Bar to Further Suit

The Code's own illustration

Order II Rule 2 carries an illustration, and it is worth learning because it is the clearest statement of the rule anywhere.

A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of 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.

Three years of rent under one tenancy are successive claims under the same obligation, and the Explanation deems them one cause of action. Having sued on that cause of action for part, A has lost the rest.

The crucial difference between sub-rules (2) and (3)

This is the distinction that separates a good answer from an average one.

Sub-rule (2) is about the CLAIM, meaning the subject matter of what you are owed. Omit part of the claim and it is gone. There is no leave of the court available.

Sub-rule (3) is about the RELIEFS you ask for on the same cause of action. Omit a relief and it is gone unless you obtained the leave of the Court.

So the Code is stricter about splitting the claim than about omitting a relief, because a plaintiff may have a good reason to defer a relief, and the court can sanction it in advance. Nothing sanctions splitting the claim itself, except the express permission in Rule 2(1) to relinquish part in order to bring the suit within a court's pecuniary jurisdiction, and a plaintiff who does that has given the relinquished part up permanently.

The leading case, and it is about proof

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, decided on 22 April 1964.

Facts. The plaintiff sued for recovery of possession of property and for mesne profits, saying he was the absolute owner and the defendant was in wrongful possession. In his plaint he referred to an earlier suit brought by himself and his mother against the same defendant, in which mesne profits for the same property up to 10 February 1950 had been claimed and decreed. The defendant pleaded that the present suit was barred by Order II Rule 2, and the trial court dismissed the suit as barred.

Held. The plea failed, and the reason is entirely practical. A plea under Order II Rule 2 cannot be made out except on proof of the plaint in the previous suit which is said to create the bar. The defendant must file the pleadings of the earlier suit in evidence and thereby prove to the court that the cause of action in the two suits is the same.

Why it matters here. It converts a doctrine into a burden of proof, and puts that burden squarely on the defendant. Knowing that an earlier suit existed is not enough; even the plaintiff mentioning it in his own plaint was not enough. Without the earlier plaint in evidence the court cannot compare the two causes of action, and if it cannot compare them it cannot find the bar.

Note how closely this tracks the modern rule about res judicata, where the plea likewise has to be proved from the earlier record and cannot be decided on the plaint alone. Both bars are about comparing two proceedings, and you cannot compare what is not before the court.

Distinguish: Order II Rule 2 and Explanation IV to section 11

These two are confused constantly, because both punish a party for not raising something earlier.

The short version: Order II Rule 2 is about what you asked for; constructive res judicata is about what you argued. A plaintiff who sued for possession and forgot mesne profits meets Order II Rule 2. A defendant who had a good defence and kept it in his pocket meets Explanation IV.

A worked example

Sanjay lets a shop to Tanvi. Tanvi stops paying, and by January the rent for three years is outstanding and Sanjay also wants her out.

Sanjay sues only for one year's rent. On the Explanation to Order II Rule 2, successive claims under the same obligation are one cause of action, so the three years are one claim. Having sued for part, Rule 2(2) bars him from suing for the other two years. The Code's own illustration is this case.

Sanjay sues for all three years' rent but not for possession. Possession is a relief on the same cause of action. Rule 2(3) bars a later suit for it, unless he obtained the leave of the Court when he filed the first suit.

Sanjay's claim is worth more than the court's pecuniary limit. Rule 2(1) lets him relinquish part of the claim to bring the suit within jurisdiction. He may do that, but the relinquished portion is gone for good under Rule 2(2); it is a price, not a device.

Sanjay files the second suit anyway, and Tanvi pleads the bar. On Gurbux Singh, Tanvi must put the plaint in the earlier suit in evidence. If she merely asserts that an earlier suit existed, or relies on Sanjay having mentioned it, the plea fails for want of proof.

And a last turn. Suppose Tanvi wants to raise the bar by having the plaint rejected at the threshold. She cannot, for the same reason the same device fails for res judicata: the earlier plaint is not part of this plaint. See [Res Judicata] on Order VII Rule 11(d).

What it does not mean

It does not bar a suit on a different cause of action. The whole rule turns on the cause of action being the same.

It does not apply to the defendant. A defendant's failure to raise a defence is Explanation IV to section 11, not this rule.

Leave is not available for splitting the claim. Only for omitting a relief, under sub-rule (3).

Section 12 is not an independent bar. It only carries the bar created by the rules into every court to which the Code applies.

The bar is not established by assertion. On Gurbux Singh, the earlier plaint must be proved.

Quick revision

Section 12: a plaintiff precluded by the rules from a further suit on a cause of action cannot bring it in any court to which the Code applies.

Order II Rule 2(1): a suit must include the whole claim; part may be relinquished to fit the court's jurisdiction. Rule 2(2): what is omitted or relinquished cannot be sued for later. No leave available. Rule 2(3): omitting one of several reliefs on the same cause of action bars it later, unless the leave of the Court was obtained. Explanation: an obligation and its collateral security, and successive claims under the same obligation, are one cause of action.

The Code's illustration: three years' rent, sued for one, the other two are lost.

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810: the plea cannot be made out except on proof of the plaint in the previous suit, which the defendant must file in evidence.

Against Explanation IV to section 11: claims and reliefs, not grounds; cause of action, not matter in issue.

Test yourself

1. State Order II Rule 2 in two sentences. Every suit must include the whole of the claim the plaintiff is entitled to make on his cause of action, and a plaintiff who omits or relinquishes part of it cannot sue for that part afterwards. Where he is entitled to several reliefs on the same cause of action and omits one, he cannot sue for it later except with the leave of the Court.

2. Rent is due for 1905, 1906 and 1907 and the landlord sues only for 1906. Can he later sue for the rest? No. By the Explanation, successive claims arising under the same obligation are one cause of action, so the omitted years fall within Rule 2(2) and are barred. This is the Code's own illustration to the rule.

3. What is the difference between sub-rules (2) and (3)? Sub-rule (2) bars a claim or part of a claim that was omitted or relinquished, and no leave of the court is available. Sub-rule (3) bars a relief omitted on the same cause of action, but only where the plaintiff did not obtain the leave of the Court.

4. What must a defendant prove to succeed on a plea under Order II Rule 2? He must file the pleadings of the previous suit, in particular the earlier plaint, in evidence, so as to prove the identity of the cause of action in the two suits. On Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, the plea cannot be made out except on proof of that plaint.

5. How does Order II Rule 2 differ from constructive res judicata? Order II Rule 2 applies to a plaintiff and bars claims and reliefs omitted from the earlier plaint, turning on identity of the cause of action. Explanation IV to section 11 bars grounds of attack or defence which might and ought to have been raised, turning on the matter in issue, and it has no leave-of-the-court escape.

6. What does section 12 add? Nothing of its own. It provides that where a plaintiff is precluded by the rules from a further suit on a cause of action, he cannot institute such a suit in any court to which the Code applies, so the bar cannot be evaded by choosing a different court.