Whether bar under Order 2 Rule 2 CPC applies to an existing suit also or to a subsequent suit only?
Order II rule 2 of the Code of Civil Procedure 1908 makes it obligatory for a plaintiff to claim all the relief in the suit with regard to same cause of action. If plaintiff omits or relinquishes his claim, without the leave of the court, then plaintiff is barred from making such claim in future by separate suit.
To make it understand better it’s worthwhile to go through the provision.
Order II rule 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 case 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 claim, he shall not afterwards sue in respect of the portion so omitted relinquished.
- (3) Omission to sue for one of the several reliefs.- A person entitled to more than one relief in respect of the same case 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.
Explanation. – For the purpose 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.
This provision can be understood better by the illustration provided along with it which says:-
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 sue B for the rent due for 1905 and 1907.
Thus, it is clear that if plaintiff does not claim one relief with regard to same cause of action either by his omission or by relinquishing his claim then he cannot sue for the claim relinquished or omitted in a “subsequent suit”.
From perusal of the provision it seems that bar of order 2 rule 2 is applicable only to subsequent suit, however, the said bar is also applicable in the same suit also if plaintiff tries to include the omitted or relinquished claim by bringing an amendment in the suit.
This was held by the Hon’ble supreme court of India in “Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Ors.” AIR 2011 SC 41
- This Court is, therefore, of the opinion that the appellant had the cause of action to sue for Specific Performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of Specific Performance in the suit which it filed when it had cause of action to sue for Specific Performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code.
- Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case.