AM VI

FRAME OF SUIT:
SUIT TO INCLUDE WHOLE CLAIM –
RELINQUISHMENT & OMISSION

Ms. Megha Nagpal

Symbiosis Law School, NOIDA
 What will we cover?
■ Topic ‘5.1 continued’ (Video 6) for Asynchronous Mode
■ Order II, Rules 2(2), and (3) of the Code of Civil Procedure, 1908
■ Discussed through the following Case-laws:
– Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Co. AIR
1997 SC 1398
– Virgo Industries v. Venturetech Solutions (2013) 1 SCC 625
– Shankar Sitaram Sontakke and Ors v. Balkrishna Sitaramma AIR 1954 SC
352

■ Note: This video is connected to the previous one (Video 5) wherein Rules 1 and
2(1) were discussed.

Ms. Megha Nagpal, July 2020

 Suit to include the whole claim – Rule 2
■ Sub-rule 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
and portion of his claim in order to bring the suit within the jurisdiction of any
Court.
■ Sub-rule 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.
■ Sub-rule 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.
 Scheme of Order 2, Rule 2, Sub-rules 2 & 3
Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Co. AIR 1997 SC 1398
■ “A mere look at the said provisions shows that once the plaintiff comes to a court of law for getting any redress basing his
case on an existing cause of action he must include in his suit the whole claim pertaining to that cause of action. But if he
gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot
subsequently resurrect the said claim based on the same cause of action. So far as Sub-rule (3) of Rule 2 of Order 2, CPC is
concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred
by the same it must be, Town that the second suit is based on the same cause of action on which the earlier suit was based
and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs
available to it on the basis of that cause of action, the reliefs which it had failed to press in service in that suit cannot be
subsequently prayed for except with the leave of the Court.”

■ TM infringement – DUCK BACK and DACK BACK - de die in diem even after first suit ended

■ “As act of passing off is an act of deceit and tort every time when such tortious act or deceit is committed by the defendant
the plaintiff gets a fresh cause of action to come to the court by appropriate proceedings. Similarly infringement of a
registered trade mark would also be a continuing wrong so long as infringement continues. therefore, whether the earlier
infringement has continued or a new infringement has taken place cause of action for filing a fresh suit would obviously
arise in favour of the plaintiff who is aggrieved by such fresh infringements of trade mark or fresh passing off actions
alleged against the defendant. In cases of continuous causes of action or recurring causes of action bar of Order 2 Rule 2
Sub-rule (3) cannot be invoked. In this connection it is profitable to have a look at Section 22 of the Limitation Act, 1963.”

Ms. Megha Nagpal, July 2020

 Continued…
Virgo Industries v. Venturetech Solutions (2013) 1 SCC 625
■ Suit 1 – basing his claim on agreements to sell, sought 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
■ Suit 2 - seeking a decree against the Defendant for execution and registration of the sale deeds in
respect of the same properties and delivery of possession thereof to the Plaintiff
■ “Order II Rule 2 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 II Rule 2 of Code of Civil
Procedure 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 Code of
Civil Procedure 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 claim the particular relief he
had obtained leave of the Court in the first suit.”

Ms. Megha Nagpal, July 2020

 Continued…
■ “object behind enactment of Order II Rule 2 (2) and (3) - … 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.”
■ “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.”
■ Different from Sarasvathi v. Swarnalatha Madras HC 2015

Shankar Sitaram Sontakke and Ors v. Balkrishna Sitaramma AIR 1954 SC 352
■ Partition suit: compromise agreement as to division of various businesses amongst all 5 brothers; agreement also decided
the final date upto which the accounts of all businesses shall be settled between parties where after division of all
businesses would be complete – this date was prior to date of final decree
■ Suit 2 by plaintiff seeking accounts beyond the agreed cut off date in one business: held to be barred by sub-rule 3 of Rule
2, Order II
■ “It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then
existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts upto
March 31, 1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full
consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the
trial Court - a finding which was not interfered with by the High Court - it follows that a matter once concluded between the
parties who were dealing with each other at arms length cannot now be reopened.”
■ “ The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly, if not explicitly, relinquished his claim
to the account for the subsequent period. Sub-rule 3 (of Rule 2) clearly lays down that if a person omits, except with the
leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted.”
■ “The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint
family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having
abandoned his claim to account in respect of the motor business subsequent to March 31, 1946. His subsequent suit to
enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear,
therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, rule 2(3), of the Civil
Procedure Code.”

Ms. Megha Nagpal, July 2020

 Thank you for listening!
■ Mandatory Reading:
1. Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Co. AIR 1997 SC
1398

■ The PPT presentation is available on your Microsoft Team of CPC I.

■ Further reading:
1. Commentary on Order II (same for Videos 5, 6 and 7) – posted in Class Notebook
2. Virgo Industries v. Venturetech Solutions (2013) 1 SCC 625
3. Shankar Sitaram Sontakke and Ors v. Balkrishna Sitaramma AIR 1954 SC 352

■ Do read the mandatory reading & update your Reflective Lesson Log as homework.

■ If you have any doubts, you can email to me or ask during the last 20 minutes of the scheduled
synchronous lecture.

Ms. Megha Nagpal Until the next session..!

Symbiosis Law School, NOIDA