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TMI Blog2019 (11) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2), Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a Plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises - a Plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished. Paragraph 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26 October 1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the Defendant to perform the contract. Indeed, the Plaintiff also asserted that she was going to institute a suit for specific performance of the agreement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For Appellant: Shashibhushan P. Adgaonkar, Adv. For Respondents: Satyajit A. Desai, Anagha S. Desai and Shobhit Dwivedi, Advs. JUDGMENT Dr. D.Y. Chandrachud, J. 1. Leave granted. Civil Appeal No. 9065 of 2019 (@ SLP (C) No. 11811/2017) 2. This appeal arises from the judgment of a learned Single Judge dated 6 January, 2017 at the Nagpur Bench of the High Court of Judicature at Bombay in a Second Appeal. The High Court came to the conclusion that the suit for specific performance instituted by the Appellant was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 CPC since the Appellant had instituted an earlier suit for injunction. The courts below have noticed that while instituting the earlier suit, it was in the contemplation of the Appellant that a suit for specific performance of the agreement to sell would be instituted, in spite of which no leave of the Court was sought Under Order 2 Rule 2(3) of the Code of Civil Procedure. This appeal thus arises from the concurrent findings which have been recorded by the Trial Court, the First Appellate Court and by the High Court in Second Appeal holding the suit to be barred. 3. The facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of this land such as cultivation and all agricultural processes are being done by the Plaintiff. On the said farm the Plaintiff had spent a lot of amount for the agricultural activities. Thereafter several times the Plaintiff asked the Defendant to execute the sale deed of the said land in favour of the Plaintiff. The Plaintiff is ready to behave as per the bargain. The Plaintiff informed the Defendant that by paying the remaining amount of ₹ 30,000/- to the Defendant the Plaintiff is ready to get the sale deed of the said property; but the Defendant kept on prevaricating. Hence as decided earlier between the Plaintiff and on 11.10.96 the Defendant the Plaintiff asked by sending a notice to the Defendant to execute the sale deed of the said farm on 15.10.96. That registered notice was received by the Defendant on 11.10.96; but on 15.10.96 the Defendant did not remain present in the office of Sub-Registrar Nandura and did not register the said sale deed in favour of Plaintiff when the Plaintiff was present there with a cash of ₹ 30,000/- to be paid to the Defendant. Hence for getting the fulfilment of the agreement took place between Plaintiff and the Defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Civil Judge, Sr. Dn., Khamgaon. It appears that in view of no objection from the Plaintiff certified copy of the plaint in RCS No. 216/1997 came to marked Ex. 137. Therefore, now, Plaintiff cannot say that opportunity was not given to him to explain his pleadings in RCS No. 216/1997. The first appellate court noted that certified copy of the plaint in the earlier suit for injunction (Exhibit 94) was placed before the Trial Court and its production was allowed. It was held that in order to support the decree passed by the Trial Court it was not necessary for the Respondent in the appeal to file a memorandum of cross objections challenging a particular finding rendered by the Trial Court. Ultimately, it held that when the suit for injunction was instituted, it was open to the Plaintiff to incorporate the relief of specific performance together with the relief of permanent injunction. The foundation for the relief of permanent injunction claimed in the earlier suit furnished a complete cause of action to sue for the relief of specific performance. All the essential ingredients on the basis of which the subsequent suit was instituted existed on the date when the earlier su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that in view of no objection from the Plaintiff certified copy of the plaint in RCS No. 216/1997 came to marked Ex. 137. Therefore, now, Plaintiff cannot say that opportunity was not given to him to explain his pleadings in RCS No. 216/1997. The first appellate court noted that certified copy of the plaint in the earlier suit for injunction (Exhibit 94) was placed before the Trial Court and its production was allowed. It was held that in order to support the decree passed by the Trial Court it was not necessary for the Respondent in the appeal to file a memorandum of cross objections challenging a particular finding rendered by the Trial Court. Ultimately, it held that when the suit for injunction was instituted, it was open to the Plaintiff to incorporate the relief of specific performance together with the relief of permanent injunction. The foundation for the relief of permanent injunction claimed in the earlier suit furnished a complete cause of action to sue for the relief of specific performance. All the essential ingredients on the basis of which the subsequent suit was instituted existed on the date when the earlier suit had been filed. Since the Plaintiff omitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence it has been submitted that the bar Under Order 2 Rule 2 does not stand attracted. 8. On the other hand, supporting the view which weighed with the Trial Court, the appellate court and the High Court, it has been urged by Mr. Satyajit A Desai, that the plaint in the earlier suit contains a clear reference to the agreement to sell, to the payment of consideration and to the notice of performance that was issued by the Plaintiff. Not only this, para 2 of the plaint contained a specific recital of the fact that the Plaintiff intended to institute a suit for specific performance before the Court of the Civil Judge, Senior Division, Khamgaon. Despite this, it was submitted that the Plaintiff omitted to seek leave of the court Under Order 2 Rule 2(3). This, it was submitted, must necessarily result in the bar under the provision being attracted. Learned Counsel submitted that the distinction with the situation as it arose before the Constitution Bench in Gurbux Singh (supra) is that in the present case, the plaint in the earlier suit was duly marked as an Exhibit without any objection from the Plaintiff. Learned Counsel in that regard has also relied upon on the decisions of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Under Order 2 Rule 2(3). In the absence of leave being sought and granted, a Plaintiff who has omitted to sue for any of the reliefs to which they were entitled to sue in respect of the same cause of action would be barred from subsequently suing for the relief which has been omitted in the first instance. The grant of leave obviates the consequence Under Order 2 Rule 2(3). But equally, it is necessary to note that Order 2 Rule 2(2) does not postulate the grant of leave. In other words, a Plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished. 11. The rationale underlying in Order 2 Rule 2 has been dealt with in several judgments including in the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian (1947-48) 75 IA 121, the Privy Council held: (1) The correct test in cases falling Under Order 2 Rule 2, is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (2) The cause of action means every fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1996 to which the Defendant had replied on 13 October 1996. The cause of action for the suit for specific performance had arisen when the Plaintiff had notice of the denial by the Defendant to perform the contract. On 30 October 1996 when the suit for injunction was instituted, the Plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which paragraph 2 of the plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the Plaintiff omitted to sue for specific performance. This is a relief for which the Plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar Under Order 2 Rule 2(3) would stand attracted. 13. But the case of the Plaintiff in appeal is that in order that the bar Under Order 2 Rule 2 be attracted, it is necessary that the plaint in the earlier suit must be proved in evidence. In the present case it was submitted that this was not done. The basis of above submission is the judgment of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plait could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar Under Order 2 Rule 2, Code of Civil Procedure can be established only if the Defendant files in evidence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings in the earlier suit. The finding that there was no prejudice to the Plaintiff cannot be faulted. The parties were all along aware of the pleadings, the nature of the objection to the maintainability of the subsequent suit on the ground of the bar Under Order 2 Rule 2 and the fact that the plaint in the earlier suit was brought on the record. Indeed, it was at the behest of the Plaintiff that a certified copy of the plaint in the earlier suit was allowed to be brought on the record and marked as Exhibit 137. In the circumstances, we are of the view that the bar Under Order 2 Rule 2 is attracted. The Plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the Plaintiff that it was in pursuance of the agreement to sell dated 26 October 1995 that he had been placed in possession of the property. Yet, without seeking the leave of the Court, the Plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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