Order 2 rule 2

cleark

 

 

1. It was a case of specific performance, in which earlier a suit of permanent injunction was filed. 

2. Later on with the permission of court with the liberty to file fresh case was granted by court despite opposition on the basis of Order 2 rule 2. 

3. Opposite party moved to HC the issue of Order 2 rule 2 but it was dismissed by HC.

4. In specific performance case in lower court, again most of the defendant stand is again order 2 rules 2, which was fixed as an issue, but lower court decreed the case with cost.

5. Now case is in appeal in district court and main plea is again order 2 rules 2.  Point raised is that “In the original permanent injection case application, it was not mentioned that later on specific permission case can be filed”. Therefore court cannot give permission to withdraw and file fresh suit.

My query is

1.     How much his stand is valid when thrice, two times in lower court and one time in HC, he has failed?

2.     Even if his stand has some point, can such a small procedural omission can destroy my case?

3.     Can we raise issue of “Res judicata” here ?  


 
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Advocate Supreme Court of India

 

Order II, Rule 2, CPC is based on the principle that the defendants should not be twice vexed for one and the same cause....The rule contained in Order II, Rule 2 is directed against two evils, i.e., (i) the splitting of claims and (ii) splitting of remedies. The expression "cause of action" in Order IIRule 2, CPC means that cause of action for which the suit is laid, that is to say, the cause of action which gives occasion for and forms the foundation of the suit. "Cause of action" means the cause for which the suit was brought. If that cause of action enables a person to ask for a larger and wider relief suit has no reference to the defence taken in the suit nor is it related to the evidence by which the cause of action is established. But though the cause of action has no relation to and must be distinguished from the evidence by which the cause of action is proved, still the nature of the cause of action may be indicated by the nature of the evidence by which it is supported....If the relief claimed in the subsequent suit was not available to a plaintiff, at the time of filing of the first suit, then, Order II, Rule 2 CPC will not apply as the subsequent suit is based on a separate and distinct cause of action. The requirement of Order II, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. The tests to be applied to see whether the bar of Order II, Rule 2 is attracted or not are: (i) whether the cause of action in the previous suit and the subsequent suit is identical; (ii) whether the relief claimed in the subsequent suit could basis of the pleadings made in the plaint; and (iii) whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit. If the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff's subsequent suit is not hit by Order II, Rule 2, CPC. Inorder that a plea of a bar under Order II, Rule 2(3) should succeed, the defendant who raises the plea must make out (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; (iii) 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.

 Regards

VIRAJ KADAM

Advocate Supreme Court of India

virajkadam@gmail.com

 
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