 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  

                                                 7 AIR 1964 SC 1810

25  

the basis of constructive res judicata.  

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. Dhruv8, 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  

                                                 8 (2005) 10 SCC 218

26  

bar enacted by Order 2 Rule 2 CPC, it is  

necessary that the cause of action on  

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 Mysore9,  

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  

                                                 9 (2007) 11 SCC 75

27  

suit for enforcement of the equitable mortgage.  

This Court proceeded to take a view that the cause  

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

28  

obtained by alienee, and therefore, the cause of  

action for the second suit, in respect of the sale  

deed dated 21.02.1959, 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,

29  

cannot stand in the way of the bar under Order II  

Rule 2.  

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

30  

media through which Court’s intervention is sought  

by the plaintiff.  

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

31  

in regard to both the transactions. The first suit  

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:

32  

“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

33  

manifests a technical rule as it has the effect of  

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.