Supreme Court of India
M/S VIRGO INDUSTRIES (ENG.) P.LTD.versusM/S.VENTURETECH SOLUTIONS P.LTD.
- Citation
- 2012 INSC 383
- Decided
- 7 September 2012
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
The later suits for specific performance are barred under Order II Rule 2(3) of the CPC because the cause of action is the same as the earlier suits and the plaintiff omitted the relief without leave of the court.
Summary
Virgo Industries (Eng.) Ltd filed two suits in 2005 seeking a permanent injunction against VentureTech Solutions Ltd to prevent alienation of two parcels of land. In 2007, while those suits were still pending, Virgo filed two additional suits for specific performance of the same sale agreements. The High Court held the later suits maintainable, reasoning that Order II Rule 2(3) of the CPC did not apply because the earlier suits were not yet disposed. On appeal, the Supreme Court examined whether the cause of action in the later suits was the same as in the earlier suits and whether Virgo’s omission of the specific performance relief without leave barred the later suits. The Court held that the cause of action was identical, the relief was omitted without court permission, and therefore the later suits were barred under Order II Rule 2(3). The appeals were allowed, the High Court order set aside, and the plaints in the 2007 suits were struck off.
Issues considered
- The applicability of Order II Rule 2 of the CPC to a subsequent suit filed during the pendency of an earlier suit.
- Whether the cause of action for specific performance is the same as that for a permanent injunction arising from the same sale agreements.
- Whether omission of a relief without leave of the court bars a later suit under Order II Rule 2(3).
- Whether the later suits for specific performance are barred under Order II Rule 2(3).
Legislation cited
- Code of Civil Procedure, 1908s. Order II Rule 2(2), s. Order II Rule 2(3)
- Specific Relief Act, 1963
Subjects
Order II Rule 2cause of actionspecific performancepermanent injunctionmultiplicity of suitsCivil Procedure Codebar on subsequent suitpremature suitleave of court
Judgment
(2012] 7 S.C.R. 933
M/S VIRGO INDUSTRIES (ENG.) P.LTD. A
v.
M/S.VENTURETECH SOLUTIONS P.LTD.
(Civil Appeal No. 6372 of 2012)
SEPTEMBER 7, 2012
B
(P. SATHASIVAM AND RANJAN GOGOi, JJ.]
Code of Civil Procedure, 1908:
Or II, r. 2 - Two suits on same cause of action - Bar u/Or II, c
r. 2 - Object - Applicability - Held: Or. II r. 2 seeks to avoid
multiplicity of litigations on same cause of action - The Rule
engrafts a laudable principle that discourages/prohibits vexing
the defendant again and again by multiple suits except in a
situation where one of the several reliefs, though available to 0
a plaintiff, may not have been claimed for a good reason - A
later suit for such relief is contemplated only with the leave of
the Court, granted upon due satisfaction and for good and
sufficient reasons - The cardinal requirement for application
of the provisions contained in Or. II r.2(2) and (3) is that the E
cause of action in the later suit must be the same as in the
first suit.
Or II, r. 2 - Applicability - Based upon an agreement to
sale entered into between the parties, respondent filed suit for
permanent injunction restraining the defendant-appellant from F
alienating, encumbering or dealing with the suit property to
any party other than the plaintiff - During pendency of the said
suit, respondent filed suit for specific performance of the
agreement to sale - Maintainability of the subsequent suit -
Held: The cause of action for both suits were the same - The G
foundation for the relief of permanent injunction claimed in
the earlier suit furnished a complete cause of action to the
plaintiff-respondent to also sue for the relief of specific
performance - Yet, the relief of specific performance was
933 H
934 .SUPREME COURT REPORTS (2012] 7 S.C.R.
A omitted and no leave in this regard was obtained or granted
by the Court - For claiming the relief of specific performance,
the plaintiff-respondent was not required to wait for expiry of
the due date for performance of the agreement to sale in a
situation where the defendant-appellant made his intentions
B clear by his overt acts - Or.II, r.2 would apply in both the
situations- when the earlier suit was disposed off and also
when the subsequent suit was filed during pendency of the
earlier suit - Consequently, subsequent suit filed by
respondent for specific performance was barred under the
c provisions of Or.II, r.2 - Plaint in the subsequent suit filed by
respondent accordingly struck off.
Words and Phrases - "cause of action" - Meaning of
On 28.8.2005 and 9.9.2005, the respondent had
D instituted a set of two suits before the High Court seeking
a decree of permanent injunction restraining the
defendant-appellant from alienating, encumbering or
dealing with the praint schedule properties to any other
third party other than the plaintiff-respondent. The said
E relief was claimed on the basis of two agreements of sale
entered into by the respondent and the appellant both on
27.7.2005 in respect of two different parcels of immovable
property.
Subsequently, on 29.5.2007, the respondent filed two
F suits for specific performance of the said agreements of
sale in the Court of the District Judge seeking a decree
against the appellant for execution and registration of the
sale deeds in respect of the same property and for
delivery of possession thereof to the respondent. While
G the matter was so situated, the appellant moved the High
Court by filing two separate applications under Article 227
of the Constitution to strike off the plaints in the
subsequent set of suits on the ground that the
provisions contained in Order II Rule 2, CPC was a bar
H
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 935
SOLUTIONS P.LTD.
to the maintainability of both the subsequent suits. A A
Single Judge of the High Court held that the provisions
of Order II Rule 2 (3), CPC were not attracted to render
the subsequent suits filed by the respondent non-
maintainable and, therefore, the instant appeals.
B
Allowing the appeals, the Court
HELD: 1.1. Order II Rule 1, CPC requires every suit
to include the whole of the claim to which the plaintiff is
entitled in respect of any particular cause of action.
However, the plaintiff has an option to relinquish 1my part C
of his claim if he chooses to do so. Order II Rule 2
contemplates a situation where a plaintiff omits to sue or
intentionally relinquishes any portion of the claim which
he is entitled to make. If the plaintiff so acts, Order II Rule
2, CPC makes it clear that he shall not, afterwards, sue D
for the part or portion of the claim that has been omitted
or relinquished. Order II Rule 2 (2) does not contemplate
omission or relinquishment of any portion of the plaintiffs
claim with the leave of the court so as to entitle him to
come back later to seek what has been omitted or E
relinquished. Such leave of the Court is contemplated by
Order II Rule 2(3) in situations where a plaintiff being
entitled to more than one relief on a particular cause of
action, omits to sue for all such reliefs. In such a situation,
the plaintiff is precluded from bringing a subsequent suit F
to claim the "relief earlier omitted except in a situation
where leave of the Court had been obtained. It is,
therefore, clear from a conjoint reading of the provisions
of Order II Rule 2 (2) and (3) of the CPC that the said two
sub-rules of Order II Rule 2 contemplate two different G
situations, namely, where a plaintiff omits or relinquishes
a part of a claim which he is entitled to make and,
secondly, where the plaintiff omits or relinquishes one out
of the several reliefs that he could have claimed in the
suit. It is only in the latter situations where the plaintiff can
H
936 SUPREME COURT REPORTS [2012] 7 S.C.R.
A file a subsequent suit seeking the relief omitted in the
earlier suit proved that at the time of omission to claim
the particular relief he had obtained leave of the Court in
the first suit. [Para 9] [944-D-H; 945-A-B]
1.2. The object behind enactment of Order II Rule 2(2)
8
and (3) of the CPC is not far to seek. The Rule engrafts a
laudable principle that discourages/ prohibits vexing the
defendant again and again by multiple suits except in a
situation where one of the several reliefs, though
available to a plaintiff, may not have been claimed for a
C good reason. A later suit for such relief is contemplated
only with the leave of the Court which leave, naturally, will
be granted upon due satisfaction and for good and
sufficient reasons. The cardinal requirement for
application of the provisions contained in Order II Rule
D 2(2) and (3) is that the cause of action in the later suit must
be the same as in the first suit. The true meaning of the
expression, i.e. cause of action, was clearly enunciated
in a recent judgment of this Court in Ponniamman
Educational Trust. The huge number of opinions
E rendered on the issue including the judicial
pronouncements available does not fundamentally
detract from what is stated in Halsbury's Law of England,
(4th Edition). [Paras 10, 11] [945-C-D; 946-D-E]
F Gurbux Singh v. Bhooralal AIR 1964 S~ 1810: 1964
SCR 831; Deva Ram & Anr. v. lshwar Chand & Anr. 1995
(6) SCC 733: 1995 (4) Suppl. SCR 369 and Mis. Bengal
Waterproof Ltd. v. Mis Bombay Waterproof Manufacturing
Co.& Anr. AIR 1997 SC 1398: 1996 (8) Suppl. SCR 695 -
G relied on.
Church of Christ Charitable Trust and Educational
Charitable Society, represented by its Chairman v.
Ponniamman Educational Trust represented by its
Chairperson/ Managing Trustee JT 2012 (6) SC 149 -
H referred to.
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 937
SOLUTIONS PLTD.
Halsbury's Law of England, (4th Edition) • referred to. A
2. In the instant case though leave to sue for the
relief of specific performance at a later stage was claimed
by the plaintiff in earlier suits, admittedly, no such leave
was granted by the Court. A reading of the plaints filed 8
in earlier suits showed the clear averments to the effect
that after execution of the agreements of sale the plaintiff
received a letter from the defendant conveying the
information that the Central Excise Department was
contemplating issuance of a notice restraining alienation C
of the property. The advance amounts paid by the plaintiff
to the defendant by cheques were also returned.
According to the plaintiff, it was surprised by the said
stand of the defendant who had earlier represented that
it had clear and marketable title to the property. The
plaintiff seriously doubted the claim made by the D
defendant regarding the proceedings initiated by the
Central Excise Department. In the plaint it was averred by
the plaintiff that the defendant was "finding an excuse to
cancel the sale agreement and sell the property to some
other third party." It was further stated in the plaint that E
"in this background, the plaintiff submits that the
defendant is attempting to frustrate the agreement
entered into between the parties." The averments made
by the plaintiff in earlier set of suits, leave no room for
doubt that on the dates when the earlier suits were F
instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff
itself had claimed that facts and events had occurred
which entitled it to contend that the defendant had no
intention to honour the agreements dated 27.7.2005. In
the said situation it was open for the plaintiff to G
incorporate the relief of specific performance alongwith
the relief of permanent injunction that formed the subject
matter of above two suits. The foundation for the relief
of permanent injunction claimed in the two earlier suits
furnished a complete cause of action to the plaintiff to H
938 SUPREME COURT REPORTS [2012] 7 S.C.R.
A also sue for the relief of specific performance. Yet, the
said relief was omitted and no leave in this regard was
obtained or granted by the Court. Furthermore, according
to the plaintiff, which fact is also -stated in the plaints filed
in the earlier suits, on the date when the aforesaid two
B suits were filed the relief of specific performance was
premature inasmuch as the time for execution of the sale
documents by the defendant in terms of the agreements
dated 27.7.2005 had not elapsed. According to the
plaintiff, it is only after the expiry of the said period of time
c and upon failure of the defendant to execute the sale
deeds despite the legal notice dated 24.2.2006 that the
cause of action to claim the relief of specific performance
had accrued. The above stand of the plaintiff incorrectly
found favour with the High Court. A suit claiming a relief
to which the plaintiff may become entitled at a
0
subsequent point of time, though may be termed as
premature, yet, cannot per se be dismissed to be
presented on a future date. There is no universal rule to
the above effect inasmuch as "the question of a suit
being premature does not go to the root of the
E jurisdiction of the Court". Even there is no provision in
the Specific Relief Act, 1963 requiring a plaintiff claiming
the relief of specific performance to wait for expiry of the
due date for performance of the agreement in a situation
where the defendant may have made his intentions clear
F by his overt acts. [Paras 12-15] [947-D-H; 948-A-H; 949-
C-D]
Vithalbhai (P) Ltd. v. Union Bank of India 2005(4) SCC
315: 2005 (2) SCR 680 - relied on.
G 3. The Single Judge of the High Court had
considered, and very rightly, to be bound to follow an
earlier Division Bench order in the case of R. Vimalchand
and M. Ratanchand v. Rama/ingam, T.Srinivasalu & T.
Venkatesaperumal holding that the provisions of Order
H II Rule 2 of the CPC would be applicable only when the
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 939
SOLUTIONS P.LTD.
first suit is disposed of. As in the present case the second A
set of suits were filed during the pendency of the earlier
suits, it was held, on the ratio of the said decision of the
Division Bench of the High Court, that the provisions of
Order II, Rule 2(3) will not be attracted. Judicial discipline
required the Single Judge of the High Court to come to B
the aforesaid conclusion. However, this Court is unable
to agree with the same in view of the object behind the
enactment of the provisions of Order II Rule 2 of the CPC,
namely, that Order II Rule 2 of the CPC seeks to avoid
multiplicity of litigations on same cause of action. The c
true object of the law would not stand fully subserved if
it is held that the provisions of Order II Rule 2 of the CPC
will apply only if the first suit is disposed of and not in a
situation where the second suit has been filed during the
pendency of the first suit. Rather, Order II, Rule 2 of the 0
CPC will apply to both the aforesaid situations.
Consequently, the plaint in the subsequent suits on the
file of District Judge is struck off. [Para 16, 17) [949-D-H;
950-A-C]
Murti v. Bhola Ram (1894) ILR 16 All 165 and Krishnaji E
v. Raghunath AIR 1954 Born 125 - approved.
R. Vimalchand and M. Ratanchand v. Ramalingam,
T. Srinivasalu & T. Venkatesaperumal 2002 (3) MLJ 177 - not
approved.
F
Case Law Reference:
2002 (3) MLJ 177 not approved Para 6
1964 SCR 831 relied on Para 10
G
1995 (4) Suppl. SCR 369 relied on Para 10
1996 (8) Suppl. SCR 695 relied on Para 10
JT 2012 (6) SC 149 referred to Para 11
2005 (2) SCR 680 relied on Para 15 H
940 SUPREME COURT REPORTS [2012] 7 S.C.R.
A (1894) ILR 16 All 165 approved Para 16
AIR 1954 Born 125 approved Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6372 of 2012.
B
From the Judgment and Order dated 06.10.2009 of the
High Court of Judicature at Madras in C.R.P.PD. No. 3758 of
2007.
WITH
c C.A. No. 6373 of 2012.
C.A. Sundaram, V. Achuthan, Rohini Musa, Zafar lnayat,
Yogesh V. Kotemath, Binu Tamta for the Appellant.
0 S. Gurukrishna Kumar, Srikala G.K., A. Prasanna Venkat,
S.R. Setia for the Respondent.
The Judgment of the Court was delivered by
RANJAN GOGOi, J. 1. Leave granted.
E
2. Both the appeals are directed against the common
judgment and order dated 6.10.2009 passed by the High Court
of Madras by which the High Court has refused to interdict the
proceedings registered and numbered as OS Nos. 202 and
F 203 of 2007 pending in the Court of the learned District Judge,
Thiruvallur filed by the respondents herein.
3. The brief facts that would be required to be noticed for
the purpose of the present adjudication may now be
recapitulated.
G
The respondent in the two appeals, as the plaintiff,
instituted C.S No. 831 of 2005 and C.S. No. 833 of 2005
before the Madras High Court seeking a decree of permanent
injunction restraining the appellant (defendant) from alienating,
H encumbering or dealing with the plaint schedule properties to
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH941
SOLUTIONS P.LTD. [RANJAN GOGOi, J.]
any other third party other than the plaintiff. The aforesaid relief A
was claimed on the basis of two agreements of sale entered
into by the plaintiffs and the defendant both on 27.7.2005 in
respect of two different parcels of immovable property
consisting of land and superstructures built on plot No. 65 (old
No.43) and plot No. 66 (old No.42), Second Main Road, B
Ambattur Industrial Estate, Chennai. In each of the aforesaid
suits the plaintiff had stated that under the agreements of sale
different amounts were paid to the defendants, yet, on the
pretext that restrictions on the alienation of the suit land were
likely to be issued by the Central Excise Department on c
account of pending revenue demands, the defendants were
attempting to frustrate the agreements in question. In the suits
filed by the plaintiff it was also stated that as the period of six
months fixed for execution of the sale deeds under the
agreements in question was not yet over, the plaintiff is not D
claiming specific performance of the agreements. The plaintiff,
accordingly, sought leave of the court to omit to claim the relief
of specific performance with liberty to sue for the said relief at
a later point of time, if necessary. The two suits in question, i.e.,
C.S. Nos. 831 and 833 of 2005 were filed by the plaintiff on E
28.8.2005 and 9.9.2005 respectively.
4. Thereafter on 29.5.2007, O.S. Nos. 202 and 203 were
filed by the plaintiff in the Court of the District Judge, Tiruvallur
seeking a decree against the defendant for execution and
registration of the sale deeds in respect of the same property F
and for delivery of possession thereof to the plaintiff. In the
aforesaid latter suits it was mentioned by the plaintiff that in
respect of the same suit property it had earlier filed suit Nos.
C.S. 831 and 833 of 2005 seeking the relief of permanent
injunction. As the time for performance of the agreements of G
sale had not elapsed when C.S. No.831 and 833 of 2005 were
instituted and the plaintiff was "under the bonafide belief that
the defendants would perform the agreement" the relief of
specific performance was not claimed in the aforesaid suits.
However, as inspite of a legal notice issued to the defendants H
942 SUPREME COURT REPORTS (2012] 7 S.C.R.
A on 24.2.2006, the sale deeds had not been executed by the
defendant the latter suits i.e. O.S.Nos 202 and 203 were
instituted.
5. While the matter was so situated the defendant in both
the suits i.e. the present petitioner, moved the Madras High
8
Court by filing two separate applications under Article 227 of
the Constitution to strike off the plaints in O.S. Nos. 202 and
203 of 2007 on the ground that the provisions contained in
Order II Rule 2 of the Civil Procedure Code, 1908 (for short the
'CPC') is a bar to the maintainability of both the suits. Before
C the High Court the defendant had contended that the cause of
action for both sets of suits were the same, namely, the refusal
or reluctance of the defendant to execute the sale deeds in
terms of the agreements dated 27.7.2005. Therefore, at the
time of filing of the first set of suits i.e. C.S. Nos. 831 and 833
D of 2005, it was open for the plaintiff to claim the relief of specific
performance. The plaintiff did not seek the said relief nor was
leave granted by the Madras High Court. In such
circumstances, according to the defendant-petitioner, the suits
filed by the plaintiff for specific performance i.e O.S. Nos. 202
E and 203 were barred under the provisions of Order II Rules 2
(3) of the CPC.
6. The High Court, on consideration of the cases of the
parties before it, took the view that on the date of filing of C.S.
F Nos. 831 and 833 of 2005 the time stipulated in the agreements
between the parties for execution of the sale deeds had not
expired. Therefore, the cause of action to seek the relief of
specific performance had not matured. According to the High
Court it is only after filing of the aforesaid suits and on failure
of the defendants to execute the sale deeds pursuant to the
G legal notice dated 24.2.2006 that the cause of action to seek
the aforesaid relief of specific performance had accrued. The
High Court, accordingly, took the view that the provisions of
Order II Rule 2 (3) of the CPC were not attracted to render the
subsequent suits filed by the plaintiff i.e. O.S. Nos. 202 and 203
H
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 943
SOLUTIONS P.LTD. [RANJAN GOGOi, J.]
non-maintainable. The High Court also took the view that the A
provisions of Order II Rule 2 (3) of the CPC would render a
subsequent suit not maintainable, only, if the earlier suit has
been decreed and the said provisions of the CPC will not apply
if the first suit remains pending. In arriving at the aforesaid
conclusion the learned Single Judge of the High Court B
considered himself to be bound by the decision of a Division
Bench of the same High Court in the case of R. Vimalchand
and M. Ratanchand v. Ramalingam, T Srinivasalu & T
Venkatesaperumal1. The High Court also held that though the
application filed by the defendant under Article 227 of the c
Constitution was not maintainable as the defendant had the
remedy of approaching the learned trial court under Order VII
Rule 11 of the CPC, yet, in view of the elaborate discussions
that have been made and findings and conclusions recorded
it would be appropriate to decide the issues raised on merits. D
It is the correctness of the aforesaid view of the High Court that
has been assailed in the present appeals.
7. We have heard Mr. C.A. Sundaram, learned senior
counsel for the appellants and Mr. S.Gurukrishna Kumar,
learned counsel for the respondent. E
8. The necessary discussions that will have to follow may
be initiated by extracting the provisions of Order II Rule 2 of the
CPC:
F
"ORDER II
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 G
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
1. 2002 (3) MLJ Page 177. H
944 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 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
B
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.
c 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."
9. Order II Rule 1 requires every suit to include the whole
0
of the claim to which the plaintiff is entitled in respect of any
particular cause of action. However, the plaintiff has an option
to relinquish any part of his claim if he chooses to do so. Order
II Rule 2 contemplates a situation where a plaintiff omits to sue
E or intentionally relinquishes any portion of the claim which he
is entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC
makes it clear that he shall not, afterwards, sue for the part or
portion of the claim that has been omitted or relinquished. It
must be noticed that Order II Rule 2 (2) does not contemplate
omission or relinquishment of any portion of the plaintiffs claim
F with the leave of the court so as to entitle him to come back
later to seek what has been omitted or relinquished. Such leave
of the Court is contemplated by Order II Rule 2(3) in situations
where a plaintiff being entitled to more than one relief on a
particular cause of action, omits to sue for all such reliefs. In
G such a situation, the plaintiff is precluded from bringing a
subsequent suit to claim the relief earlier omitted except in a
situation where leave of the Court had been obtained. It is,
therefore, clear from a conjoint reading of the provisions of
Order II Rule 2 (2) and (3) of the CPC that the aforesaid two
H sub-rules of Order II Rule 2 contemplate two different situations,
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 945
SOLUTIONS P.LTD. [RANJAN GOGOi, J.]
namely, where a plaintiff omits or relinquishes a part of a claim A
which he is entitled to make and, secondly, where the plaintiff
omits or relinquishes one out of the several reliefs that he could
have claimed in the suit It is only in the latter situations where
the plaintiff can file a subsequent suit seeking the relief omitted
in the earlier suit proved that at the time of omission to claim B
the particular relief he had obtained leave of the Court in the
first suit.
10. The object behind enactment of Order II Rule 2 (2) and
(3) of the CPC is not far to seek. The Rule engrafts a laudable C
principle that discourages/prohibits vexing the defendant again
and again by multiple suits except in a situation where one of
the several reliefs, though available to a plaintiff, may not have
been claimed for a good reason. A later suit for such relief is
contemplated only with the leave of the Court which leave,
naturally, will be granted upon due satisfaction and for good and D
sufficient reasons. The situations where the bar under Order II
Rule 2 (2) and (3) will be attracted have been enumerated in a
long line of decisions spread over a century now. Though each
of the aforesaid decisions contain a clear and precise narration
of the principles of law arrived at after a detailed analysis, the E
principles laid down in the judgment of the Constitution Bench
of this Court in Gurbux Singh v. Bhoora/aP may be usefully
recalled below:
"In order that a plea of a bar under 0. 2. r. 2(3), Civil F
Procedure Code should succeed the defendant who raises
the plea must make out (1) that the second suit was in
respect of the same cause of action as that on which the
previous suit was based, (2) that in respect of that cause
of action the plaintiff was entitled to more than one relief, G
(3) 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.
From this analysis it would be seen that the defendant
2. AIR 1964 SC 1810. H
946 SUPREME COURT REPORTS [2012] 7 S.C.R.
A would have to establish primarily and to start with, the
precise cause of action upon which the previous suit was
filed, for unless there is identity between the cause of
action on which the earlier suit was filed and that on which
the claim in the later suit is based there would be no scope
B for the application of the bar."
The above principles have been reiterated in several later
judgments of this Court. Reference by way of illustration may
be made to the judgments Deva Ram & Anr. v. lshwar Chand
C & Anr. 3 and Mis. Bengal Waterproof Ltd. v. Mis Bombay
Waterproof Manufacturing Co.& Anr. 4
11. The cardinal requirement for application of the
provisions contained in Order II Rule 2(2) and (3), therefore, is
that the cause of action in the later suit must be the same as in
D the first suit. It will be wholly unnecessary to enter into any
discourse on the true meaning of the said expression, i.e. cause
of action, particularly, in view of the clear enunciation in a recent
judgment of this Court in the Church of Christ Charitable Trust
and Educational Charitable Society, represented by its
E Chairman v. Ponniamman Educational Trust represented by
its Chairperson/Managing Trustee 5 • The huge number of
opinions rendered on the issue including the judicial
pronouncements available does not fundamentally detract from
what is stated in Halsbury's Law of England, (4th Edition). The
F following reference from the above work would, therefore, be
apt for being extracted hereinbelow:
"Cause of Action" has been defined as meaning simply a
factual situation existence of which entitles one person to
obtain from the Court a remedy against another person.
G The phrase has been held from earliest time to include
every fact which is material to be proved to entitle the
3. 1995 (6) sec 733.
4. AIR 1997 SC 1398.
H 5. JT 2012 (6) SC 149.
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 947
SOLUTIONS P.LTD. [RANJAN GOGOi, J.]
plaintiff to succeed, and every fact which a defendant A
would have a right to traverse. 'Cause of action' has also
been taken to mean that particular action the part of the
defendant which gives the plaintiff his cause of complaint,
or the subject-matter of grievance founding the action, not
merely the technical cause of action." B
12. In the instant case though leave to sue for the relief of
specific performance at a later stage was claimed by the
plaintiff in C.S. Nos. 831 and 833 of 2005, admittedly, no such
leave was granted by the Court. The question, therefore, that
the Court will have to address, in the present case, is whether C
the cause of action for the first and second set of suits is one
and the same. Depending on such answer as the Court may
offer the rights of the parties will follow.
13. A reading of the plaints filed in C.S. Nos. 831 and 833 D
of 2005 show clear averments to the effect that after execution
of the agreements of sale dated 27. 7.2005 the plaintiff received
a letter dated 1.8.2005 from the defendant conveying the
information that the Central Excise Department was
contemplating issuance of a notice restraining alienation of the E
property. The advance amounts paid by the plaintiff to the
defendant by cheques were also returned. According to the
plaintiff it was surprised by the aforesaid stand of the defendant
who had earlier represented that it had clear and marketable
title to the property. In paragraph 5 of the plaint, it is stated that F
the encumbrance certificate dated 22.8.2005 made available
to the plaintiff did not inspire confidence of the plaintiff as the
same contained an entry dated 1.10.2004. The plaintiff,
therefore, seriously doubted the claim made by the defendant
regarding the proceedings initiated by the Central Excise G
Department. In the aforesaid paragraph of the plaint it was
averred by the plaintiff that the defendant is "finding an excuse
to cancel the sale agreement and sell the property to some
other third party." In the aforesaid paragraph of the plaint, it was
further stated that "in this background, the plaintiff submits that H
948 SUPREME COURT REPORTS [2012] 7 S.C. R.
A the defendant is attempting to frustrate the agreement entered
into between the parties."
14. The averments made by the plaintiff in C.S. Nos. 831
and 833 of 2005, particularly the pleadings extracted above,
leave no room for doubt that on the dates when C.S. Nos. 831
8
and 833 of 2005 were instituted, namely, 28.8.2005 and
9.9.2005, the plaintiff itself had claimed that facts and events
have occurred which entitled it to contend that the defendant
had no intention to honour the agreements dated 27.7.2005.
In the aforesaid situation it was open for the plaintiff to
C incorporate the relief of specific performance alongwith the
relief of permanent injunction that formed the subject matter of
above two suits. The foundation for the relief of permanent
injunction claimed in the two suits furnished a complete cause
of action to the plaintiff in C.S. Nos. 831 and 833 to also sue
D for the relief of specific performance. Yet, the said relief was
omitted and no leave in this regard was obtained or granted
by the Court.
15. Furthermore, according to the plaintiff, which fact is also
E stated in the plaints filed in C.S. Nos. 831 and 833, on the date
when the aforesaid two suits were filed the relief of specific
performance was premature inasmuch as the time for execution
of the sale documents by the defendant in terms of the
agreements dated 27.7.2005 had not elapsed. According to
F the plaintiff, it is only after the expiry of the aforesaid period of
time and upon failure of the defendant to execute the sale deeds
despite the legal notice dated 24.2.2006 that the cause of
action to claim the relief of specific performance had accrued.
The above stand of the plaintiff found favour with the High Court.
G We disagree. A suit claiming a relief to which the plaintiff may
become entitled at a subsequent point of time, though may be
termed as premature, yet, can not per se be dismissed to be
presented on a future date. There is no universal rule to the
above effect inasmuch as "the question of a suit being
premature does not go to the root of the jurisdiction of the Court"
H
VIRGO INDUSTRIES (ENG.) P.LTD. v. VENTURETECH 949
SOLUTIONS P.LTD. [RANJAN GOGOi, J.]
as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of A
lndia 6 • In the aforesaid case this Court has taken the view that
whether a premature suit is required to be entertained or not
is a question of discretion and unless "there is a mandatory bar
created by a statute which disables the plaintiff from filing the
suit on or before a particular date or the occurrence of a B
particular event", the Court must weigh and balance the several
competing factors that are required to be considered including
the question as to whether any useful purpose would be served
by dismissing the suit as premature as the same would entitle
the plaintiff to file a fresh suit on a subsequent date. We may C
usefully add in this connection that there is no provision in the
Specific Relief Act, 1963 requiring a plaintiff claiming the relief
of specific performance to wait for expiry of the due date for
performance of the agreement in a situation where the defendant
may have made his intentions clear by his overt acts.
D
16. The learned Single Judge of the High Court had
considered, and very rightly, to be bound to follow an earlier
Division Bench order in the case of R. Vimalchand and
M. Ratanchand v. Ramalingam, T. Srinivasa/u & T.
Venkatesaperumal (supra) holding that the provisions of Order E
II Rule 2 of the CPC would be applicable only when the first suit
is disposed of. As in the present case the second set of suits
were filed during the pendency of the earlier suits, it was held,
on the ratio of the aforesaid decision of the Division Bench of
the High Court, that the provisions of Order 11, Rule 2(3) will not F
be attracted. Judicial discipline required the learned Single
Judge of the High Court to come to the aforesaid conclusion.
However, we are unable to agree with the same in view of the
object behind the enactment of the provisions of Order II Rule
2 of the CPC as already discussed by us, namely, that Order II G
Rule 2 of the CPC seeks to avoid multiplicity of litigations on
same cause of action. If that is the true object of the law, on
which we do not entertain any doubt, the same would not stand
fully subserved by holding that the provisions of Order II Rule 2
6. 2005 (4) sec 315.
H
950 SUPREME COURT REPORTS [2012] 7 S.C.R.
A of the CPC will apply only if the first suit is disposed of and not
in a situation where the second suit has been filed during the
pendency of the first suit. Rather, Order 11, Rule 2 of the CPC
will apply to both the aforesaid situations. Though direct judicial
pronouncements on the issue are somewhat scarce, we find
B that a similar view had been taken in a decision of the High
Court at Allahabad in Murti v. Bhola Ram and by the Bombay
High Court in Krishnaji v. R~ghunath 7•
17. In the light of the above discussions we are of the view
that the present appeals deserve to be allowed. Accordingly
C we allow the same and set aside the judgment and order dated
6.10.2009 passed by the High Court of Madras in C.R.P.PD.
Nos. 3758 and 3759 of 2007. Consequently, we strike off the
plaint in O.S.Nos.202 and 203 of 2007 on the file of District
Judge, Thiruvallur.
D
B.B.B. Appeals allowed.
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