AM V

FRAME OF SUIT: SUIT TO INCLUDE

WHOLE CLAIM

Ms. Megha Nagpal

Symbiosis Law School, NOIDA
 What will we cover?
■ Topic ‘5.1’ (Video 5) for Asynchronous Mode
■ Order II, Rules 1, 2(1), 4 of the Code of Civil Procedure, 1908
■ Discussed through the following Case-laws:
– Inacio Martins v. Narayan Hari Naik AIR 1993 SC 1756
– Gurbux Singh v. Bhooralal AIR 1964 SC 1810
■ Note: This video is connected to the next one (Video 6) wherein
relinquishment and omission under sub-rules 2 and 3 of Rule 2, Order
2 are specifically dealt with through case-laws.

Ms. Megha Nagpal, July 2020

 Object
■ Rule 1, Order II: informs of the object and reasoning of the mandate of including the entire claim within ONE
suit itself
– “Every suit shall as far as practicable be framed so as to afford ground for final decision upon the
subjects in dispute and to prevent further litigation concerning them.”
– Principle: Defendant should not be vexed twice for the same cause of action (Inacio Martins SC’93)
■ The rule in question is intended to deal with the vice of splitting a cause of action, It provides that a suit must
include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on
which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause
of action would entitle him, he cannot claim it in, a subsequent suit. The object of this salutary rule is
doubtless to prevent multiplicity of suits. - Naba Kumar Hazra and Anr v. Radhashyam Mahish AIR 1931 PC
229
■ Illustrations (claim v. relief)
■ Claims to be within limitation
■ Rule 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 and portion of his claim in
order to bring the suit within the jurisdiction of any Court.

Ms. Megha Nagpal, July 2020

 How to decipher if causes of action are distinct?
■ Inacio Martins v. Narayan Hari Naik AIR 1993 SC 1756
– Suit 1 - for a declaration and an injunction to restrain the defendants from
dispossessing plaintiff from the property – dismissed since plaintiff lost possession
during pendency of the suit & prayer for mere declaration simpliciter under SRA in
absence of consequent relief of possession, could not be entertained
– Suit 2 - for restoration of possession on the ground that he was the lawful tenant of
the said property and since he had not been dispossessed in accordance with law
the defendants who were mere trespassers were liable to be evicted.
– “It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a
defendant or defendants should not be twice vexed for the same cause by splitting
the claim and the reliefs.”
– “To preclude the plaintiff from so doing it is provided that if he omits any part of the
claim or fails to claim a remedy available to him in respect of that cause of action
he will thereafter be precluded from so doing in any subsequent litigation that he
may commence if he has not obtained the prior permission of the court. But the
Rule does not preclude a second suit based on a distinct cause of action.”

Ms. Megha Nagpal, July 2020

 ■ Held: “… the cause of action for the former suit was based on an apprehension that the
defendants were likely to forcibly dispossess the plaintiff. The cause of action for that
suit was not on the premise that he had in fact been illegally and forcibly dispossessed
and needed the court's assistance to be restored to possession. Therefore, the
subsequent suit was based on a distinct cause of action not found in the former suit. …
It may be that the subject matter of the suit was the very same property but the cause of
action was distinct and so also the relief claimed in the subsequent suit was not
identical to the relief claimed in the previous suit.”
■ Naba Kumar Hazra and Anr v. Radhashyam Mahish AIR 1931 PC 229
– In a civil suit based on purchase of a mortgage decree, the plaintiff sought for
declaratory relief only; and in the appeal asked for conveyance of properties along
with ‘necessary accounts’ – conveyance was granted by HC. The claim for accounts
was abandoned as not pressed.
– Second suit was filed for accounting of and recovery of rents and profits earned by
the defendants after the purchase of the properties but before its conveyance.
– Held: once a claim, which could have been asked in the previous suit, is
abandoned, the second suit is barred by view of Order 2, Rule 2 of CPC.

Ms. Megha Nagpal, July 2020

 How to prove the bar of Order 2, Rule 2?
■ Gurbux Singh v. Bhooralal AIR 1964 SC 1810
– “.. the plea [of Order 2, Rule 2] is a technical bar it has to be established satisfactorily
and cannot be presumed merely on basis of inferential reasoning.”
– “… a plea of a bar under O. 2. r. 2 Civil Procedure Code can be established only if the
defendant files in evidence the pleadings in the previous suit and thereby proves to
the Court the identity of the cause of action in the two suits.”
– “…a plea under O. 2. r. 2, Civil Procedure Code cannot be made out except on proof of
the plaint in the previous suit the filing of which is said to create the bar. As the plea is
basically founded on the identity of the cause of action in the two suits the defence
which raises the bar has necessarily to establish the cause of action in the previous
suit. The cause of action would be the facts which the plaintiff had then alleged to
support the right to the relief that he claimed. Without placing before the Court the
plaint in which those facts were alleged, the defendant cannot invite the Court to
speculate or infer by a process of deduction what those facts might be with reference
to the reliefs which were then claimed.”
■ Relied on by SC (3-judge bench) in Jayantilal Chimanlal Patel v. Vadilal Purushottamdas
Patel (February 2017, Civil Appeal Nos. 3056-3057 of 2017)

Ms. Megha Nagpal, July 2020

 Thank you for listening!
■ Mandatory Readings:
1. Inacio Martins v. Narayan Hari Naik AIR 1993 SC 1756
2. Gurbux Singh v. Bhooralal AIR 1964 SC 1810
Note: In reading these judgements, the students are advised to confine their reading and
understanding of those portions of the judgements that relate to this topic.

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

■ Further reading: Commentary on Order II (same for Videos 5, 6 and 7) – posted in Class Notebook

■ 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.

Until the next session..!

Ms. Megha Nagpal
Symbiosis Law School, NOIDA