The Bar of Order 2 Rule 2 CPC in Partition Suits under Indian Law

The Bar of Order 2 Rule 2 of the Code of Civil Procedure in Partition Suits: An Analytical Study under Indian Law

Introduction

Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC) is a crucial provision aimed at preventing the multiplicity of suits and ensuring that a defendant is not vexed twice for the same cause of action. It mandates that a plaintiff must include the whole of the claim to which they are entitled in respect of a cause of action in one suit. The relinquishment or omission of any part of the claim or any of the reliefs available, without the leave of the court, can bar a subsequent suit for that omitted part or relief. This article seeks to provide a comprehensive analysis of the application of Order 2 Rule 2 CPC specifically in the context of partition suits in India. It will delve into the interplay between the procedural bar of Order 2 Rule 2 and the unique nature of partition actions, particularly the concept of a 'continuing cause of action', drawing upon statutory provisions and judicial pronouncements.

Understanding Order 2 Rule 2 of the CPC

Order 2 of the CPC deals with the frame of a suit. Its underlying principle is to consolidate litigation and prevent fragmentation of claims arising from the same cause of action.

Core Principles of Order 2 Rule 2

Order 2 Rule 1 lays the foundation by stating that 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. Building on this, Order 2 Rule 2 provides:

  • Order 2 Rule 2(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.
  • Order 2 Rule 2(2): 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.
  • Order 2 Rule 2(3): 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.

The Supreme Court in Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013 SCC 1 625) elucidated these provisions, emphasizing that Order 2 Rule 1 requires the inclusion of the whole claim, while Order 2 Rule 2(2) deals with the consequence of omitting or relinquishing a portion of the claim, and Order 2 Rule 2(3) addresses the omission of one of several reliefs available on the same cause of action. This interpretation was reiterated in Pramod Kumar And Another v. Zalak Singh And Others (Supreme Court Of India, 2019) and KALLANAGOWDA SANGANAGOUDA PATIL v. BHIMANAGOUDA SANGANAGOUDA PATIL (Karnataka High Court, 2024), both citing Virgo Industries.

The Concept of "Cause of Action"

The linchpin for the application of Order 2 Rule 2 is the "cause of action." For the bar to apply, the cause of action in the subsequent suit must be the same as in the former suit. The Privy Council in Mohammad Khalil Khan And Others v. Mahbub Ali Mian And Others (1949 AIR PC 78) defined "cause of action" as 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 refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour, focusing on substance rather than form.

The Supreme Court in Alka Gupta v. Narender Kumar Gupta (2010 SCC 10 141) clarified that Order 2 Rule 2 CPC prevents a plaintiff from splitting claims and reliefs based on the same cause of action. It requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The Court emphasized that the cause of action for the purpose of Order 2 Rule 2 CPC means the cause of action which gives occasion for and forms the foundation of the suit.

The Delhi High Court in GAURAV MANGLA & ORS v. ROHIT MANGLA (Delhi High Court, 2024), citing earlier Supreme Court judgments, laid down tests for determining if causes of action are the same, including whether the same evidence would support both claims and if they are identical in substance. The Jammu and Kashmir High Court in Ramesh Chander v. Rakesh Kumar & Anr. (Jammu and Kashmir High Court, 2007) noted that the cause of action consists of the whole bundle of facts which entitles the plaintiff to certain reliefs.

Pleading and Proof of the Bar

The bar under Order 2 Rule 2 is not automatic. It must be specifically pleaded and proved by the defendant. The Supreme Court in Gurbux Singh v. Bhooralal (1964 AIR SC 1810) held that for a plea of a bar under Order 2 Rule 2(3) to succeed, the defendant must produce the pleadings in the previous suit to show that the second suit was in respect of the same cause of action and for a relief which could have been, but was not, claimed in the previous suit. This was also highlighted in Alka Gupta v. Narender Kumar Gupta (2010 SCC 10 141), where the Supreme Court noted that such a bar must be pleaded with supporting issues to warrant dismissal.

Application of Order 2 Rule 2 to Partition Suits

Partition suits, by their nature, aim at dividing joint properties among co-owners. The application of Order 2 Rule 2 to such suits presents unique challenges and considerations.

General Principle: Inclusion of All Known Joint Properties

The general rule is that a suit for partition should encompass all joint family properties that are known to the plaintiff and available for division at the time of filing the suit. As observed by the Patna High Court in Sm. Jasoda Kumari Sewani And Others v. Sm. Satyabhama Sewani And Others (Patna High Court, 1959): "The cause of action in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division, so far as its existence is known at the date of the plaint." In this case, the court held that the fact that properties were situated in different jurisdictions did not preclude the application of Order 2 Rule 2 if they formed part of the same cause of action for partition.

The Andhra Pradesh High Court in Dasireddigari Peddireddi v. Chennamma (Andhra Pradesh High Court, 1981) reiterated that the entire claim regarding the same subject matter should be included in the suit, and a subsequent suit between the same parties regarding the same subject matter (i.e., omitted properties) would be barred if the cause of action is the same.

However, this rule applies to properties known and available at the time of the first suit. In Surendra Kumar v. Phoolchand (Dead) Through Lrs. And Another (1996 SCC 2 491), the Supreme Court held that Order 2 Rule 2 did not bar a claim for partition of property acquired in 1961 when the earlier partition suit had been filed in 1953, as the property could not have been included in the earlier suit.

The "Continuing Cause of Action" in Partition Suits

A significant argument often raised to counter the bar of Order 2 Rule 2 in partition suits is that the right to claim partition is a "continuing cause of action." This means that as long as the property remains joint, the right to seek partition subsists.

Several High Courts have endorsed this view, particularly in the context of Order 9 Rule 9 (barring a fresh suit on the same cause of action if the earlier suit was dismissed for default) and Order 23 Rule 1 (barring a fresh suit if the earlier suit was withdrawn without permission to file a fresh suit). In M. Shivananda v. M. Susheela (Kerala High Court, 2021), the court, quoting Mulla's Code of Civil Procedure and citing Thayyan v. Kannikandath Kozhe Purakkal (AIR 1935 Mad 458), stated that Order 9 Rule 9 does not apply to a suit for partition because the right to enforce partition is a legal incident of joint tenancy and subsists as long as such tenancy continues. Similarly, the Karnataka High Court in S.K Lakshminarasappa, Since Deceased By His L.Rs, v. Sri. B. Rudraiah And Others (Karnataka High Court, 2011) held that "Cause of action is continuous in partition cases which subsists so long as the property is held jointly... A suit for partition dismissed for default under Order 9 Rule 8 of CPC does not bar a subsequent suit for partition." This principle has been echoed in SMT. ANITA VIG & ANR v. SH. JOGINDER KHANNA & ORS (Delhi High Court, 2018), Vijay Kumar Verma v. Smt. Ramkali Paigwar (Tamrakar) (Madhya Pradesh High Court, 2015), and Sheo Nandan Singh S/O Late Raj Karan Singh & Ors.…Defendants/ v. Ram Bali Singh & Ors.…Opp. Parties. (Patna High Court, 2009).

Reconciling Order 2 Rule 2 with the "Continuing Cause of Action"

While the *right* to partition may be a continuing one, Order 2 Rule 2 operates on the *claim* made in a specific suit based on the cause of action existing *at that point in time*. The "continuing cause of action" doctrine primarily saves subsequent partition suits where the earlier suit was dismissed for default or withdrawn without liberty, meaning there was no adjudication on merits regarding the partition itself.

However, if a plaintiff, knowing of certain joint properties available for partition, consciously omits them from a suit for partition and a decree is passed in that suit partitioning other properties, a subsequent suit for the omitted properties may well be barred by Order 2 Rule 2. The cause of action for partitioning the *entirety* of the then-known joint estate existed at the time of the first suit. By omitting some properties, the plaintiff effectively splits the claim based on that cause of action.

The decision in Sm. Jasoda Kumari Sewani (Patna High Court, 1959) supports this, holding that a subsequent suit for an omitted item of joint family property was not maintainable after a decree for partition of other items had been obtained. Further, in Thimmappa Shambhu Bhatta And Another v. Ramachandra Krishna Bhatta And Another (1978 SCC ONLINE KAR 301 / 1979 SCC ONLINE KAR 303), the plaintiffs withdrew certain properties from an earlier partition suit based on the defendants' representation. A subsequent suit for partition of these withdrawn properties was held to be barred under Order 2 Rule 2 and Order 23 Rule 1 CPC. This indicates that omission or withdrawal without leave, even if based on a representation, can attract the bar if the first suit proceeded for other properties.

The principle against vexatious litigation, as discussed in N.V Srinivasa Murthy And Others v. Mariyamma (Dead) By Proposed Lrs. And Others (2005 SCC 5 548) in the context of Order 7 Rule 11 CPC, also lends weight to the argument that deliberately omitting known properties to file successive suits could be an abuse of process that Order 2 Rule 2 seeks to prevent.

Distinction from Suits for Different Reliefs or Causes of Action

Order 2 Rule 2 does not bar a subsequent suit if the cause of action is different. For instance, if an initial suit was for injunction simpliciter and a subsequent suit is for partition, the bar may not apply if the cause of action for partition is distinct from that for the injunction. In Sat Bhan Singh & Anr.…Plaintiffs; v. Mahipat Singh & Ors.…Defendants. (Delhi High Court, 2012), citing Nanak Chand v. Chander Kishore (AIR 1982 Delhi 520), it was held that a suit for partition was not barred by an earlier dismissed suit for injunction, as their natures were different. However, the facts of each case are critical. In Dhall Traders Pvt. Ltd.… v. United Breweries Ltd.…. (Delhi High Court, 2010), citing Jaideep Bajaj v. Smt. Shanti Bajaj (AIR 2006 Delhi 335), a subsequent suit for partition was held barred where an earlier suit for injunction (with nearly identical pleadings but for the prayer) was withdrawn without leave. This suggests that if the relief of partition could and should have been claimed based on the facts pleaded in the first suit, its omission might attract Order 2 Rule 2.

The Supreme Court in S. Subramanian v. S. Ramasamy And Others (Supreme Court Of India, 2019) noted an argument where the defendant contended that the plaintiff, after issuing a partition notice, first filed an injunction suit and then a partition suit, arguing the latter was barred. While the excerpt does not provide the Court's final decision on this specific point, it illustrates the commonality of such pleas.

Properties Acquired, Discovered, or Becoming Partible Later

Order 2 Rule 2 CPC does not bar a suit for partition of properties that: (a) were not known to the plaintiff at the time of the first suit; (b) came into the joint family pool after the first suit; or (c) were not available for partition at the time of the first suit but became partible later (e.g., due to expiry of a restriction, as in the spirit of Chhote Khan v. Mal Khan (1954 AIR SC 575), where partition rights revived post-settlement expiry).

The crucial element is the knowledge and availability of the property for partition at the time of the institution of the first suit, as implied by the phrasing in Sm. Jasoda Kumari Sewani ("so far as its existence is known at the date of the plaint") and demonstrated in Surendra Kumar v. Phoolchand (1996 SCC 2 491).

Conclusion

The application of Order 2 Rule 2 of the CPC to partition suits in India is a nuanced area of law. The overarching objective of this provision is to prevent the splitting of claims and reliefs arising from the same cause of action, thereby curtailing multiplicity of proceedings and harassment of defendants. In the context of partition suits, this generally requires a plaintiff to include all known joint properties available for division in a single suit.

While the right to seek partition is often characterized as a "continuing cause of action," particularly safeguarding subsequent suits where earlier suits were dismissed for default or withdrawn without adjudication on merits, this principle does not provide an unqualified license to file successive suits for properties that were consciously and without leave of the court omitted from an earlier partition suit which proceeded to a decree. The identity of the cause of action at the time of the first suit is paramount. If the cause of action for partitioning the entire known joint estate existed, and the plaintiff chose to sue for only a part of it, a subsequent suit for the omitted part may be barred under Order 2 Rule 2 CPC.

The burden of establishing the bar rests squarely on the defendant, who must produce the pleadings of the prior suit to demonstrate the identity of the cause of action and the omission of the claim or relief. Properties unknown, subsequently acquired, or becoming partible later are generally excluded from this bar. Ultimately, the applicability of Order 2 Rule 2 in partition suits necessitates a meticulous examination of the specific facts, the scope of the prior litigation, and the nature of the properties involved, balancing the procedural imperative for consolidated litigation with the substantive right of co-owners to partition joint property.