Project report on

FRAME OF A SUIT

SUBMITTED TO:- SUBMITTED BY:-

Dr. Karan Jawandha Anupreet Singh

Professor B.Com LL.B (Hons.)

UILS 129/13

Panjab University Section- C

Chandigarh Semester- 7th

ACKNOWLEDGMENT

I extend my sincere gratitude to God who gave me strength to complete my project work well

in time. Then, I would like to thank my parents who got me admitted to this prestigious

institution and be a part of that.

Then, I would like to thank my subject teacher, Dr. Karan, for taking up this subject in such a

vivid and enthusiastic way and for taking up the topics in the class in a very systematic and

detailed approach. So much as to the fact that when it came to the project work of same, the

idea was already preconceived in mind as to how to go about the topic.

I also like to thank the UILS Library and staff for providing the various reference books that

came as a great source of research.

Thank you.

Anupreet Singh

129/13
CONTENTS:

 CONCEPT OF FRAME OF A SUIT

 Order II Rule 1- Frame of a suit

 Order II Rule 2- Suit to include the whole claim

 Order II Rule 3- Joinder of causes of action

 Order II Rule 4- Only certain claims to be joined for recovery of immovable

property

 Order II Rule 5- Claims by or against executor, administrator or heir

 Order II Rule 6- Power of Court to order separate trials

 Order II Rule 7- Objections as to misjoinder

CONCEPT OF FRAME OF SUIT

Introduction

Every suit shall be framed with an objective that it would bring an end to the litigation. So the

suit shall include the whole of the claim and shall sue for all the reliefs. The Order II of CPC

also provides for the joinder of cause of action. Power has been given to the Court to order

separate trials if it appears to court that joinder will delay or embarrass the trial of the suit.

And all the objections as to the misjoinder shall be taken at the earliest possible opportunity.

Order II Rule 1.

Frame of suit.—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.

Rule 1 of Order II lays down the rule for framing of the suit. It provides that every suit as far

as practicable be so framed as to afford grounds for final decision upon the subjects in dispute

and to prevent further litigation concerning it. Thus, this rule signifies that the object of the

legislature appears to be that as far as possible all matters in dispute between the parties

relating to same transaction should be disposed of in the same suit. Where there is a Common

question of law and fact separate suits are neither necessary nor desirable. The plaintiff being

'dominus litis' that is master of the suit, is free to frame his suit on any basis he likes but he

must always bear in mind the consequences that will ensue in case the suit is not properly

framed. Rule 1 of Order II is intended to give effect to the maxim 'interest republicae ut sit

finis litium, that is it is in the interest of the State that there should be an end to litigation.
That is why provision is made in Rule 1 that every suit as far as practicable be framed so as to

afford ground for final decision and to prevent further litigation. Order II, Rule 1 merely

prescribes a general rule. This is more in the nature of a general policy statement than a

mandatory provision.

Order II 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 any portion of his claim in order to bring the suit within the jurisdiction of any

Court.

(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of

the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in

respect of the same cause of action may sue for all or any of such reliefs ; but if he omits,

except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for

any relief so omitted.

Explanations—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.

Illustration: A lets a house to B at a yearly of rent Rs. 1,200. The rent for the hole 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 for 1905 or 1907.
Order II, Rule 2 is mainly concerned with correct joinder of causes of action, adequate

inclusion of reliefs claimed and so forth rather than the joinder of parties. The rule is based on

the maxim "nemo duvet bis vexari pro una et eadem causa," that is no person should be vexed

twice over for the same cause. Thus, both the principle of res judicata and Rule 2 of Order II

are based on the rule of law that a man shall not be twice vexed for the same cause.

The object of the rule is clearly to avoid splitting of claims or reliefs and to prevent

multiplicity of suits. The rule is directed against two evils : (i) the splitting up of claims and

(ii) the splitting up of remedies. It does not bar pleas in defence. The underlying principle is

that a defendant may not be twice vexed for one and the same cause. Privy Council in Naba

Kumar v. Radhashyam1, put it that "the rule in question is intended to deal with the vice of

splitting a cause of action." Thus, the applicability of Order II, Rule 2 is dependent on there

being established one and the same cause of action in the two suits.

The statutory principle behind Order II, Rule 2, is that a defendant or defendants should not

be vexed time and again for the same cause by splitting the claim and the reliefs for being

indicated in successive litigations. Order II, Rule 2 interdicts the filing of different suits in

respect of multiple reliefs springing from the same cause of action. In the event of the cause

of action sprouting plurality of reliefs, the suit comprising of entirety of reliefs has to be filed

to save the bar under Rule 2. The provision seeks to set at naught the series of suit on the

same cause of action. And, therefore, the fundamental Postulate for the application of Order

II, Rule 2 is that there must be one and only cause of action before its several provisions can

apply. To put, it in other words, all that Order II, Rule 2 provides is that where there is one

and the same cause of action, the plaintiff cannot split up his cause of action and sue for one

part in one suit and for another part in another suit.' The real test for the applicability of Order

1
AIR 1931 PC 229.
II, Rule 2 in a particular situation was laid down by their Lordships of the Privy Council in

Mohd. Khalil Khan v. Mahbub Ali Mian2, the Court observed :

Whether the claim in new suit is in fact founded upon a cause of action distinct from that

which was the foundation for the former suit.

The Supreme Court of India applied above test in State of Maharashtra v. M/s. National

Construction Co. Bombay3, where first suit was filed to enforce Bank guarantee and second

suit to claim damages for breach of contract relating to which Bank guarantee was given, it

was held that relief sought in first suit was based on different cause of action from that upon

which relief in subsequent suit was founded. And, therefore subsequent suit was not hit by

Order II, Rule 2.

Order II, Rule 2 (1) lays down a general principle and requires that the plaintiff must include

the whole of the claim which he has against the defendant in respect of the same cause of

action. In other words, Order II, Rule 2 enjoins on the plaintiff to include whole of the claim

against defendant in respect of the same cause of action. Thus, for example if the plaintiff has

a claim of Rs. 26,000/- against the defendant, he must include Rs. 26,000/- in the suit against

the defendant. However, he may relinquish a portion of his claim in order to bring the suit

within the jurisdiction of any Court. As such in above example the plaintiff may relinquish

Rs. 1000/- of the claim so, as to bring the same within the jurisdiction of Civil Judge (junior

division) in the State of Uttar Pradesh.

Order II, Rule 2 (2) lays down that where the plaintiff does not include whole of the claim he

is visited with the penalty provided therein. The penalty is that if the plaintiff intentionally

2
AIR 1949 PC 78.
3
AIR 1996 SC 378.
omits to sue or intentionally relinquishes any portion of his claim, he shall not be allowed

subsequently to sue in respect of claim so omitted.

Order II, Rule 2 (3) lays down that where a person is entitled to more than one relief in

respect of all the same cause of action, he may sue for all or any of the reliefs; but if he omits,

except with the leave of the Court, to sue for all such reliefs, he will not be permitted

afterwards to sue for any relief so omitted. Thus, Order II, Rule 2 (3) requires that the cause

of action in the earlier suit must be the same on which the subsequent suit is based.

Therefore, there must be identity of cause of action in both the suits to attract the bar of Order

II, Rule 2 (3).

Conditions

To make the rule applicable the Supreme Court of India laid down three conditions in

Gurbux Singh v. Bhooralal4, they are:

(i) That the second suit was in respect of the same cause of action as that on which the

previous suit was based;

(ii) That in respect of that cause of action the plaintiff was entitled to more than one relief;

and

(iii} That being thus entitled to more than one relief the plaintiff without the leave of the

Court omitted to sue for the relief for which the second suit had been filed.

4
AIR 1964 SC 1810.
For eg:- (i). A mortgages three plots X, Y and Z to B. All the three form part of a single

mortgage. A files a suit for redemption of plots X and Y: A subsequently cannot file a

redemption suit in respect of Z.

(ii) A suit by a wife for maintenance against her husband in which the only relief claimed is

maintenance, bars a subsequent suit for declaration of a charge for such maintenance.

The Supreme Court of India held in Hari Shankar v. Ananth Nath5, that where the plaintiff

omits to sue, without leave the Court, in respect of all the reliefs for which he is entitled, he

shall not afterwards sue for the reliefs so omitted by him. Relinquishment need not always be

express, it may be implicit by conduct.

Where an earlier suit for injunction was dismissed on technical ground, the subsequent suit

for declaration of title and recovery of possession is not barred by res judicata because of the

question of status of the plaintiff as lessee was not decided in the earlier suit. The subsequent

suit is also not barred by Rule 2 (3) of Order II since the causes of action are different.

Similarly, where an earlier suit sought a decree for declaration of right and title of plaintiffs

to plaint schedule property and their possession, and title of plaintiffs was upheld but prayer

for injunction was rejected as possession was not found, subsequent suit claiming recovery of

possession, held not barred as cause of action in both suits not same. Order II, Rule 2 is not

applicable in this case. When a plea of bar is raised under O.II, R 2, the burden is on the

defendant. Production of plaint in earlier suit to show the cause of action of that suit is

mandatory.

5
AIR 1949 FC 106.
Leave of the Court

A Full Bench decision of the Allahabad High Court has held that where the plaintiff filed a

suit for mesne profits and had reserved his right to file a suit for ejectment subsequently at a

later stage with the permission of the Court and that Court had also permitted to do so, the

second suit relating to ejectment was not barred under Order II Rule 2(3) of C.P.C. Thus,

where the omission of one of the reliefs is made with the permission of the Court, a

subsequent suit for the relief so omitted on the basis of the same cause of action is not barred.

The leave of the Court may be express or implied. Leave can be granted at the time

discretionary, of the institution of the suit and the power to grant the leave is granted in

Permission has to be obtained in the earlier suit and cannot be subsequent suit .

Unless the defendant pleads the bar under order II, rule 2 and an issue is framed focusing the

parties on that bar to it examine or reject a suit on that ground.

Res iudicata relates to the plaintiff's duty to put forth attack in support of his claim whereas

Order Procedure requires the plaintiff to claim all relief s flowing from the same cause of

action in a single suit, two pleas are different and one will not include the other.

Order II Rule 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 cause 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.

Order II, Rule 3 deals with joinder of causes of action. But joinder of causes of action itself is

meaningless if parties are not involved with it. A joint reading of the provisions of Order I,

Rule 3 and Order II, Rule 3 indicate the question of the joinder of parties also involves the

joinder of the causes of action. The simple reason is that a person is made a party in a suit

because there is a cause of action against him and when causes of action are joined, the

parties are also joined

Order II, Rule 3 provides for the joinder of several causes of action and says that a plaintiff

may unite in the same suit several causes of action against the same defendant, or some

defendants jointly or several plaintiffs having causes of action in which they are jointly

interested against the same defendant or defendants jointly may unite them in one suit.

As already stated joinder of causes of action also involves the joinder of the parties, the

provisions of Order II, Rule3 has to be read subject to provisions of Rules 4 and 5 below as

also Order 1, Rule I and Order I Rule 3 dealing with joinder of plaintiffs and defendants

respectively. When the conditions laid down in the rule are satisfied the suit is maintainable

without regard to the question of convenience or inconvenience. What is permitted under this

rule is not only joinder of causes of action against the same defendant or same defendants but

also joinder of different causes of action against different defendants if the plaintiff is able to

bring his case within the purview of Order I Rule 3.

For the application of Order I, Rule 3 and Order II, Rule 3 there must be "common question

of law and fact" as also "the same act or transaction or same fl-le same series of acts or

transactions" in respect of which or out of which the alleged right to relief arises.
Order II Rule 4

Only certain claims to be joined for recovery of immovable property.—No cause of action

shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable

property, except

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part

thereof ;

(b) claims for damages for breach of any contract under which the property or any part

thereof is held ; and

(c) claims in which the relief sought is based on the same cause of action

Provided that nothing in this rule shall be deemed to prevent any party in a suit for

foreclosure or redemption from asking to be put into possession of the mortgaged property.

Order II, Rule 4 deals with claims to he joined in a suit for the recovery of immovable

property. In other words, this rule deals with what may be called as joinder of claims. It

declares that no claims other than thyse specified in Clauses (a), (b) and (c) of Rule 4 of

Order II shall be joined without the leave of the Court in a suit for the "recovery of

immovable property". The object appears to be not to allow joinder with a claim for the

recovery of immovable Property of claims wholly dissimilar in nature. However, if claims

which are dissimilar in nature are to be joined along with claim for the recovery of

immovable property, the leave of the Court has to be obtained.

In a suit for the 'recovery of immovable property' following three claims can be joined and

no other claim, except with the leave of the Court:

(i) claims for mesne profits or arrears of rent in respect of the property claimed;

(ii) claims for damages for breach of any contract under which the property is held; and

(iii) claims in which the relief sought is based on the same cause of action.

Thus, A agrees to sell his house along with equipments (furniture etc.) to B. On appointed

time A fails to deliver the possession of house along with equipments (furniture etc.) to B. B

files a suit against A for the recovery of the, possession of house. In that suit B can join the

following claims:

(1) claim for mesne profits : after the appointed day, that is the date for delivery of the house,

whatever profit A obtains, it belongs to B;

( ii ) claim for damages on account of breach of the contract; and

(iii) claim for recovery of equipments (furniture etc.).

No other claim except the above three may be joined in the suit. However, with the leave of

the Court other claims may also be joined.

In a suit for establishing title to an immovable property, in which no claim is made for

possession, is not a suit for 'the recovery of immovable property" within the meaning of this

rule so as to require the permission of the Court for its joinder with another cause of action.

Similarly, an action to restrain a trespass on immovable property is not a suit "for the

recovery of immovable property".

Order II Rule 5

Claims by or against executor, administrator or heir.—No claim by or against an executor,

administrator or heir, as such, shall be joined with claims by or against him personally,

unless the last mentioned claims are alleged to arise with reference to the estate in respect of

which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are

such as he was entitled to or liable for, jointly with the deceased person whom he represents.

Order II, Rule 5 declares that no claim by or against an executor, administrator or heir as

such shall be joined with claims by or against him personally, except when :

(i) the claims by or against him in personal capacity are alleged to arise with reference to the

estate he represents; or

(ii) the claims are such that he was entitled to or liable for them jointly with the deceased

whom he represents.

The object of the rule is to prevent an executor or administrator from intermingling the assets,

of his testator with his own monies.

Thus for instance A is a trustee in a trust. For the conduct of the affairs of the trust he (A)

purchases station dry from M/s. Ram Lai & Sons worth Rs. 4000. Payment has not been

made for the stationary. A purchases stationary from the same, shop, i.e., M/s Ram Lal &

Sons, worth Rs. 1000 for his personal use. Payment has not been made for this stationary

also. If M/s. Ram Lal & Sons files a suit for the recovery of Rs. 4000/- being the prince for

stationary supplied to A as trustee, they cannot join in the same suit the claim of Rs. 1000/-

being price of stationary supplied to A for his personal use, that is his personal capacity.

Executor – A person or institution appointed by a testator to carry out the terms of their will.

The person appointed to administer the estate of a person who has died leaving a will which
nominates that person. Unless there is a valid objection, the judge will appoint the person

named in the will to be executor. The executor must insure that the person's desires expressed

in the will are carried out. Practical responsibilities include gathering up and protecting the

assets of the estate, obtaining information in regard to all beneficiaries named in the will and

any other potential heirs, collecting and arranging for payment of debts of the estate,

approving or disapproving creditor's claims, making sure estate taxes are calculated, forms

filed, and tax payments made, and in all ways assist the attorney for the estate.

Administrator – A person appointed by the court to manage and take charge of the assets and

liabilities of a decedent who has died without making a valid will.

When such a person is a male, he is called an administrator, while a woman is called an

administratrix. An administrator is appointed by the court where the testator had made an

incomplete will without naming any executors or had named incapable persons, or where the

executors named refuse to act. A public administrator is a public official designated by state

law to perform the duties of administration for persons who have died intestate.

An executor differs from an administrator in that he or she is named in the decedent's will to

manage the estate. If anexecutor dies while performing these duties, a court will appoint an

administrator to complete the distribution of the decedent's estate.

Heir –An individual who receives an interest in, or ownership of, land, tenements, or

hereditaments from an ancestor who has died intestate, through the laws of Descent and

Distribution. At Common Law, an heir was the individual appointed by law to succeed to the

estate of an ancestor who died without a will. It is commonly used today in reference to any

individual whosucceeds to property, either by will or law.

For example –

 A dies leaving a will of which B is the executor. By his will, A directs B to continue

his business. The executor purchases for the purposes of A’s business certain goods

from C in his own name. C may in such a case sue B for the price of goods and he

may claim the price against B personally or in the alternative against him as an

executor. The reason is that the personal claim against B arises with reference to the

estate of which he is the executor. However, if B purchased certain goods from C as

executor in the course of administration of A’s estate and other goods under a separate

contract altogether in his own name and expressly for his own purpose, C cannot join

both claims against B in one suit.

 The suit is against N, as executor of V deceased, for administration of the estate of V

and also for an account of a partnership which had been carried on by V and N. The

suit is not bad for misjoinder of causes of action, for O 2 r 5 allows a claim against an

executor, as such, to be joined with a claim against him personally which is alleged to

arise out of the estate in respect of which the executor is sued.

Order II Rule 6

Power of Court to order separate trials.—Where it appears to the Court that the joinder of

causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the

Court may order separate trials or make such other order as may be expedient in the

interests of justice.

Rule 6 has been substituted by Civil Procedure Code (Amendment) Act 1976 so as to

empower the Court to order separate trials where joinder of causes of action may cause
embarrassment, delay or inconvenience. This rule does not apply to the cases of misjoinder,

but to cases where several causes of actions have been joined according to rules properly in

one suit and the causes of action so joined cannot conveniently be tried together.

In Madanlal Kewalchand v. Radhakishan Laxminarayan6, This rule does not apply to

cases of misjoinder, but to cases where several causes of action have been properly joined in

one suit and the cases of action so joined cannot be conveniently tried together. In such a

case, the court cannot require the plaintiff to file separate plaints, but can only order separate

trials and for that purpose can require the plaintiff to amend his plaint in such a manner that

the allegations against the different sets of defendants may be set out separately in order that

issues may be separately framed for the purpose of separate trials.

Order II Rule7

Objections as to misjoinder.—All objctions on the ground of misjoinder of causes of action

shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at

or before such settlement unless the ground of objection has subsequently arisen, and any

such objection not so taken shall be deemed to have been waived.

Provisions of Order II, Rule 7 that is objection on the ground of misjoinder of causes of

action are analogous to that Order 1, Rule 13 dealing with objections on the ground of non-

joinder or misjoinder of parties. According to the provisions such objection need to be taken

at the earliest opportunity, and if not taken it shall be deemed to have been waived.

As per Rule 7 all objections on the grounds of misjoinder of causes of action shall be taken at

the earliest possible opportunity and in all cases where issues are framed at or before the

6
AIR 1950 NAG 101.
framing of the issues unless ground for such objection has subsequently arisen and any such

objection not so taken shall be deemed to have been waived, it has, therefore been held that

misjoinder of causes of action being not an inherent lack of jurisdiction, if the objection is not

raised at the earliest possible opportunity it stands waived. The plea cannot be raised after

remand, when the same has not been taken at the earliest opportunity. So any order of the

trial court after remand to remove the lacuna is bad.

BIBLIOGRAPHY

1. Mulla Sir Dinshah Fardunji, “The Code of Civil Procedure”, Lexis Nexis Butterwoths

Wadhwa, Nagpur, 18th Edition, 2011.

2. Takwani C.K., “Civil Procedure”, Eastern Book Company, Lucknow, 7th Edition,

2013.

3. Tripathi Dr. T.P., “The Code of Civil Procedure”, Allahabad Law Agency Publication,

7th Edition.