2019 (5) TMI 1866 - SC - Indian Laws

Maintainability of suit - Principles of constructive res judicata - suit barred by Order II Rule 2 of the Code of Civil Procedure, 1908 - 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 - HELD THAT - 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 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 of action. The High Court further proceeds to refer to the illustrations in Order II Rule 2 Code of Civil Procedure - 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 the choice of the Plaintiff either to unite or not to unite both the causes of action and the second suit would not be barred. 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 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 - 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. 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 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. 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 - Appeal allowed.

Summary

Issues Involved:
1. Applicability of Order II Rule 2 of the Code of Civil Procedure, 1908.
2. Constructive res judicata.

Detailed Analysis:

1. Applicability of Order II Rule 2 of the Code of Civil Procedure, 1908:
The primary issue was whether the second suit filed by the Respondents was barred under Order II Rule 2 of the CPC. The High Court had held that Order II Rule 2 was not a bar, reasoning that the two alienations by Tikaram gave rise to two separate causes of action. The Supreme Court, however, disagreed with this conclusion.

The Court emphasized that the cause of action, in both suits, must be identical for Order II Rule 2 to apply. The Court referred to the pleadings in both suits, noting that the Respondents' claims were based on the same factual matrix: the ancestral nature of the property, Tikaram's wasteful habits, and the lack of necessity for the sales. The first suit challenged the sale deed dated 21.01.1959, while the second suit challenged the sale deed dated 11.02.1959. Both sales were part of a single transaction involving the same property and the same parties.

The Court cited precedents, including the case of Mohammad Khalil Khan v. Mehbub Ali Mian, to explain that the cause of action includes every fact necessary to be proved to support the Plaintiff's right to judgment. Since the cause of action in both suits was identical, the Respondents were required to include the challenge to the second sale deed in the first suit. The omission to do so barred the second suit under Order II Rule 2.

2. Constructive Res Judicata:
The second issue was whether the principle of constructive res judicata applied. The High Court had found that constructive res judicata did not apply, as the two alienations gave rise to separate causes of action. However, the Supreme Court did not find it necessary to pronounce on this issue, given its conclusion on the applicability of Order II Rule 2.

The principle of constructive res judicata, as explained by the Court, prevents a party from raising issues in a subsequent suit that could have been raised in an earlier suit. The Court referred to the case of Alka Gupta v. Narender Kumar Gupta, which distinguished between causes of action and grounds of attack or defense that could have been raised but were not.

Conclusion:
The Supreme Court concluded that the second suit was barred under Order II Rule 2, as the cause of action in both suits was identical. The Respondents should have included the challenge to the second sale deed in the first suit. Consequently, the judgment of the High Court was set aside, and the appeal was allowed. The Court did not find it necessary to address the issue of constructive res judicata.