Framing of suit

ORDER II
QUESTION
“Every suit shall include the whole claim in respect of
the cause of action” comment with illustration
Order II deals with
Inclusion of the whole claim
Joinder of causes of action
Joinder of claims
Objection as to misjoinder of COA
ORDER II
Order II deals with framing of a suit. It lays down that a plaintiff shall
include the whole of his claim in the suit which he is entitled to make in
respect of a cause of action; if he does not do so, he cannot make his claim
later – S. Nazeer Ahmed v/s State Bank of Mysore (AIR 2007 SC 989)
‘Claim’ is the right which would be enforceable if decreed by court.

Thus:

Is to be
1 All claims
+ reliefs set out in
arising the same
CoA there from suit
I claim – non-payment of rent - 2016, 2017, 2018
I seek the remedy – recovery of arrears of rent and eviction of the tenant
Order II Rule 1
Every suit shall as far as practicable be framed so as to
afford ground for final decision upon the subject in
dispute and to prevent further litigation concerning
them.
Where there are common questions of law/facts, the plaintiff should
not file multiple suits.

Object
It is in the interest of the State that there should be an end to litigation.
All matters in dispute should be disposed off in the same suit.

In Sopn Sukhdev Sable v/s Asst. Charity Commissioner (AIR 2004
SC 1801)
The SC held that Order II Rule 1 of the Code contains provisions of
mandatory nature, the requirement is that the plaintiffs are duty
bound to claim the entire relief.
The suit has to be so framed as to afford ground for final decision upon
the subject matter in dispute and to prevent further litigation
concerning them.
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.
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.
Illustration
A lets a house to B at a yearly of rent 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.
CAUSE OF ACTION
It is not defined in the CPC. Every suit presupposes the existence of a CoA,
against the defendant.

CoA is
a bundle of essential facts
which are necessary for the plaintiff to prove
before he can succeed
It gives the plaintiff the right to relief, against the defendant.

It is the existence of a factual situation – that entitles – the plaintiff – to

obtain relief – from the court – against the defendant.

The CoA forms the ‘foundation of the suit’, it is the grounds set forth in the
plaint. It has nothing to do with the defence taken up by the defendant. It is
the act of the defendant that gives rise to the cause of complaint (subject
matter of grievance). It is the grounds on which he asks for relief.
Cooke v/s Gill
‘Cause of action’ means every fact, which it would be
necessary for the plaintiff to prove, if traversed (denied by
the defendant), in order to support his right to the judgment
of the court.

The plaintiff should include

every fact material to be proved
in order for him to succeed, and
every fact, which the defendant would have the right to
traverse (deny).
 CoA Claim Relie
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Why do you need COA?

In order to help the court determine whether the suit is filed within the period
of limitation.

What if CoA is absent?

If cause of action is not mentioned in the plaint, it will be rejected –
(Kuldeep Singh v/s Ganpat Lal)

Eg:
Where a suit is filed by a landlord against a tenant for non-payment of rent
and eviction, the period of default has to be mentioned. If this is not
mentioned then the plaint is liable to be rejected.
Order II Rule 2
All the reliefs that could be claimed in the suit should be prayed for. The
plaintiff has to include the whole of his claim which he is entitled to make
in respect of the cause of action. But a party may relinquish any portion of
his claim to bring the suit within the jurisdiction of the court.

After the suit is filed, he cannot by way of amendment reduce the value
of his claim by abandoning a part of his claim with a view to get his
plaint returned for being presented in another court of lower pecuniary
jurisdiction.

 What Order II Rule 2 bars?

It bars splitting of one CoA into many claims. This provision prevents
further litigation, by bringing all matters of dispute in one case for the same
CoA.
For eg: My claim is 6 lakh rupees, I cannot split it into 3 suits of 2 lakh
each.
Object
1. No defendant is to be sued or vexed twice in regard
to the same CoA.
Palaniappa Chettiar v/s Alagan Chettiar and ors
(AIR 1931 PC 228) (Partition suit)
It was laid down that the plaintiff cannot be permitted
to draw the defendant to the court twice for the same
cause by splitting up the claim and suing in the first
instance in respect of a part of the claim only.
2. It prevents the plaintiff from splitting of claims and remedies based on the
same cause of action.

Splitting of claim – omits to sue or intentionally relinquishes

Example 1 - ‘A’ lets his house to ‘B’ for a annual rent of 1,200/-. ‘B’ does
not pay rent for 1905, 1906 and 1907. Here ‘A’ has to file the case for all the
three years. He cannot file the case only for recovery of rent for 1906, and
then file the second case for 1905 and 1907. He is not allowed to split his
claim, and he has omitted or relinquished his right in this respect.
 
Example 2 - ‘A’ lends Rs. 2200/- to ‘B’. To bring the suit within jurisdiction
he files the suit for Rs. 2000/-. He then cannot sue for Rs. 200/- in a separate
suit.
 
Splitting of remedies (allowed with leave of the court)
1 claim – interference with the possession of property

2 remedies – Declaration of title

 Permanent injunction.
When is the second suit barred under Order
II rule 2?
Order II rule 2 bars the subsequent suit when certain
conditions are satisfied
1. SAME CAUSE OF ACTION:
When both the suits arise out of the same cause of action
(not from separate/distinct causes of action). The cause of
action should not merely be similar but it must be the same.
EXAMPLE:
‘A’ did work under a contract, and then some additional
work under the same contract – he should sue in one suit
only, as it is in respect of the same cause of action
(contract)
Procedure
Court cannot take suo moto cognizance. The plaint of
the previous suit has to be presented before the court.
Plaint of the previous suit is to be produced
Plaintiff of the subsequent suit should be given an
opportunity to demonstrate that the CoA in the subsequent
suit is different.
Both the plaints have to be read as a whole to identify the
CoA.
If the CoA are identical and the relief claimed in the
subsequent suit could have been pleaded in the former
suit, the subsequent suit shall be barred as per OII R2.
In Jayantilal Chiman lal Patel v/s Vadilal Purushotam Patel
Suit 1 – Land lord filed a injunction suit against the original tenant
restraining him from constructing any permanent structure on the
tenanted premises and further subletting/transferring the property.
(this suit was partially decreed, the tenant was injuncted from
subletting/transferring)
Suit 2 – eviction – as tenant built permanent structure without
consent of land lord.
Procedure- in suit 2 - the plaint of suit 1 has to be filed, issue is to
be framed, plaint is to be marked and proved – only then Order II
rule 2 can be invoked , not otherwise.
Held: Plaint not marked – thus OII R2 does not hit the second
case.
Phulpati devi v/s Parameswar Rai
Suit 1- partition of property (entire property was not
made the subject matter of the suit)
Suit 2 – partition of entire property.
Second suit was resisted, but the plaint of the
earlier suit was not produced.
Hence the plea of the bar under OIIR2 was not
maintainable.
NO BAR
It does not however bar a second suit based on a different
or distinct CoA.
Rathnavathi and anr v/s Kavita Ganshamdas
Suit 1- Permanent injunction – based on the threat given to the
plaintiff by the defendant to dispossess her from the suit house
on 2/1/2000.
Suit 2- Specific performance suit – based on the non-
performance of the agreement, despite legal notice dated
6/3/2000
Held: they are founded on 2 different causes of action. Hence
they can be filed simultaneously.
2. SAME PARTIES:
Both the suits are between the same parties.
In Coffee Board v/s Ramesh Exports Pvt Ltd. – both suits filed
regarding ICO stamps not being provided for the export by the
Coffee Board, which resulted in loss to Ramesh Enterprises.
I suit - Coffee Board v/s Ramesh Exports Pvt. Ltd. (subsidiary of
Ramesh Enterprises.)
II suit – Ramesh Enterprises v/s Coffee Board.
OS 3150/1985 – 268 tonnes - Aug 11, 1982 to Sep 8, 1982
OS 4763/1986 – 230 tonnes - July 25, 1982 to Aug 18, 1982.
Ramesh Enterprises/Ramesh exports could have claimed it in one
suit. The difference between the two were just 8 days. The relief
could have been claimed in the first suit itself.

NO BAR : if parties are not the same.

3. ENTITLED TO MORE THAN ONE RELIEF:
The rule is applicable only where the plaintiff is
entitled to more than one relief, in respect of the same
cause of action, which could have been pleaded in the
previous suit.

NO BAR:
(A) This rule is not applicable where the right to sue in
that respect did not exist.
Suit 1: in the capacity of an agreement holder –
injunction against owner & third party
Suit 2: in the capacity of a owner – declaration of title
against third party.
(B) Does not bar suit, where relief could not have been claimed earlier
UOI v/s Firm Baijnath Govind das
In the instant case ‘A’ gave away possession to ‘B’ on the basis of a sale
agreement. He filed a suit for recovery of Rs. 6,300/- (sale price). The suit
was dismissed with a finding that it was a sale agreement and not a sale
deed.

Then ‘A’ the owner filed a subsequent suit for recovery of possession on
the ground that he is the owner of the land.

Held, the second suit is not barred by OIIR2 as the previous suit was for
recovery of the sale price, the respondents could not have possibly claimed
the relief of possession on the basis of title in that suit, as title in that suit
had been pleaded by them to have been transferred to the defendants.
CoA in both suits are not the same hence subsequent suit is not said to be
barred by OIIR2.
4. PLAINTIFF OMITTED/RELINQUISHED TO
SUE:
Where the plaintiff omits or relinquishes a portion of
his claim, he cannot file a subsequent suit to claim the
omitted or relinquished portion.
Eg: Where the plaintiff files a suit for damages for
breach of contract and omits to claim a portion of the
damages for which he is entitled, a subsequent suit for
such portion is barred.
5. LEAVE OF THE COURT:
Where the plaintiff did not reserve his right to file the
subsequent suit i.e., he did not seek the leave of the
court, the subsequent suit will be barred.

E. Jayaram v/s Lakshmi

Suit for bare injunction by an agreement holder
(purchaser) without seeking the leave of the court to
reserve his right to seek specific performance under an
agreement of sale. Purchaser let out the property to a
third party. The purchaser cannot maintain a suit for
specific performance. Vendor can seek ejectment of
purchaser as well as third party in possession.
NO BAR: Leave of the court is obtained. It can be express or inferred
from the circumstances of the case. It can be obtained at any stage. It is
a discretionary right and the superior court will not interfere with this
discretion.

Rajiv bhai Mathurbhai Solanki v/s Bhijalbahai Devijibhai

Prajapati
Suit was filed for permanent injunction restraining defendants from
selling suit land to third parties, on the basis of apprehension
entertained by plaintiffs in view of efforts of the defendant to sell off
the suit land.

Defendants entered into an agreement for sale during the pendency of

suit despite the prohibitory order. Withdrawal of suit with permission of
court and filing of fresh suit for specific performance of the agreement
for sale of the suit land in favour of the plaintiff is not barred on the
ground that it was a different cause of action.
Defendant to prove three things
Gurbux Singh v/s Bhooralal
That the second suit was in respect of the same cause
of action, as that on which the previous suit was based.
That in respect of that CoA the plaintiff was entitled to
more than one relief.
That being thus entitled to more than one relief the
plaintiff, without leave obtained from the court,
omitted to sue for the relief for which the second suit
had been filed.
Joinder of claims – O2 R 4 and 5
‘Claim’ – refers to the right which would be enforceable if decreed by the
court.
Rules 4 and 5 deal with what may be called ‘joinder of claims’.

Rule 4 declares that no claims other than those specified in the three
exceptions shall be joined without the leave of the court, with a suit for
recovery of immovable property.

Object of the rule is to prevent the joinder of claims which are dissimilar to
the claim for recovery of immovable property.

If claims other than these 3 exceptions are to be joined then the leave of the
court has to be sought. The leave of the court can be obtained only if the
classes of claims can be conveniently disposed of in one suit.
Rule 4 lays down that only certain claims to be joined for recovery of
immovable property.
It lays down that in a suit for the recovery of immoveable property, a
plaintiff is not entitled without the leave of the court to join any claim – except:
a) claims for mesne profits (profits of an estate received by person in wrongful
possession and recoverable by the landlord) or arrears of rent in respect of the
property claimed or any part thereof.
b) claims for damages for breach of contract under which the property or any
other part thereof is held, and
c) claims in which the relief sought is based on the same CoA. (eg: recovery
+ injunction, recovery + declaration)
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.

Example of what cannot be claimed together - Redemption + Partition – not

allowed in one suit)
Order 2 Rule 5 - Claims by or against an 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 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.
Rule 5 deals with suits by or against 3 classes of
persons – namely: executors, administrators and heirs.
It provides that no claim by or against the aforesaid
persons in their representative capacity shall be joined
with claims by or against them personally in the same
suit except –
a) where the personal claims arise with reference to the
estate he represents, or
b) where he was entitled to or liable for, those claims
jointly with the deceased whom he represents.
OBJECT
To prevent a representative from intermingling the
assets of his testator with his own estates
1 Eg – A dies, and appoints B as his executor in his will.
A directs B to continue his business.
B purchases goods from C for A’s business but in his own
name. C can sue B for price of goods, either – personally
(or) as executor
BUT, if B buys goods as executor separately and for his
personal business under separate contract in his own
name. C cannot join both claims in one suit.
2 Eg: A and B (partners) jointly buys goods from C.
A dies – leaving behind a Will – appoints B is
executor
A and B – jointly are liable for price of goods
Therefore, C can sue B for the price in his personal
and representative capacity.

3 Eg: A and B (not partners). If A and B purchase

goods separately from C by way of separate contract.
C has to file 2 suits. B- personally (for B’s contract), B
– representative capacity (for A’s contract)
JOINDER OF CAUSES OF ACTION –
Order II Rule 3 and 6
When can causes of action be joined?
Rule 3 deals with ‘Joinder of CoA’. This rule enables joinder of several
CoA in one suit in certain circumstances.
But if the court feels that the joinder of CoA may embarrass or delay the
trial or is otherwise inconvenient the court may order separate trials - Rule
6

Rule 3 provides for the following 4 types of situations.

a) One plaintiff, one defendant, several CoA (1P+1D+2 or more CoA)
One plaintiff, one defendant – plaintiff is at liberty to unite in the same suit
several CoA.
For example : continuing interference with possession of immovable
property on various dates.
b) Joinder of plaintiffs and CoA (2 or more CoA + 2 or
more P+ 1 D = 1 suit)
2 or more plaintiffs and several CoA – the plaintiffs may
unite such CoA in one suit against the same defendant if
they all are jointly interested.
It must be read with O1R1.
2 conditions, for such joinder, that must be fulfilled are:
a) the CoA must have arisen from the same act or
transaction, series of acts or transaction and
b) common question of law or fact must have been
involved.
Eg: Several creditors + Several transactions (CoA) + 1
debtor trying to alienate the property = 1 suit
The suit will be bad for misjoinder of CoA if:
i) plaintiffs are not jointly interested in several CoA, that is
joined in one suit.
ii) right to relief does not arise from the same act or transaction,
iii) common questions of law or fact are not involved.

For Eg: A, C v/s B

2 plaintiffs – Separate contracts to sell cotton to B. B does not
pay. Only 2 separate suits can be filed, as there are no common
questions of facts/law, the relief or claim sought will be
different.
c) Joinder of defendants and CoA – (1P + 2 or more
defendants + 2 or more CoA = 1 suit)
1 plaintiff – 2 or more defendants – several CoA.
The plaintiff may unite in the same suit; several CoA
against those defendants if the defendants are jointly
interested in the CoA. This must be read with O1R3.
2 conditions that must be fulfilled to join 2 defendants in
one suit:
1. The relief claimed must have arisen out of the same
act/transaction, series of act or transactions and
2. common questions of law or fact must have been
involved.
eg: Udmiram v/s Balramdas – son challenges several the
alienations made by father, of the joint family property.
There is said to be a misjoinder –
If there is 1 suit, 2 or more defendants are joined – if the CoA are
separate and they are not jointly liable to the plaintiff in respect of
those CoA, and
Right to relief claimed is not based on the same act or transaction or
where common questions of fact or law are not involved.

Where a suit is bad for misjoinder of defendants and COA, it is

technically called Multifariousness.

Eg: 7 sellers – 7 contracts – to deliver salt to ‘A’. All 7 sellers breach

the contract to A. A cannot sue all 7 sellers as defendants in one suit.
– Namasivaya v/s Kadirammal.
d) Joinder of plaintiffs, defendants and causes of action (2+
plaintiffs, 2+ defendants, 2+ CoA = 1 suit)
Only when all the plaintiffs are jointly interested in CoA and the
defendants are also jointly liable in the CoA, can they be joined in
one suit.
********

Wrong joining of plf – if the plaintiffs are not jointly interested in

the CoA, the suit will be bad for misjoinder of plaintiffs and causes
of action.
On the other hand, if the defendants are not jointly interested in
the CoA, the suit will be bad for multifariousness.
If neither the plaintiffs nor the defendants are jointly interested
in the CoA, the suit will be bad for double misjoinder, i.e.,
misjoinder of plaintiffs +CoA and misjoinder of defendants +CoA.
Order 2 Rule 7
Objections as to misjoinder
All objections 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.
END