Order II, Rule 2, CPC is based on the principle that the defendants should not be twice vexed for one and the same cause....The rule contained in Order II, Rule 2 is directed against two evils, i.e., (i) the splitting of claims and (ii) splitting of remedies. The expression "cause of action" in Order IIRule 2, CPC means that cause of action for which the suit is laid, that is to say, the cause of action which gives occasion for and forms the foundation of the suit. "Cause of action" means the cause for which the suit was brought. If that cause of action enables a person to ask for a larger and wider relief suit has no reference to the defence taken in the suit nor is it related to the evidence by which the cause of action is established. But though the cause of action has no relation to and must be distinguished from the evidence by which the cause of action is proved, still the nature of the cause of action may be indicated by the nature of the evidence by which it is supported....If the relief claimed in the subsequent suit was not available to a plaintiff, at the time of filing of the first suit, then, Order II, Rule 2 CPC will not apply as the subsequent suit is based on a separate and distinct cause of action. The requirement of Order II, Rule 2 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. The tests to be applied to see whether the bar of Order II, Rule 2 is attracted or not are: (i) whether the cause of action in the previous suit and the subsequent suit is identical; (ii) whether the relief claimed in the subsequent suit could basis of the pleadings made in the plaint; and (iii) whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit. If the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff's subsequent suit is not hit by Order II, Rule 2, CPC. Inorder that a plea of a bar under Order II, Rule 2(3) should succeed, the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief; (iii) 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.
Regards
VIRAJ KADAM
Advocate Supreme Court of India
virajkadam@gmail.com
