Order 2 Flashcards
To be categorized
No one should be troubled more than once for the same cause of action - this is the underlying
principle of Order II Rule 2 of the Code of Civil Procedure.
The general rule is that a suit should include the whole of the claim which a plaintiff is entitled to
make in respect of a cause of action. This is embodied in Order II Rule 1.
However there is no such compulsion, and the plaintiff is at liberty to relinquish or omit any portion of such claim. But there is a consequence. The plaintiff will be barred from filing another suit for the portion of the claim which was relinquished or omitted. Order II Rule 2 speaks of thisbar.
The impact of the provision is succinctly explained in the illustration given to it in the Code itself :
“A lets a house to B at a yearly of rent 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 or 1907”
The object of O.2 R.2 of the Code is twofold:
First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action.
Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.
Identical cause of action in both suits
The keyword in the provision in “cause of action”, as the bar is applicable to claims arising out of
the same cause of action.
In a 1949 case dealt with by the Privy Council, two suits for recovery of possession were filed in
respect of two different properties. The second suit was held to be barred, as the first suit did
not include the claim over the second property.
The plaintiff argued that since the properties are different, the causes of action were also
different. This was rejected on the reasoning that the claim over both the properties were based
on the same set of facts. In other words, the plaintiff had to plead and prove the same set of
facts in both the suits to establish title over both the properties. Since the “bundle of essential
facts” to prove title in both the cases were the same, the claim over the second property was
held to be arising out of the same cause of action of the first suit ( See Mohammad Khalil Khan
v Mehbub Ali Mian AIR (36) 1949 PC 87)
The Privy Council in this case summarised the principles as follows :
(1) The correct test in cases falling under O.2 R.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.
