Order II – Frame of Suit

Rule 1: Frame of suit.—

Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.


Rule 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 purposes 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.


Rule 3: Joinder of causes of action.—

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.


Rule 4: Only certain claims to be joined for recovery of immovable property.—

No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except—

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.


Rule 5: Claims by or against executor, administrator or heir.—

No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.


Rule 6: Power of Court to order separate trials.—

Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.


Rule 7: Objections as to misjoinder.—

All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.


IMPORTANT CASE LAWS

1. Relation between Order 2 and Section 11 of the Code in regard to the principle of ‘res judicata

Mohammad Khalil Khan v. Mabub Ali Mian, AIR 1949 PC 78: “Shortly stated, Or. 2, r. 2, C.P.C., enacts that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. To apply the rule to the facts of the case their Lordships will have to consider what was the cause of action in Suit No. 8, on which the plaintiffs founded their claim, and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit. For, if they failed to include all the claims, then by force of Or. 2, r. 2, they are precluded from including the claim omitted in the present Suit No. 2. As pointed out in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, “The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit. . . .” The object of the rule is clearly to avoid splitting up of claims and to prevent multiplicity of suits. The phrase “cause of action” has not been defined in any enactment, but the meaning of it has been judicially considered in various decisions. In Read v. Brown, Lord Esher M.R. accepted the definition given in Cook v. Gill that it meant “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved”. Fry L.J. agreed, and said, “Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action”. Lopes L.J. said, “I agree with the definition given by the Master of the Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action”. This decision has been followed in India. The term has been considered also by the Board. In Mussummat Chand Kour v. Partab Singh, Lord Watson delivering the judgment of the Board observed as follows: “Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour””


2. Discretion under Rule 6 cannot be claimed as a right by a party

Md. Ishaq v. Abdul Majeed, AIR 1954 All 455: “……….although law has given this privilege to a plaintiff, it has, at the same time, invested the court with power to order separate trials provided it finds it convenient to try or dispose of the different causes of action in one suit. This is provided by R. 6. But this privilege of ordering the trial to be split up into two or more trials is given to court alone. The defendant cannot claim it as of right. If the court does not find it inconvenient to try the suit as brought the plaintiff is certainly entitled to continue the suit in the form in which he has filed it…………”


CONNECTED SECTIONS

1. Section 11

2. Section 12

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