Tarlok Singh Chauhan, J. - The plaintiff has filed the instant suit for recovery of Rs. 63,58,827/- along with future interest at the rate of 18% per annum from the date of institution of the suit till payment thereof.
2. It is not in dispute that before filing this suit, the plaintiff had already instituted a suit in the Court of Civil Judge (Senior Division), Kangra, H.P.
3. This Court on 25.9.2014 framed the following issues:
1. Whether the plaintiff is entitled to a decree of Rs. 63,58,827/- along with interest @18% per annum against the defendant? OPP
2. Whether the suit is not maintainable in its present form? OPD
3. Whether the suit is not maintainable in view of Order 2, Rule 2 of the Code of Civil Procedure, if so, its effect? OPD
4. Whether the plaintiff has no enforceable cause of action to file and maintain the present suit, if so, its effect? OPD
5. Whether the plaintiff is estopped to file and maintain the present suit on account of his act, deeds, conduct and acquiescence, if so, its effect? OPD
6. Relief.
4. Issue No. 3 was treated as preliminary issue. The defendant on 4.12.2014 tendered documents Ex. D-1 to D-4 and closed her evidence and thereafter from one reason or the other, the plaintiff did not lead his evidence and it is eventually on 15.7.2016 that the statement of one witness was recorded and thereafter the plaintiff closed his evidence. I have heard learned counsel for the parties and have gone through the records of the case carefully.
Issue No. 3.
5. Before going into the factual aspects, it would be necessary to advert to the legal position.
6. In Gurubux Singh v. Bhooralal, 1964 AIR (SC) 1810, the Hon''ble Supreme Court held as under:
"6. In order that a plea of a bar under Order 2, Rule 2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in 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 plaint 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 , Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits."
7. In Sidramappa v. Rajashetty and others 1970 AIR (SC), 1059, the Hon''ble Supreme Court held as under:
"7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiff''s title to the lands mentioned in Schedule I of the plaint. The requirement of Order 2, Rule 2 , Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. - ''Cause of action'' means the ''cause of action for which the suit was brought''. It cannot be Said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause, , of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings see Mohd. Hafiz v. Mohd. Zakaria, 1922, AIR (PC) 23.."
8. In Kewal Singh v. Mt. Lajwanti, 1980 AIR (SC) 161, the Hon''ble Supreme Court held as under:
"5. A perusal of Order 2, Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff basis his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so relinquished."
9. In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. 1997 AIR (SC) 1398, the Hon''ble Supreme Court held as under:
"8. As seen earlier, Order 2, Rule 2 sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2, Rule 2 sub-rule (3) will not get attracted.
20. In cases of continuous causes of action or recurring causes of action bar of Order 2, Rule 2 sub-rule (3) cannot be invoked. In this connection it is profitable to have a lock at Section 22 of the Limitation Act, 1963. It lays down that Rs. in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the beach or the tort, as the case may be, continues''."
10. In Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 2004 AIR (SC) 1761, the Hon''ble Supreme Court held as under:-
"10. Order 2, Rule 2 , sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order 2 sub-rule (3). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provision as highlighted in Gurbux Singh''s case (supra) by the Constitution Bench and in Bengal Waterproof Limited (supra). The salutary principle behind Order 2, Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court."
11. In N.V. Srinivasa Murthy and others v. Mariyamma (dead) by Proposed LRs and Others, 2005 AIR (SC) 2897, the Hon''ble Supreme Court held as under:
"13. In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted original suit No. 557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original civil suit No. 557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure."
12. In Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, the Hon''ble Supreme Court held as under:
"18. Further, while considering whether a second suit by a party is barred by Order 2, Rule 2 of the Code, all that is required to be seen is whether the reliefs claimed in both suits arose from the same cause of action. The court is not expected to go into the merits of the claim and decide the validity of the second claim. The strength of the second case and the conduct of plaintiff are not relevant for deciding whether the second suit is barred by Order 2, Rule 2 of the Code."
13. In Inbasagaran and another v. S. Natarajan (dead) through Legal Representatives (2014) 11 SCC 12, the Hon''ble Supreme Court held as under:
"20. Indisputably, cause of action consists of a bundle of facts which will be necessary for the plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2, Rule 2 CPC will not apply."
14. In Rathnavathi and another v. Kavita Ganashamdas, (2015) 5 SCC 223, the Hon''ble Supreme Court held as under:-
"26. One of the basic requirements for successfully invoking the plea of Order 2, Rule 2 of CPC is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the defendants (appellants herein) are not entitled to raise a plea of bar contained in Order 2, Rule 2 of CPC to successfully non suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants.
27. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order 2, Rule 2 could be allowed to be raised by the defendants and how it was sustainable on such facts.
28. We cannot accept the submission of learned senior counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order 2, Rule 2 of CPC.
29. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order 2, Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order 2, Rule 2 and not merely the pleadings. For these reasons, it was not necessary for plaintiff to obtain any leave from the court as provided in Order 2, Rule 2 of CPC for filing the second suit.
30. Since the plea of Order 2, Rule 2 , if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, reliefs claimed in both the suits and lastly the legal provisions applicable for grant of reliefs in both the suits."
15. From the aforesaid exposition of law, it can safely be concluded that the salutary principle behind Order 2, Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. One of the objects of Order 2, Rule 2 is to avoid multiplicity of proceedings.
16. Sub-rule (1) to Rule 2 deals with the frame of the suit and enables the plaintiff to abandon or relinquish a part of his claim before filing his plaint. The provisions of Order 2, Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, it cannot spilt up the claim so as to omit one part of the claim and sue for the other. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from doing so in any subsequent litigation that he may commerce if he has not obtained the prior permission of the Court.
17. To constitute a bar to fresh suit under Order 2, Rule 2 (3) CPC, three elements are required to be proved. Firstly, it must be established that the second suit was in respect of the same cause of action as that on which the previous suit was based; secondly, in respect of that cause of action the plaintiff is entitled to more than one relief and lastly, that being so, the plaintiff without leave obtained from the Court, omitted to sue for the relief for which the second suit has been filed.
18. 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."
19. "Cause of action" means the bundle of facts which the plaintiff must prove in order to succeed in his action. The cause of action for which the suit was brought means, the cause of action, which gives occasion for and forms the foundation of the suit. Generally stated, the cause of action means every fact which is necessary to establish to support a right or obtain judgment. Another shade of meaning is that a cause of action means every fact which will be necessary for the plaintiff to prove (if traversed). The cause of action for the purpose of this Rule means all the essential facts constituting the right of its infringement. In other words, the cause of action consists of all the facts which are essential for the plaintiff to allege and to establish, if denied or controverted, for instance, the bundle of facts which taken with the law applicable to them gives him a right of some relief against the defendant.
20. The burden is on the defendant to establish that the subsequent suit is founded on a cause of action which is identical with that of which the earlier suit was founded. If the cause of action which is identical with that of which the earlier suit was founded. If the cause of action and the relief claimed in the second suit are not the same as the cause of action and relief claimed in the first suit, the second suit is not barred. It is settled law that when the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter.
21. A plea of bar under Order 2, Rule 2 is a highly technical plea. It tends to defeat justice and to deprive the party of a legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. It has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. Since the plea of Order 2, Rule 2 , if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, reliefs claimed in both the suits and lastly the legal provisions applicable for grant of reliefs in both the suits.
22. Where the essential requirement for the applicability of Order 2, Rule 2 viz., the identity of the cause of action in the previous suit and subsequent suit is not established, the subsequent suit cannot be said to be barred by Order 2, Rule 2 CPC. Besides identity of cause of action, identity of the plaintiff also be looked into to invoke the bar under this Rule.
23. In case of continuous cause of action or recurring cause of action, bar under Order 2, Rule 2 (3) cannot be invoked.
24. If the cause enables a man to ask for a larger and wider relief than to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Where the cause of action for seeking a particular relief is not available to a plaintiff at the time of filing the earlier suit, the bar under Order 2, Rule 2 is not applicable.
25. Adverting to the facts, it would be noticed that the defendant has placed on record the certified copy of the Civil Suit Ex. D-1 filed earlier before the court of learned Civil Judge (Senior Division), Kangra wherein the plaintiff prayed for a decree for declaration with permanent injunction against the defendant restraining her from leaving the services of the Kangra Valley Hospital and going to any other hospital or service in violation of the agreement dated 21.10.2007 executed between the plaintiff and defendant until the determination of the agreement as per the terms and conditions contained therein.
26. It was alleged that the defendant was a doctor by profession and had approached the plaintiff and offered her services to treat patient in the hospital, which was accepted and an agreement was thereafter entered into between the parties containing therein certain stipulations and conditions of service. It was alleged that the defendant had not been performing her duties properly and had not been attending the hospital regularly and had been coming at late hours and would leave early as a result thereof the patients remained unattended. The plaintiff had served a legal notice dated 17.3.2010 but the reply thereof was entirely evasive constraining him to file the earlier suit.
27. Now, coming to the facts of the instant suit, the plaintiff has filed the instant suit for recovery of Rs. 63,58,827/- by way of damages along with interest on the allegation that the defendant had approached the plaintiff and thereafter had executed an agreement on 9.7.2007. Though, certain additional averments regarding certain machines equipments etc. having been installed by the plaintiff. However, nonetheless the substantive pleading with regard to the service of legal notice and receipt of reply remain the same in both the suits. The cause of action pleaded in para-6 of the earlier suit reads thus:
"6. That cause of action arose to the plaintiff in beginning of July 2010 when she threatened to cancel the agreement and to leave plaintiff''s hospital and join other hospital or Government institution at Mohal and Mauza Kangra, Tehsil and District Kangra, H.P." Whereas, the cause of action as pleaded in the instant suit in para 21 reads thus:
"21. That the cause of action accrued to the plaintiff in his favour and against the defendant firstly on dated 31.3.2010 when the defendant left the Kangra Valley Hospital of the plaintiff at her own sweet will without any notice, secondly, on dated 12.7.2010 when the defendant had served a legal notice on the plaintiff whereby the defendant informed the plaintiff that she is not willing to work in Kangra Valley Hospital and due to which the plaintiff has to suffer the financial losses to the tune of Rs. 63,58,827/- as the defendant failed to discharge her duty and got indulged in unfair practices, gross negligence and misconduct and the cause of action is still continuing as the defendant has failed to make payment to the tune of Rs. 63,58,827/- with interest @ 18% per annum from the date of institution of the present suit."
28. Ms. Bhavana Datta, learned counsel for the plaintiff would vehemently argue that no doubt the plaintiff had filed the instant suit when the former suit was pending, however, the same was not adjudicated upon merits and therefore nothing prevents the plaintiff from filing the instant suit. She would further argue that once the Court at Kangra admittedly lacked the pecuniary jurisdiction to entertain and try the instant suit, therefore, the instant suit cannot be said to be barred by the principles laid down in Order 2, Rule 2 CPC.
29. On the other hand, Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Ajeet Pal Singh Jaswal, Advocate, learned counsel for the defendant would argue that in case the plaintiff had not chosen to include the relief which was available to him at the time when he filed the earlier suit, this would be relinquishment of claim which will preclude the plaintiff from filing the subsequent suit irrespective of whether the same is adjudicated on merits or not. He would further argue that merely because the Civil Court at Kangra would not have pecuniary jurisdiction cannot be a ground to claim that the suit would not be barred under the aforesaid provision.
30. Order 2, Rule 2 CPC reads thus:
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
31. It is well settled that in order to attract the bar created by this rule, it is necessary that earlier suit should be founded on the same cause of action on which the subsequent suit is based, and if in the earlier suit the plaintiff omitted to sue in respect of or intentionally relinquished any portion of his claim, he would not be entitled to sue subsequently in respect of the portion of his claim so omitted or relinquished. The bar is not avoided by an expression of intention to sue again. Nor is it avoided, by obtaining leave to sue in respect of the portion so omitted. The reason is that the leave contemplated by this section is the leave to sue for one of the several reliefs, referred to in sub rule (3) and it does not relate to ''the portion so omitted'' referred to in sub rule (2).
32. Where a person is entitled to more than one relief in respect of the same cause of action, he may sue for all the reliefs or he may sue for one or more of them and reserve his right with the leave of the court to sue for the rest. However, if no such leave is obtained, he will be precluded from afterwards suing for any relief so omitted.
33. Having given my conscious consideration to the legal position as also to the arguments raised by learned counsel for the parties, I have no hesitation to conclude that it is on the same cause of action that the plaintiff has filed the instant suit. The plea as raised in this suit was already available to him at the time when he filed the earlier suit. Rather, the instant suit is based upon a cause of action of earlier date i.e. 31.3.2010, whereas, the earlier suit is based upon a cause of action of a latter date i.e. July, 2010.Having omitted to sue for the relief which was available to the plaintiff, he is now clearly precluded from raising the same. After all, the defendant cannot vexed twice for the same cause of action.
34. At this stage, it may be noticed that there are some decisions of the different High Courts which indicate that what attracted the bar under Order 2, Rule 2 CPC, the earlier suit should have been decided on merits, but was dismissed in default. However, it would not make a difference as eventually what the plaintiff is seeking is re-litigation and the same clearly defeats the salutary purpose of enacting Order 2, Rule 2 which seeks to usurp and prevent this practise and is based on the principle that no person shall be vexed twice for the same cause of action.
35. In view of the aforesaid discussion, preliminary issue No. 3 is answered in favour of the defendant by holding that the instant suit is not maintainable in view of Order 2, Rule 2 CPC and the same is accordingly dismissed, so also the pending application(s) if any. The parties are left to bear their own costs. Decree sheet be drawn accordingly.
