Order 2 Rule 2 provides for Cause of Action, which basically is cause for which the suit was brought. Action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.
Order 2, rule 2 of CPC: Suit to include the whole claim
The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
Essentials of Order II, Rule 2:
In order to apply the provisions of Order II, Rule 2 of the CPC to bar a suit, the essentials are (1) as to what was the cause of action in respect of which the claim was made in the previous suit, (2) whether the claim or a portion of claim made in the subsequent suit was based on the same cause of action as the previous one and was between the same parties. Unless the second condition was fulfilled, there could be no bar to the claim made in the subsequent suit.
Cause of action
A test to find out whether the cause of action is the same is to see whether the same evidence will sustain both the suits. It is not necessary that in order to constitute the same cause of action all the allegations made in the two suits should be exactly identical.
A cause of action consists of all facts which it is essential for the plaintiff to allege and to establish and which taken with the law applicable to him gives the plaintiff a right against the defendant. It has also been defined by the courts as all essential facts constituting the right and its infringement.
Its operation is confined to cases where the plaintiff is entitled to more than one relief in respect to the same cause of action, and not to causes where he is entitled to one relief out of many reliefs to which he may be entitled. In other words, Order II, Rule 2, creates a bar where only cumulative relief can be, but are not asked for, and not where one of the alternative reliefs can be and is asked for in the first suit.
Mutation proceeding and Order II, rule 2
Mutation proceeding does not prohibit a party from instituting a suit in a civil court to establish his right to the property before the proceedings have been finally determined. Mutation proceedings are mutation passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court. A party to mutation proceedings is not prohibited from instituting a suit in a civil court to establish his right to the property before the mutation proceedings have been finally determined. Mutation proceeding going forward cannot be a bar to proceedings in the civil court to establish their title and could not affect Order 2, rule 2.
Omission or relinquishment of claim:
Casual omission of some items of property from the schedule to the plaint does not mean the abandonment of claim. Omission will also not bar if the plaintiff was not aware of his claim or right. The omission refers to intentional omission and not accidental omission. Relinquishment refers primarily to that before the institution of the suit. And where a person chooses a court by relinquishing a part of his claim, a subsequent suit for the relinquished portion of the claim will be barred by this rule. No subsequent order of the court can revive the right.
Gurbux Singh v. Bhoora Lal:
The suit was dismissed by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
Forward Construction Co. v. Prabhat Mandal:
In this case the High Court has not stated what was the ground of attack that plaintiff-appellant ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata.
Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd:
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.
Pramod Kumar & anr. V. Zalak Singh:
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. 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.
The concept of cause of action has evolved through case laws. It can thus be seen that Cause of Action is fundamental to a Civil Suit and no civil suit can exist without a cause of action taking place before it. Cause of Action means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed cause of Action consists of a bundle of facts which give cause to enforce the legal injury for redress in a court of law. Cause of Action must be antecedent to the institution of the suit. It is the choice of the plaintiff either to unite or not the case of actions. But the plaintiff has to include the whole claim and it is open to him to relinquish any portion of the claim.
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