Holding

The bar under Order II Rule 2 of the CPC applies because both suits arise from the same cause of action, rendering the second suit barred.

Summary

The appellants, Pramod Kumar and another, challenged two separate alienations of ancestral land by their father Tikaram. They filed a suit in 1963 to set aside the first sale deed (21‑01‑1959) and later, in 1971, a second suit to set aside the second sale deed (11‑02‑1959). Both suits were dismissed by the trial court and the appellate court on the ground of Order II Rule 2 of the CPC and constructive res judicata. The High Court reversed this view, holding that the two alienations gave rise to distinct causes of action. The Supreme Court examined the meaning of "cause of action" and the scope of Order II Rule 2, held that the two suits arose from the same cause of action, that the different limitation periods under Article 109 of the Limitation Act do not defeat the bar, and that the bar under Order II Rule 2 therefore applies. Consequently, the High Court’s judgment was set aside and the appeal was allowed.

Issues considered

The applicability of Order II Rule 2 of the CPC to bar the second suit when the first suit was filed for a related alienation.
Whether the different limitation periods under Article 109 of the Limitation Act create separate causes of action.
Whether constructive res judicata applies to the second suit.
Whether the plaintiff could have combined the causes of action under Order II Rule 3.

Legislation cited

Code of Civil Procedure, 1908s. Order II Rule 2(1), s. Order II Rule 2(2), s. Order II Rule 2(3), s. Order II Rule 3, s. Order VII Rule 1
Limitation Act, 1963s. Article 109

Subjects

cause of actionOrder II Rule 2res judicataconstructive res judicataLimitation Actancestral propertymultiple suitsCivil Procedure Codebar of suit

Judgment

[2019] 7 S.C.R. 919 919

PRAMOD KUMAR & ANR. A
v.
ZALAK SINGH & ORS.
(Civil Appeal Nos. 1055 of 2019)
MAY 10, 2019 B
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Code of Civil Procedure, 1908: Order II, Rule 2(1) – Suit to
include the whole claim – Two alienations by father of separate
areas of the ancestral property, on different dates – Filing of
C
separate suits for setting aside the two sale deeds – First suit
dismissed by the trial court – Second suit dismissed by the trial
court as also the appellate court on the ground of Order II, rule 2
and constructive res judicata – High Court setting aside the order
– On appeal held: 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 D
of the cause of action – However, if a plaintiff omits to sue or
relinquishes intentionally any portion of his claim, he shall be barred
from suing on that portion so omitted or relinquished – However, if
different reliefs could be sought for in one suit arising out of a
cause of action, if leave is obtained from the Court, then a second
E
suit, for a different relief than the one claimed in the earlier suit,
can be prayed for – Principle underlying Order II, Rule 2 is that no
man can be vexed twice over the same cause of action. All claims
and reliefs, which arise from a cause of action, must be
comprehended in one single suit – On facts, at the time when the
first suit was filed even though the second alienation could be F
challenged and it stemmed from one single cause of action and not
two different causes of action, the mere fact that a different period
of limitation is provided, cannot stand in the way of the bar under
Order II, Rule 2 – At the time of filing of the first suit, late predecessor-
in-interest of the plaintiff, had also executed another sale deed which
G
constituted the remaining portion of the land – Suits contained
virtually identical averments in regard to both the transactions – In
such circumstances, it was open to the plaintiff to seek relief in
respect of the second sale executed by their predecessor-in-interest
– On the same cause of action, the plaintiffs having omitted to sue
H
919
920 SUPREME COURT REPORTS [2019] 7 S.C.R.

A in respect of the sale deed, the bar under Order II, Rule 2 would
apply – Thus, the judgment of the High Court is set aside.
Cause of action – Meaning of – Explained.
Allowing the appeal, the Court
B HELD: 1.1 Order II, Rule 2(1) of the Code of Civil
Procedure, 1908 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. Order II, Rule 2 provides for the consequences of
relinquishment of a part of a claim and also the consequences of
C omitting a part of the claim. It declares that if a plaintiff omits to
sue or relinquishes intentionally any portion of his claim, he shall
be barred from suing on that portion so omitted or relinquished.
Order II, Rule 2(3), however, deals with the effect of omission to
sue for all or any of the reliefs in respect of the same cause of
D action. The consequences of such omission will be to preclude
plaintiff from suing for any relief which is so omitted. The only
exception is when he obtains leave of the Court. Thus, 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
E the claim so omitted or relinquished. However, if different reliefs
could be sought for in one suit arising out of a cause of action, if
leave is obtained from the Court, then a second suit, for a different
relief than one claimed in the earlier suit, can be prayed for. There
are three expressions which are found in Order II, Rule 2. Firstly,
F there is reference to the word “cause of action”, secondly the
word “claim is alluded to” and finally reference is made to “relief”.
[Paras 26, 27] [931-H; 932-A-B; 933-C-D]
1.2 The defence set up by the defendants, would be
irrelevant to determine what cause of action means. The reliefs,
G which are sought by the plaintiffs, will not be determinative of
what constitutes cause of action. Cause of action as explained by
the Privy Council means the media through which the plaintiff
seeks to persuade the Court to grant him relief. It could,
therefore, be said to be the factual and legal basis or premise
upon which the Court is invited by the plaintiff to decide the case
H
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 921

in his favour. It is also clear that the cause of action, in both the A
suits, must be identical. In order that it be identical, what matters,
is the substance of the matter. [Para 28] [933-E-F]
1.3 The period of limitation under Article 109 is different
from the period of limitation in respect of the first sale deed,
cannot operate so as to exclude the bar under Order II, Rule 2. B
The principle underlying Order II, Rule 2 is that no man can be
vexed twice over the same cause of action. All claims and reliefs,
which arise from a cause of action, must be comprehended in one
single suit. Order II, Rule 2 provides for the principle of repose.
If this be the underlying object of Order II, Rule 2, the fact that
at the time when the first suit was filed even though the second C
alienation could be challenged and it stemmed from one single
cause of action and not two different causes of action, the mere
fact that a different period of limitation is provided, cannot stand
in the way of the bar under Order II, Rule 2. [Para 35] [937-F-H;
938-A] D
1.4 Order VII Rule 1 provides for the particulars to be
contained in a plaint. It, inter alia, provides that the facts
constituting the cause of action and when it arose, be pleaded.
Apparently, the submission of the respondents is having regard
to Article 109 of the Limitation Act, the cause of action as E
provided in Article 109, would commence from the date of the
deed being 11.02.1959, and therefore, it has a different period of
limitation. It indicates that cause of action, raised in the second
suit, is not identical with a cause of action in the first suit. This
submission proceeds on a misapprehension as to what constitutes
the cause of action. It is the bundle of facts, which if traversed, F
must be proved. However, as laid down by the Privy Council, it
would be understood also to mean the media through which
Court’s intervention is sought by the plaintiff. [Para 36]
[938-B-D]
1.5 The case of the plaintiffs appears to be that the property G
is ancestral property. Their late father T was given to wasteful
ways and addicted to drink and otherwise. He was given to selling
properties. His well-wishers intervened and partition ensued.
However, 8.22 acres was kept out of the partition deed. He decided
to sell 8.22 acres without there being any legal necessity and H
922 SUPREME COURT REPORTS [2019] 7 S.C.R.

A without any benefit to the joint family. The first part of the
transaction, which consisted of two parts, pertained to sale deed
and that was the subject matter of the first suit. At the time of
filing of the said first suit, late predecessor-in-interest of the
plaintiff, had also executed another sale deed which constituted
the remaining portion which consisted of the 8.22 acres land.
B
The suits contained virtually identical averments in regard to
both the transactions. The first suit was filed in 1963 and the
second suit filed in the year 1971. [Para 38] [938-E-G]
1.6 In such circumstances, this is a case where the plaintiff
ought to have included relief in the form of setting aside the
C second sale deed also. This is not a case where the second sale
deed had not been executed when the plaintiff instituted the first
suit. It was open to the respondent/plaintiff to seek relief in respect
of the second sale executed by their predecessor-in-interest and
what is more important in favour of the same parties (defendants)
D who are the appellants. The High Court has proceeded to reason
based on Order II, Rule 3. It is open to the plaintiff to combine
causes of action. [Para 39, 40] [938-H; 939-A-C]
1.7 The law does not compel a litigant to combine one or
more causes of action in a suit. It is open to a plaintiff, if he so
E wishes, however to combine more than one cause of action against
same parties in one suit. However, it is true that the embargo in
Order II Rule 2 will arise only if the claim, which is omitted or
relinquished and the reliefs which are omitted and not claimed,
arise from one cause of action. If there is more than one cause of
action, Order II, Rule 2 will not apply. It is also true that Order
F II, Rule 2 manifests a technical rule as it has the effect of posing
an obstacle in the path of a litigant ventilating his grievance in
the Courts. But there is an equally important principle that no
person shall be vexed twice on the same cause of action. On the
same cause of action, the plaintiffs having omitted to sue in respect
G of the sale deed in question, the bar under Order II, Rule 2 would
apply. In view thereof it is not necessary to pronounce on the
question relating to constructive res judicata. Thus, the judgment
of the High Court is set aside. [Para 41, 42] [939-E-H; 940-A-B]
Coffee Board v. Ramesh Exports Private Limited (2014)
H 6 SCC 424 : [2014] 7 SCR 461 ; A.B.C. Laminart Pvt.
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 923

Ltd. & Anr. v. A.P. Agencies, Salem (1989) 2 SCC 163 : A
[1989] 2 SCR 1 ; Alka Gupta v. Narender Kumar Gupta
(2010) 10 SCC 141 : [2010] 11 SCR 756 ; Virgo
Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P)
Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 ; Gurbux
Singh v. Bhooralal AIR 1964 SC 1810 : 1964
B
SCR 831 ; Union of India v. H.K. Dhruv (2005) 10
SCC 218 ; S. Nazeer Ahmed v. State Bank of Mysore
(2007) 11 SCC 75 : [2007] 1 SCR 843 – referred to.
Case Law Reference
[2014] 7 SCR 461 referred Para 8 C
[1989] 2 SCR 1 referred Para 8
[2010] 11 SCR 756 referred Para 10, 31
[2012] 7 SCR 933 referred Para 22
[1964] SCR 831 referred Para 31 D
(2005) 10 SCC 218 referred Para 33
[2007] 1 SCR 843 referred Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1055
of 2019. E
From the Judgment and Order dated 31.08.2012 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal
No. 5 of 1995.
Nikhil Nayyar, Garvesh Kabra, V. R. Munde, Advs. for the
Appellants. F
R. K. Borkar, Shirish K. Deshpande, Ishwar Chavlewar, Mohit
Gautam, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J. G
1. This appeal by special leave is directed against the judgment
and order dated 31.08.2012 passed by the High Court in Second Appeal
No. 5 of 1995. By the impugned judgment, the High Court has set aside
the concurrent findings of the Courts below resulting in dismissal of the
suit filed by the respondents (plaintiffs) on the ground that the suit was H
924 SUPREME COURT REPORTS [2019] 7 S.C.R.

A barred by Order II Rule 2 of the Code of Civil Procedure, 1908
(hereinafter referred to ‘the CPC’) as also constructive res judicata.
The High Court has remanded the matter to the First Appellate Court to
decide on merits.
2. One Tikaram was the husband of respondent No.4 and the
B father of respondent Nos. 1 to 3. He was holding 8.22 acres of land in
Khasra No.189 at Village Gondia in his name. On 21.01.1959, he sold
the land to the extent of 3.20 acres out of the total 8.22 acres to the
appellants and thereafter, on 11.02.1959, he sold the remaining portion
of 4.82 acres of land, which was the balance out of 8.22 acres, also to
the appellants. Tikaram passed away on 15.07.1959.
C
The respondents filed a suit (bearing Civil Suit No. 131 of 1963)
for setting aside the Sale Deed dated 21.01.1959 and for other reliefs.
The allegation made by the respondents in the suit was that the land was
a joint family ancestral property and he had sold it for immoral purposes
and in a manner prejudicial to the interest of joint family. He was addicted
D to drink and there was no necessity to sell the property.
3. On 31.01.1969, the Trial Court dismissed the said suit holding
that Tikaram was the owner of the property due to the partition effected
in the year 1957. Hence, he had the right to sell the suit land. The
appellants were bona fide purchasers.
E
4. Aggrieved by the decree of the Trial Court, the respondents
filed an appeal (bearing Civil Appeal NO. 22 of 1969) on 10.02.1971.
5. The respondents again filed the present suit (bearing Civil Suit
No. 34 of 1971) challenging the Sale Deed dated 11.02.1959 and seeking
F other reliefs. It is the said suit which came to be dismissed both by the
Trial Court and the First Appellate Court. The Trial Court answered the
issues including whether the Suit is barred under Order II Rule 2 and
also affected by constructive res judicata. It found that the suit is liable
to be dismissed on the ground of Order II Rule 2 and constructive res
judicata. The dismissal by the Appellate Court was essentially on the
G basis of the provisions of Order II Rule 2 of the CPC as also constructive
res judicata on the score that the second alienation dated 11.02.1959
ought to have been the subject matter of the earlier suit. The Appellate
Court, in fact, found that the Trial Court was right in answering the other
points. It is to be noted that the judgment of the Trial Court in the first
H
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 925
[K. M. JOSEPH, J.]

suit came to be reversed in the civil appeal and the same has become A
final.
6. The High Court, however, reversing the orders of both the
courts found that Order II Rule 2 will not be a bar. For Order II Rule 2,
the cause of action in the first suit and the cause of action in the second
suit must be identical. In this case, there were two alienations by the B
Tikaram giving rise to two cause of actions. It is also found that
constructive res judicata will not apply.
7. We have heard learned counsel for the parties and perused the
record.
8. Learned counsel for the appellants contended that the High C
Court has clearly erred in coming to the conclusion that Order II Rule 2
was not a bar. Order II Rule 2 is indeed attracted. He took us through
the pleadings in the two suits and contended that the cause of action in
the second suit is identical with the cause of action in the first suit. As
on the date of the institution of the first suit, the second alienation was D
very much available to be impugned and it is not open to the respondents
to split the cause of action in separate suits and seek relief which is
precisely what has been done by the respondents in this case. He relied
upon the judgment of this Court in Coffee Board v. Ramesh Exports
Private Limited1 and A.B.C. Laminart Pvt. Ltd. & Anr. v. A.P. Agencies,
Salem2. E

9. Learned counsel for the respondents drew our attention to Order
VII Rule 1. He points out that the cause of action in both the suits are
different. He also drew our attention to Article 109 of the Limitation
Act, 1963, which reads as follows:
F
109.
By a Hindu governed by Twelve years When the alienee takes
Mitakshara law to set aside possession of the property.
his father’s alienation of
ancestral property.
G
10. He would contend that the period of limitation as far as the
second sale deed is different from the period of limitation as far as the
first sale deed is concerned. The period of limitation as far as the second
1
(2014) 6 SCC 424
2
(1989) 2 SCC 163 H
926 SUPREME COURT REPORTS [2019] 7 S.C.R.

A alienation is concerned will expire only on the expiry of 12 years from
the date of taking of possession by the alienee. He further relied on the
judgment of this Court in Alka Gupta v. Narender Gupta3.
11. The first question, which we are called upon to decide, is
whether the High Court was right in holding that the bar, under Order II
B Rule 2, will not apply in the facts of this case.
12. Before, we advert to the decisions on the point it would be
profitable to refer to the pleadings in two suits.
13. In Civil Suit No. 131 of 1963, we notice the following pleadings.
The respondents (plaintiffs) are Hindus governed by Mitakshara School
C of Law as administered by Benaras School. Tikaram’s father died when
Tikaram was a minor. During the minority of Tikaram, the property was
managed by his mother. On becoming major, Tikaram fell into bad and
immoral habits and grew into a drunkard. He was also addicted to other
vices. He indulged in wasteful habits and therefore sold his joint family
D ancestral property for immoral purposes and in a manner prejudicial to
the interest of the joint family. On the intervention of relations, a partition
was entered into on 11.01.1957, which was duly registered.
14. At the time of partition, plaintiff No.2 though begotten was
born afterwards on 02.06.1957 and as such he could not and was not
E made a party to the above partition. Plaintiff No. 3 was born on
26.08.1959 and therefore he had interest in the suit property. At the
time of partition, in Khasra No. 189 an area of 8.22 acres was not included
in the share of either deceased Tikaram or plaintiff No.1 but was kept
joint thereafter. We may notice the following:

F “(g) That in or about the month of September, 1958, plaintiffs
knew that Tikaram wanted to sale their lands and hence they
published a general prohibitory notice in the issue dated 14th
September, 1958 of the Hindu Daily “NAVBHARAT” which has
wide circulation at Gondia and the surrounding area warning public
in general not to accept any transfer of land from deceased
G Tikaram. That subsequently the plaintiffs learnt that the defendants
intended to enter into a contract of sale with deceased Tikaram in
respect of the suit land and hence they served the defendants
with a written notice dated 4.1.1959 asking them to desist from
purchasing land mentioned in para 1(e) above.
H 3
(2010) 10 SCC 141
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 927
[K. M. JOSEPH, J.]

3. That, however, despite warning and notices the defendants A
purchased a portion of Kh.No. 189 admeasuring 3.20 acres, as
particularly described in the plaintiff map by letters Pa, Pha, Ba,
Bha, Ma and in red colour, for the alleged consideration of
Rs.8,000/- vide registered sale deed dated 21.1.1959.”
15. It is the further case that the property was the ancestral joint B
family property and the alienation was not one for necessity or for
conferring benefits upon the estate or for payment of antecedent debt.
It is liable to be set aside. Plaintiff Nos. 1 to 3 have interest in the land
by birth and plaintiff No. 4 (the widow of Tikaram) had a share with
them. The payment of consideration is fictitious and it never passed.
Being without consideration, the alienations were not valid and not binding C
on the plaintiffs and thus liable to be set aside for this reason. Thereafter,
there were certain further allegations with which we are not concerned.
16. The reliefs sought by the plaintiffs in the plaint were to declare
the sale deed as not binding on the interest of plaintiff No. 4 and for
delivery of possession to her or in the alternative a decree for setting D
aside the sale deed dated 21.01.1959 and for delivery of possession to
the plaintiff, enquiry as to mesne profits and for mandatory injunction to
demolish certain constructions.
17. Let us now look at the pleadings in the second suit viz. Civil
Suit No. 34 of 1971. E

18. Herein also, the plaintiffs and the defendants are the same. It
is stated inter alia as follows:
The Bhumidhari land Kh. No. 189 area 8.22 acres situated in
village Gondia is the ancestral property of plaintiff Nos. 1, 2 and 3. Plaintiff F
No. 4 is the mother of plaintiff Nos. 1 to 3. The plaintiffs are Hindu and
are governed by Mitakshara Law as administered by Benaras School.
The same allegations were raised about Tikaram having fallen into immoral
habits and growing into an incorrigible drunkard and selling joint family
ancestral lands for immoral purposes. It also referred to partition dated
11.01.1957. There were also allegations relating to Kh. No. 189 wherein G
8.22 acres of land was not included either in the share of deceased
Tikaram or plaintiff No.1 but was kept joint. It is relevant to extract
para 3 of the second plaint which is to the following effect:-
“That, however, despite warning and notices the defendants
purchased a portion of Kh. NO. 189 from the deceased father of H
928 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the plaintiffs admeasuring 3.20 acres vide sale deed dated
21.01.1959. The plaintiffs have filed C.S. No. 131 of 1963 against
the defendants for setting aside the said sale. The suit having
been dismissed by the trial court the plaintiffs have filed Civil
Appeal No. 22/69 against the said judgment and decree which is
now pending in the Court of the Assistant Judge, at Bhandara
B
4(a). That Tikaram the deceased father of the plaintiffs again on
11.02.1959 sold an area of 4.82 acres out of suit Kh. No. 189 to
the plaintiffs under the same circumstances stated above and as
described in the plaintiff map by letters Ka, Kha, Ga, Gha, Cha,
Chha, Ja, Ta, Tha, Da, Na and Pa and in red colour, for the alleged
C consideration of Rs.4000/- vide registered sale deed dated
11.2.1959 and the same is sought to be set aside in this suit.”
19. It is further stated that the land is to be treated as an ancestral
joint family property and the alienation being not one for necessity or for
conferring benefits upon the estate or for payment of antecedent debt
D and it is liable to be set aside.
20. Having referred to the pleadings, let us examine what the
High Court has held. The High Court holds that all successive claims,
arising under the same obligation, shall be deemed to constitute one cause
of action. It further finds that the crux of the matter is, there are two
E alienations of separate areas of the land on different dates, and although
they are in favour of the same parties, it would give rise to more than
one cause of action. It was further found that by restricting to first suit
to the first alienation, it could not be found that plaintiff has split-up the
claims or split-up the remedies. The execution of the second sale deed
in favour of the same party gives rise to distinctive and separate cause
F of action. The High Court further proceeds to refer to the illustrations in
Order II Rule 2 CPC, which reads as follows:
“A lets a house to B at a yearly rent of 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
G sue B for the rent due for 1905 or 1907”.
21. Thereafter, the High Court proceeds to take a case where A
owns two houses and he let them to B. A suit is filed in respect of
arrears of rent in respect of one house, though arrears were there in
respect of the other house also. The High Court takes the view that it is
H
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 929
[K. M. JOSEPH, J.]

the choice of the plaintiff either to unite or not to unite both the causes of A
action and the second suit would not be barred.
22. In the case of Mohammad Khalil Khan v. Mehbub Ali Mian4,
the earlier suit related to the property at Oudh. The parties belonged to
the Sunni sect and the properties belonged to one Rani Barkatunnissa
who owned properties at Shahjahanpur and Oudh. The first suit did not B
include the property at Shahjahanpur. The Court proceeded to uphold
the views taken by the Courts in India and maintained the finding that
second suit, in relation to the property at Shahjahanpur, was barred by
virtue of Order II Rule 2. It would be profitable to refer to paragraphs
45 and 46 as they throw light upon what constitutes cause of action:
C
“45. Shortly stated O.2, R.2, Civil P.C., enacts that if a plaintiff
fails to sue for the whole of the claim which he is entitled to make
in respect of a cause of action in the first suit, then he is precluded
from suing in a second suit in respect of the portion so omitted. As
pointed out in Moonshee Buzloor Ruheem v. Shumsunnissa
Begum, (1867) 11 M.I.A. 551. D

The correct test in all cases of this kind is, whether the claim in
the new suit is, in fact, founded on a cause of action distinct from
that which was the foundation of the former suit….
The object of the rule is clearly to avoid splitting up of claims E
and to prevent multiplicity of suits”.
46. “every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment of
the Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary F
to be proved.”
I agree with the definition given by the Master of Rolls of a
cause of action, and that it includes every fact which it would be
necessary to prove, if traversed, in order to enable a plaintiff to
maintain his action.
G
Now the cause of action has no relation whatever to the defence
which may be set up by the defendant, nor does it depend upon
the character of the relief prayed for by the plaintiff. It refers
entirely to the grounds set out in the plaint as the cause of action,
4
AIR (36) 1949 Privy Council 78 H
930 SUPREME COURT REPORTS [2019] 7 S.C.R.

A or, in other words, to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour.”
23. The Privy Council proceeded to summarize the principles in
paragraph 61, which reads as follows:
“61. The principles laid down in the cases thus far discussed
B may be thus summarized:
(1) The correct test in cases falling under O.2 R.2, is “whether
the claim in the new suit is in fact founded upon a cause of action
distinct from that which was the foundation for the former suit.

C (2) The cause of action means every fact which will be necessary
for the plaintiff to prove if traversed in order to support his right to
the judgment.
(3) If the evidence to support the two claims is different, then the
causes of action are also different.
D (4) The causes of action in the two suits may be considered to be
the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence
that may be set up by the defendant nor does it depend upon the
character of the relief prayed for by the plaintiff. It refers….. to
E the media upon which the plaintiff asks the Court to arrive at a
conclusion in his favour.”
24. Still further, in paragraph 63, the Court has proceeded to
conclude as follows:
“63. The plaintiffs’ cause of action to recover the properties
F consists of those facts which would entitle them to establish their
title to the properties. These facts are the same with respect to
both properties, these being, that Rani Barkatunnissa was the
owner of the properties; that she died on 13th February, 1927, that
she was a Sunni by faith and that they are her heirs under the
G Muhammadan law.
Having regard to the conduct of the parties their Lordships
take the view that the course of dealing by the parties in respect
of both properties was the same and the denial of the plaintiffs’
title to the Oudh property and the possession of the Shahjahanpur
H
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 931
[K. M. JOSEPH, J.]

property by the defendants obtained as a result of that denial A
formed part of the same transaction. On this question, the learned
Judges of the High court have expressed their opinion in two places
in their judgment as follows:
“In the case before us the trespass on title or slander of title in
the case so far as the Oudh suit was concerned was not distinct B
and different either in point of time or in point of character from
the trespass on possession in the case of the Shahjahanpur
property…”
Again, it is stated as follows:
“Here in the present case we find that the two trespasses, one on C
the Shahjahanpur property and the other on the Oudh property
were similar in character and formed part of the same transaction
and the evidence to prove the facts which it was necessary for
the plaintiffs to prove… was the same and the bundle of essential
facts was also the same.” D
25. At this juncture, we may advert to Order II Rule 2, which
reads as follows:
“2. Suit to include the whole claim
(1) Every suit shall include the whole of the claim which the
E
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
F
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 G
afterwards sue for any relief so omitted.”
26. 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
H
932 SUPREME COURT REPORTS [2019] 7 S.C.R.

A claim. Order II Rule 2 provides for the consequences of relinquishment
of a part of a claim and also the consequences of omitting a part of the
claim. It declares that if a plaintiff omits to sue or relinquishes intentionally
any portion of his claim, he shall be barred from suing on that portion so
omitted or relinquished. Order II Rule 2(3), however, deals with the
effect of omission to sue for all or any of the reliefs in respect of the
B
same cause of action. The consequences of such omission will be to
preclude plaintiff from suing for any relief which is so omitted. The only
exception is when he obtains leave of the Court. In a recent judgment of
this Court, the distinction between Order II Rule 2(1) and Order II Rule
2(3) has been succinctly brought out in Virgo Industries (Eng.) (P) Ltd.
C v. Venturetech Solutions (P) Ltd.5,. This Court, inter alia, has held as
follows:
“Order 2 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
D relinquish any part of his claim if he chooses to do so. Order 2
Rule 2 CPC 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 2 Rule 2 makes
it clear that he shall not, afterwards, sue for the part or portion of
the claim that has been omitted or relinquished. Leave of the Court
E is contemplated by Order 2 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 to claim the
relief earlier omitted except in a situation where leave of the court
F had been obtained. It is clear from a conjoint reading of the
provisions of Order 2 Rules 2(2) and (3)that the aforesaid two
sub-rules of Order 2 Rule 2 contemplate two different 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
G 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 the
particular relief he had obtained leave of the court in the first suit.

5
H (2013) 1 SCC 625
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 933
[K. M. JOSEPH, J.]

The object behind the enactment of Order 2 Rules 2(2) and A
(3) 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 good reason. A later suit for such relief is contemplated only
B
with the leave of the court which leave, naturally, will be granted
upon due satisfaction and for good and sufficient reasons.”
27. Thus, 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. However, if different C
reliefs could be sought for in one suit arising out of a cause of action, if
leave is obtained from the Court, then a second suit, for a different relief
than one claimed in the earlier suit, can be prayed for. There are three
expressions which are found in Order II Rule 2. Firstly, there is reference
to the word “cause of action”, secondly the word “claim is alluded to” D
and finally reference is made to “relief”.
28. The defence, which is set up by the defendants, would be
irrelevant to determine what cause of action means. The reliefs, which
are sought by the plaintiffs, will not be determinative of what constitutes
cause of action. Cause of action, as explained by the Privy Council in E
Mohammad Khalil Khan case (supra), means the Media through which
the plaintiff seeks to persuade the Court to grant him relief. It could,
therefore, be said to be the factual and legal basis or premise upon which
the Court is invited by the plaintiff to decide the case in his favour. It is
also clear that the cause of action, in both the suits, must be identical. In
order that it be identical, what matters, is the substance of the matter. F

29. In Coffee Board case (supra), the respondent purchased coffee
at the export auctions and exported them to certain countries. He filed
two suits. The Coffee Board had provided for stamps system for exporting
of coffee. Complaint of the plaintiff was that the defendants failed to
supply the stamps but there was delay and it resulted in losses. This is G
what the Court held:
“12. The courts in order to determine whether a suit is barred
by Order 2 Rule 2 must examine the cause of action pleaded by
the plaintiff in his plaints filed in the relevant suits (see S. Nazeer
H
934 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Ahmed v. State Bank of Mysore; 2007 (11)| SCC 75). Considering
the technicality of the plea of Order 2 Rule 2, both the plaints
must be read as a whole to identify the cause of action, which is
necessary to establish a claim or necessary for the plaintiff to
prove if traversed. Therefore, after identifying the cause of action
if it is found that the cause of action pleaded in both the suits is
B
identical and the relief claimed in the subsequent suit could have
been pleaded in the earlier suit, then the subsequent suit is barred
by Order 2 Rule 2.
xxx xxx xxx
C 16. In the plaint in OS No. 3150 of 1985 being the earlier suit,
it has been claimed by the respondent being the plaintiff therein
that the appellant being the defendants failed to supply ICO stamps
for 268.08 tonnes of coffee purchased by him for export between
11-8-1982 and 8-9-1982, in spite of its assurances leading to delay
in the shipment of the coffee resulting in losses to the plaintiff. On
D the basis of the same, the respondent claimed for the losses
suffered by him along with damages. The respondent further
averred that the cause of action for the suit arose on various
dates when the respondent purchased coffee from the appellant
in the auctions held by them on the assurance that the ICO stamps
E will be supplied by the appellant to them.
17. The cause of action in the above suit is the failure of ICO
to supply stamps to the respondent in spite of its assurances. The
respondent to ensure the success of his claim, was required to
prove that on account of the omission of the appellant i.e failure
F to provide ICO stamps for the coffee purchased by them, the
respondent suffered losses.”
30. The Court went on further hold that plaintiff could only succeed
only by proving failure by the appellant to provide stamps. The grounds
of difference in the suit were found to be as regards the amount of
G coffee and the date when the same was purchased.
31. The respondents sought support from the judgment in Alka
Gupta v. Narender Kumar Gupta6. The appellants and the respondents
entered into a partnership to run an institute at place “P” in New Delhi.
Thereafter, an agreement was entered into to sell the undivided half
6
H (2010) 10 SCC 141
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 935
[K. M. JOSEPH, J.]

share. The respondents paid only part of the sale consideration which A
led to the suit by the appellant for the balance amount. The suit was
decreed. Thereafter, the appellant filed subsequent suit for rendition of
accounts for the period from 05.04.2000, which was date on which the
partnership deed was executed till 31.07.2004. According to the appellant,
the partnership was one at will and was dissolved. This Court overturned
B
the view of the High Court that the suit was barred by Order II Rule 2
and by the principles of constructive res judicata. The Court followed
the judgment of this Court in Gurbux Singh v. Bhooralal7, and inter alia,
held as follows:
“A Division Bench upheld that decision on the grounds that the
suit was barred by Order 2 Rule 2 CPC and that the appellant had C
settled all her claims with the respondent under the bayana
agreement dated 29.06.2004. The present appeal was then filed
by special leave.
The cause of action for the first suit was non-payment of price
under the agreement of sale dated 29.06.2004, whereas the cause D
of action for the second suit was non-settling of accounts of a
dissolved partnership constituted under the deed dated 05.04.2000.
Merely because the agreement of sale related to an immovable
property at R and the business run therein under the name of
“Takshila Institute” and the second suit referred to a partnership E
in regard to business run at P also under the same name of Takshila
Institute, it could not be assumed that the two suits related to the
same cause of action so as to attract Order 2 Rule 2 CPC.”
32. As regards the plea of res judicata, here is what the
Court held as follows:- F
“Plea of res judicata is a restraint on the right of a plaintiff to
have an adjudication of his claim. The plea must be clearly
established, more particularly where the bar sought is on the basis
of constructive res judicata. The plaintiff who is sought to be
prevented by the bar of constructive res judicata should have notice G
about the plea and have an opportunity to put forth his contentions
against the same. In the present case, there was no plea of
constructive res judicata, nor had the appellant-plaintiff an
opportunity to meet the case based on such plea. Res judicata
7
AIR 1964 SC 1810 H
936 SUPREME COURT REPORTS [2019] 7 S.C.R.

A means “a thing adjudicated”, that is, an issue that is finally settled
by judicial decision. The principle of constructive res judicata
emerges from Explanation IV to Section 11 CPC when read with
Explanation III thereof both of which explain the concept of “matter
directly and substantially in issue”. In view thereof, even though a
particular ground of defence or attack was not actually taken in
B
the earlier suit, if it was capable of being taken in the second suit
in view of the principle of constructive res judicata. Constructive
res judicata deals with grounds of attack and defence which ought
to have been raised, but not raised, whereas Order 2 Rule 2 CPC
relates to reliefs which ought to have been claimed on the same
C cause of action but not claimed.”
33. In Union of India v. H.K. Dhruv8, the Court held, inter alia,
as follows:
“4. Having heard the learned Senior Counsel for the appellant
as also the respondent appearing in person, we are satisfied that
D no fault can be found with the view taken by the High Court. In
order to attract applicability of the bar enacted by Order 2 Rule 2
CPC, it is necessary that the cause of action on which the
subsequent claim is founded should have arisen to the claimant
when he sought for enforcement of the first claim before any
E court. On the facts found and as recorded in the judgment of the
High Court and with which we find no reason to differ, the second
demand raised by the respondent was not available to be made a
a part of the claim raised in the first application. The bar enacted
by Order 2 Rule 2 CPC is clearly not attracted.”

F (Emphasis supplied)
34. In S. Nazeer Ahmed v. State Bank of Mysore9, the appellant/
defendant borrowed some money from the plaintiff’s bank by
hypothecating and by mortgaging two items. The money suit filed by the
bank was decreed. The proceedings in execution was unsuccessful as
G the bus, which was hypothecated, could not be traced. The bank prayed
to proceed against the mortgaged property in execution. It was resisted
by the appellant by pointing out that there was no decree on the mortgage
and the bank could only attach the properties and could not sell it
8
(2005) 10 SCC 218
9
H (2007) 11 SCC 75
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 937
[K. M. JOSEPH, J.]

straightaway. The said objection was upheld. Thereupon, the bank A
instituted the second suit for enforcement of the equitable mortgage.
This Court proceeded to take a view that the cause of action in the
second suit was different. The Court also further drew support from
Order XXXIV Rule 14 and proceeded to hold as follows:
“14. Applying the test so laid down, it is not possible to come to B
the conclusion that the suit to enforce the equitable mortgage is
hit by Order 2 Rule 2 of the Code in view of the earlier suit for
recovery of the mid term loan, especially in the context of Order
34 Rule 14 of the Code. The two causes of action are different,
though they might have been parts of the same transaction. Even
otherwise, Order 34 Rule 14 read with Rule 15 removes the bar if C
any that may be attracted by virtue of Order 2 Rule 2 of the
Code. The decision of the Rangoon High Court in Pyu
Municipality Vs. U. Tun Nyein (AIR 1933 Rangoon 158) relied
on by learned counsel for the appellant does not enable him to
successfully canvass for the position that the present suit was D
barred by Order 2 Rule 2 of the Code, as the said decision itself
has pointed out the effect of Order 34 Rule 14 and in the light of
what we have stated above.”
35. Let us first consider the argument of the learned counsel for
the respondent that under Article 109 of the Limitation Act, the period of E
limitation commences from the date of possession obtained by alienee,
and therefore, the cause of action for the second suit, in respect of the
sale deed dated 11.02.2019, would be different from the earlier suit, as
in respect of the sale deed of an earlier date, it would have a different
period of limitation. We are of the view that, that the period of limitation
under Article 109 is different from the period of limitation in respect of F
the first sale deed, cannot operate so as to exclude the bar under Order
II Rule 2. The principle underlying Order II Rule 2 is that no man can be
vexed twice over the same cause of action. All claims and reliefs, which
arise from a cause of action, must be comprehended in one single suit.
Order II Rule 2 provides for the principle of repose. If this be the G
underlying object of Order II Rule 2, the fact that at the time when the
first suit was filed even though the second alienation could be challenged
and it stemmed from one single cause of action and not two different

H
938 SUPREME COURT REPORTS [2019] 7 S.C.R.

A causes of action, the mere fact that a different period of limitation is
provided, cannot stand in the way of the bar under Order II Rule 2.
36. Now, let us consider the further argument of the learned counsel
for the respondent based on Order VII Rule 1 CPC. Order VII Rule 1
provides for the particulars to be contained in a plaint. It, inter alia,
B provides that the facts constituting the cause of action and when it arose,
be pleaded. Apparently, the argument of the respondents is having regard
to Article 109 of the Limitation Act, the cause of action as provided in
Article 109, would commence from the date of the deed being 11.02.1959,
and therefore, it has a different period of limitation as already noted. It
indicates that cause of action, raised in the second suit, is not identical
C with a cause of action in the first suit. We are of the view that this
argument proceeds on a misapprehension as to what constitutes the
cause of action. Cause of action has been explained in many decisions.
It is the bundle of facts, which if traversed, must be proved. However,
as laid down by the Privy Council, it would be understood also to mean
D the media through which Court’s intervention is sought by the plaintiff.
37. What is the legal basis/factual matrix premised on which the
plaintiff seeks a decree?
38. In this case, we have noticed the pleadings. The case of the
plaintiffs appears to be that the property is ancestral property. Their late
E father Tikaram was given to wasteful ways and addicted to drink and
otherwise. He was given to selling properties. His well-wishers intervened
and partition ensued. However, 8.22 acres falling in Kh.No.189 was
kept out of the partition deed. He decided to sell 8.22 acres without
there being any legal necessity and without any benefit to the joint family.
F The first part of the transaction, which consisted of two parts, pertained
to sale deed dated 21.01.1959 and that was the subject matter of the
first suit. At the time of filing of the said first suit, late predecessor-in-
interest of the plaintiff, had also executed another sale deed which
constituted the remaining portion which consisted of the 8.22 acres as
already noticed. The suits contained virtually identical averments in regard
G to both the transactions. The first suit was filed in 1963 and the second
suit filed in the year 1971.
39. We are of the view that in such circumstances, this is a case
where the plaintiff ought to have included relief in the form of setting

H
PRAMOD KUMAR & ANR. v. ZALAK SINGH & ORS. 939
[K. M. JOSEPH, J.]

aside the second sale deed also. This is not a case where the second A
sale deed had not been executed when the plaintiff instituted the first
suit. We are not, for a moment, declaring the effect of the sale deed
having been executed subsequently to the institution of the suit as we do
not have to pronounce on the effect of such a sale. We are only emphasizing
that it was open to the respondent/plaintiff to seek relief in respect of the
B
second sale executed by their predecessor-in-interest and what is more
important in favour of the same parties (defendants) who are the
appellants before us.
40. The High Court has proceeded to reason based on Order II
Rule 3. It is open to the plaintiff to combine causes of action. Order II
Rule 3 reads as follows: C

“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 D
in which they are jointly interested against the same defendant or
the same defendants jointly may unite such causes 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 E
aggregate subject-matters at the date of instituting the suit.”
41. It is undoubtedly true that the law does not compel a litigant to
combine one or more causes of action in a suit. It is open to a plaintiff, if
he so wishes, however to combine more than one cause of action against
same parties in one suit. However, it is undoubtedly true that the embargo F
in Order II Rule 2 will arise only if the claim, which is omitted or
relinquished and the reliefs which are omitted and not claimed, arise
from one cause of action. If there is more than one cause of action,
Order II Rule 2 will not apply. It is undoubtedly also true that Order II
Rule 2 manifests a technical rule as it has the effect of posing an obstacle
in the path of a litigant ventilating his grievance in the Courts. But as G
already noted, there is an equally important principle that no person shall
be vexed twice on the same cause of action.

H
940 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 42. That on the same cause of action, the plaintiffs having omitted
to sue in respect of the sale deed in question, we would think that bar
under Order II Rule 2 would apply. In this view of the matter we do not
think it necessary to pronounce on the question relating to constructive
res judicata. In the light of this, we allow the appeal and set aside the
judgment of the High Court. Parties to bear their respective costs.
B

Nidhi Jain Appeal allowed.

C

D

E

F

G

H