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TMI Blog2018 (4) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Order 2 Rule 2 of the Code. 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 - 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. Whether Sucha Singh (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? - Held that: - the original plaintiff (Sucha Singh), in clear terms, had stated in the previous suit that he wants to withdraw the suit because he wants to file appropriate proceedings before the competent forum in relation to the subject matter of the suit. The Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cheque. 7) It was further averred that Sucha Singh was placed in possession of the suit premises in February, 1996. It was alleged that in May, 1996 respondent No.1 demanded more money from Sucha Singh pursuant to which Sucha Singh further paid ₹ 36,000/- in cash to respondent No.1. 8) It was alleged that on 10.10.1996, respondent No.1 threatened to dispossess Sucha Singh from the suit premises and made unsuccessful attempt to dispossess him with the help of henchmen (Para 13 of the plaint). 9) It is on this cause of action, Sucha Singh filed a civil suit for permanent injunction on 11.10.1996 against respondent No.1 in relation to the suit premises restraining him from interfering with his possession over the suit premises. 10) Respondent No.1 filed the written statement, inter alia, alleging therein that he has already transferred the suit premises to respondent No.2 herein and, therefore, the remedy of plaintiff-Sucha Singh, if any, would be to file a civil suit for specific performance of the agreement against respondent No.1 but not in prosecuting the suit for permanent injunction. 11) On 27.11.1998, Sucha Singh (plaintiff) made a statement in the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. It was contended that non-claiming of relief of specific performance of the agreement in the previously instituted suit though available to the plaintiff for being claimed on the cause of action pleaded in the previous suit would attract the bar contained in Order 2 Rule 2 of the Code to the subsequently instituted civil suit wherein a relief of specific performance of agreement is claimed and, therefore, such suit cannot be now tried on merits. 17) During the pendency of the suit, Sucha Singh died on 04.08.2000 and his legal representatives (appellants herein) were brought on record as plaintiffs to continue the lis . The appellants (plaintiffs) opposed the application filed by defendant No.2 (respondent No.2 herein) and contended that the suit for specific performance of agreement is maintainable and not barred by Order 2 Rule 2 of the Code. 18) The Trial Court, however, by order dated 08.05.2012 allowed respondent No.2's application and, in consequence, dismissed the appellants suit holding that it is barred by the provisions of Order 2 Rule 2 of the Code. In other words, the Trial Court held that the plaintiffs ought to have claimed the relief of specific per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted or relinquished. 24) 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. 25) 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. In other words, if on the basis of cause of action pleaded by the plaintiff in the plaint, he is entitled to claim two reliefs, namely, A and B against the defendant(s), then he is under an obligation to claim both A and B reliefs together in the suit. 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. 26) Order 2 Rule 2(2) of the Code, however, provides that where a plaintiff omits to sue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1 (c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (See Part VII Articles 85, 86 and 87 of the Limitation Act). 34) On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date (See Part II Article 54 of the Limitation Act). 35) Third, when both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2 Rule 2 CPC has been applied. The provisions of Order 2 Rule 2 CPC bar the remedy of the plaintiff-appellant and, therefore, must be strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the court on that very date. The plaintiff-appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn in view of the statement of the plaintiff . A conjoint reading of the order of the court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit, obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellate court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15-6-1994. That finding of the first a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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