SUCHA SINGH SODHI (D) THR. LRS. versus BALDEV RAJ WALIA & ANR.

Citation: [2018] 3 S.C.R. 324 · Decided: 13-04-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
324
SUPREME COURT REPORTS
[2018]  3 S.C.R.
SUCHA SINGH SODHI (D) THR. LRS.
v.
BALDEV RAJ WALIA & ANR.
(Civil Appeal No. 3777 of 2018)
APRIL 13, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code of Civil Procedure, 1908: O.II, r.2 – Suit to include the
whole claim – On facts, first suit seeking injunction by original
plaintiff against respondent no 1 withdrawn with the leave of the
court – Later suit for specific performance filed by the original
plaintiff – Respondent objected to the same, invoking O.II, r.2 that
relief of specific performance ought to have been claimed along
with relief of injunction in earlier suit which was withdrawn – Both
the trial court and High Court dismissed the suit as being barred u/
O.II, r. 2 – On appeal, held: Trial court and the High Court erred in
allowing the application filed by respondent No.2 u/O.VII, r. 11
and thereby erred in dismissing the suit as being barred by the
provisions of O.II, r. 2 – Provisions of O.II, r. 2 not attracted to the
facts of the instant case and, thus, the suit should not have been
dismissed as being barred u/O.II, r. 2 – Plaintiff could not claim the
relief of specific performance of agreement against the respondents
along with the relief of permanent injunction in the previous suit –
Further, the court was entitled to take into consideration the
statement made by the original plaintiff for withdrawing the suit
and filing it afresh and his statement could be made a part of the
order for granting permission to withdraw the civil suit and file a
fresh suit – Thus, the order passed by the High Court set aside.
Allowing the appeal, the Court
HELD: 1.1 The trial court and the High Court erred in
allowing the application filed by respondent No.2 under Order 7
Rule 11 of the Code of Civil Procedure, 1908 and thereby erred
in dismissing the suit as being barred by the provisions of Order
2 Rule 2 by taking recourse to the provisions of Order 7 Rule 11
of the Code. The provisions of Order 2 Rule 2 of the Code are
not attracted to the facts of the case and, therefore, civil suit
[2018] 3  S.C.R. 324
                                              324
A
B
C
D
E
F
G
H
325
should not have been dismissed as being barred under Order 2
Rule 2 of the Code. [Para 22] [331-C-D]
1.2 Order 2 Rule 2(1) of the Code provides that every suit
shall include the whole of the claim, which the plaintiff is entitled
to make in respect of the cause of action. Liberty is, however,
granted to the plaintiff to relinquish any portion of his claim with
a view to bring the suit within the jurisdiction of any Court. It is
clear from the reading of Order 2 Rule (1) of the Code that
whenever the plaintiff files a suit on the basis of a cause of action
pleaded in the plaint, he is under a legal obligation to include and
claim all the reliefs against the defendant, which have accrued to
him on the cause of action pleaded by him in his plaint. Order 2
Rule 2(1) of the Code enables the plaintiff to relinquish any portion
of his relief with a view to bring the suit within the jurisdiction of
any Court. Order 2 Rule 2(2) of the Code, however, provides
that where a plaintiff omits to sue or intentionally relinquishes,
any portion of his claim/relief in his suit, then in such event, he
shall not be allowed afterwards to sue in respect of the claim/
relief so omitted or/and relinquished by him in his suit. In other
words Rule 2(2) does not permit the plaintiff to file second suit to
claim the omitted or/and relinquished relief. [Paras 24-26] [331-
F-H; 332-A-C]
1.3 The sine qua non for invoking Order 2 Rule 2(2) against
the plaintiff by the defendant is that the relief which the plaintiff
has claimed in the second suit was also available to the plaintiff
for being claimed in the previous suit on the causes of action
pleaded in the previous suit against the defendant and yet not
claimed by the plaintiff. [Para 28] [332-D]
1.4 The original plaintiff could claim the relief of specific
performance of agreement against the respondents/defendants
in addition to his claim of permanent injunction in the previously
instituted suit. The plaintiff could not claim the relief of specific
performance of agreement against the defendants along with the
relief of permanent injunction in the previous suit for the following
reasons. First, the cause of action to claim a relief of permanent
injunction and the cause of action to claim a relief of specific
performance of agreement are independent and one c

Excerpt shown. Read the full judgment & AI analysis in Lexace.