PRAMOD KUMAR & ANR. versus ZALAK SINGH & ORS.

Citation: [2019] 7 S.C.R. 919 · Decided: 10-05-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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919
PRAMOD KUMAR & ANR.
v.
ZALAK SINGH & ORS.
(Civil Appeal Nos. 1055 of 2019)
MAY 10, 2019
[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
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
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
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
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
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
   [2019] 7 S.C.R. 919
919
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
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
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
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
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
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,
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,
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 

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