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Case Number

Civil Revision Petition No. 292 of 1954

Attorney(S)

M.V. Srinivasa Rao
T. Rama Chandra Rao
for A. Kuppuswamy

Judges

Chandra Reddy, C.J
Jaganmohan Reddy, J.

Acts

SECTION 43 CIVIL PROCEDURE CODE
Order 2, rule 2, C.P.C Rule 2 says:(a)
sub-rule 1 and rule 2
provisions of rule 2,
Order 2, rule 2, C.P.C
Order 2, rule 2,
sub-rule 3.6.
sub-rule 3
Sub-rule (1)

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Smart Summary

Judicial Opinion Summary — Chandra Reddy, C.J.

Factual and Procedural Background

This revision petition challenges an order of the Subordinate Judge, Nellore, which granted permission under Order 2, rule 2 of the Civil Procedure Code (C.P.C.) to institute another suit in respect of the properties described in the plaint as the ‘C’ schedule properties.

The plaintiffs are reversioners to the estate of one Ramabhotlu, who died in 1901 childless, leaving a widow Rosamma. The plaintiffs brought a suit before the Subordinate Judge, Nellore, for recovery of properties belonging to Ramabhotlu. It was alleged in the plaint that Ramabhotlu had been possessed of the ‘A’ and ‘B’ schedule properties; the ‘C’ schedule properties had been acquired with income from the ‘A’ and ‘B’ schedule properties; and that Rosamma had executed conveyances in the name of the defendant (her brother's son) to defeat the reversioners’ rights, so that those conveyances constituted accretions to the estate.

The plaintiffs sought (a) a decree directing delivery of possession of the ‘A’ and ‘B’ schedule properties and an account of mesne profits in respect of those properties (the ‘B’ schedule being movables), and (b) permission to file a separate suit in respect of the ‘C’ schedule properties, on the ground that they lacked sufficient funds to pay the court-fee for that portion of the claim. The Subordinate Judge granted the permission in an order stating only: “Permission granted.” That order is the subject of this revision.

Legal Issues Presented

Whether the lower Court had competence to grant leave under Order 2, rule 2, C.P.C., permitting the plaintiffs to institute another suit in respect of the ‘C’ schedule properties.
How Order 2, rule 2 (particularly its sub-rules) should be interpreted — whether sub-rule (3) can be read as allowing splitting of a single claim by obtaining leave, effectively operating as a proviso to sub-rules (1) and (2).
Whether the items of property (the A, B and C schedule items) constituted separate claims giving rise to separate reliefs, or constituted parts of a single claim that must be litigated in one suit.
Whether inability to pay court-fee for part of a claim is a proper ground on which the Court may grant leave to split the claim under sub-rule (3).

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs sought permission to file a separate suit for the ‘C’ schedule properties on the ground that they did not possess sufficient funds to pay the court-fee for that part of the claim at the time of instituting the present suit.

Respondents' Arguments

The respondents (through their counsel) contended that it is permissible for a plaintiff to split up a claim provided the leave of the Court is obtained — i.e., that sub-rule (3) should be read to permit splitting where the Court grants leave, otherwise sub-rule (3) would be deprived of practical effect.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Govind Hari Dev v. Parashram Mahadev Joshi, I.L.R. 25 Bom. 161	Established that parts of one total indebtedness and claims arising under the same obligation constitute one cause of action; under the corresponding provision a subsequent suit for a mortgage (to secure the unpaid balance) was barred as being part of one cause of action.	Relied upon to support the proposition that separate suits cannot be maintained for portions of one total indebtedness or a single cause of action; used as authority to deny splitting the claim in the present case.
Rajee Bahadur Shiv Lal v. Rajeevappa Pampanna	Distinguished between cases where multiple remedies arise from a cause of action (where leave may be material) and where the claim is one cause of action affording a single relief (where omission in a prior suit bars later suit).	Used to corroborate the distinction that sub-rule (3) applies where several distinct and independent reliefs arise from the same cause of action, not when a single claim is split into parts.
Naba Kumar v. Radhashyam, A.I.R. 1931 P.C. 239	Holds that a second suit for rents and profits (account and payment) after an earlier suit seeking conveyance and accounts was unsustainable because the relief could have been claimed in the earlier suit.	Applied to demonstrate that sub-rule (3) is attracted only where distinct and independent reliefs could be aimed in one suit; not applicable where a single relief could be claimed with respect to the whole claim under sub-rule (1).
Muhammad Hafiz v. Mirza Muhammad Zakariya	Where a mortgagee elected to sue for interest only under the mortgage instrument, a subsequent suit for principal and further interest was dismissed — the mortgagee was deemed to have relinquished the omitted relief.	Relied upon to show that a plaintiff who elects a limited remedy in the first suit may be deemed to have relinquished other parts of the claim and cannot later maintain a fresh action for those omitted parts.

Court's Reasoning and Analysis

The Court's analysis proceeded from a textual and purposive interpretation of Order 2, rule 2, C.P.C. The rule declares that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action (sub-rule (a)), and bars a plaintiff from subsequently suing for portions omitted or intentionally relinquished (sub-rule (b)). Sub-rule (c) permits a person entitled to more than one relief in respect of the same cause of action to 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 omitted.

The Court emphasized that sub-rule (3) (i.e., sub-rule (c)) is directed to situations where a cause of action gives rise to a number of distinct remedies or reliefs. It is not a general proviso permitting splitting of a single claim that affords only one relief; the language and structure of the rule show that sub-rules (1) and (3) deal with different situations. Reading sub-rule (3) as a proviso to sub-rules (1) and (2) would be contrary to the scheme and intended effect of the rule.

The Court rejected the respondents' construction that sub-rule (3) means a plaintiff may always split a claim provided court leave is obtained; the Court observed that if the framers had intended such a meaning, it would have been placed in sub-rule (1). Instead, sub-rule (3) applies where several distinct and independent reliefs accrue from the same cause of action. In contrast, where the entirety of the claim constitutes a single cause of action or where various items constitute parts of a single claim, the rule mandates that the whole claim be litigated in one suit.

The Court surveyed authority to support its interpretation: it relied on Govind Hari Dev v. Parashram Mahadev Joshi and Rajee Bahadur Shiv Lal v. Rajeevappa Pampanna to show that parts of one total indebtedness or a single contractual cause of action cannot be split into separate suits; Naba Kumar v. Radhashyam was cited to illustrate that reliefs which could have been claimed in the first suit cannot later be pursued separately; Muhammad Hafiz v. Mirza Muhammad Zakariya was invoked where election of a limited remedy precluded subsequent suit for the omitted relief.

Applying these principles to the facts, the Court concluded that the various items of property (A, B and C schedule properties) together constituted one claim for purposes of Order 2, rule 2. The items were portions of a single reversionary claim that could not properly be treated as independent claims each giving rise to a separate relief. Therefore the reversioner cannot reserve the right to litigate parts of the claim in subsequent proceedings even with leave of the Court when those parts form one claim.

The Court also held that even putting the strict rule aside, the lower Court's order was independently vulnerable because the learned Subordinate Judge had not applied his mind to the request: the order consisted only of the words “Permission granted,” giving no indication of consideration of the legal test. Moreover, the justification offered by the plaintiffs — inability to pay court-fee for part of the claim — was not a permissible reason to invoke sub-rule (3). Granting leave on such grounds would encourage multiplicity of suits and would defeat the salutary purpose of rule 2 to prevent splitting and harassment of defendants. The Court observed that the plaint itself (paragraph 22) showed no proper case for the plaintiffs in respect of the ‘C’ schedule properties.

Holding and Implications

Holding: The revision petition is ALLOWED. The Court allowed the revision and, by implication of that allowance against the order granting permission, the Subordinate Judge's order permitting a separate suit for the ‘C’ schedule properties stands set aside.

Implications:

Direct effect on the parties: The plaintiffs are not permitted (under the order impugned) to institute a separate suit for the ‘C’ schedule properties; the permission previously granted by the Subordinate Judge has been disallowed by this revision.
Legal consequence: The decision reaffirmed the strict operation of Order 2, rule 2 — a plaintiff must include the whole claim that has accrued up to the date of suit and may not split a single claim into separate suits simply by obtaining leave where the omitted portion forms part of the same cause of action.
Broader precedent: The opinion applies existing authorities and interprets the statutory rule; the Court did not purport to create a novel rule but reaffirmed established principles limiting the circumstances in which a claim may be split. The opinion does not announce any new expansive doctrine beyond that interpretative application.

Ch. R.

Order pronounced: Revision Allowed; petition allowed without costs.

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Arikatla Venkataswami (Died) By L. Rs. v. Mavillapalli Veeraiah And Others .

Chandra Reddy, C.J:— This revision petition is against the order of the Subordinate Judge, Nellore, granting permission under Order 2, rule 2, C.P.C to institute another suit for recovery of the plaint ‘C’ schedule properties.

2. The plaintiffs, as reversioner to the estate of one Ramabhotlu, who died on 1901 childless leaving behind him his widow Rosamma, brought a suit in he Court of the Subordinate Judge, Nellore, for recovery of the properties belonging to Ramabholtu. Rosamma died in January, 1953. It was recited in he plaint that Ramabhotlu died possessed of the ‘A’ and ‘B’ schedule properties that the ‘C’ schedule properties were acquired with the income from the ‘A’ and ‘B’ schedule properties, that with a view to defeat the rights of the reversioner she began to take conveyances in the name of the defendant, who is her brother's son, and that they formed accretions to the estate notwithstanding this fact.

3. The plaintiffs asked for a decree directing the defendant to deliver possession of the ‘A’ and ‘B’ schedule properties to the plaintiffs and to account for the mesne profits arising on the ‘A’ and ‘B’ schedule properties, the properties disclosed in the ‘B’ schedule being movables. As regards the ‘C’ schedule properties, they asked for permission to file another suit on the ground that they were not possessed of sufficient funds to pay court-fee thereon. The Subordinate Judge accorded the permission asked for in two words ‘permission granted’. It is this order that is now sought to be reversed.

4. The primary question that falls to be decided is whether it was competent for the lower Court to give the leave requested for. This depends upon the meaning to be given to Order 2, rule 2, C.P.C Rule 2 says:

“(a) 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.

(b) 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.

(c) 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.

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

5. Thus, the plaintiff should include the whole of the claim that had accrue upto the date of the suit. If he fails to do so, he is debarred from institution another suit for further relief on the same cause of action i.e, the entire claim which the plaintiff has against the defendant at the time the action is brought should be the subject-matter of the suit. This rule aims at the elimination the two evils of splitting up of claims and reliefs. The desire of the Legislature to prohibit multiplicity of suits finds expression in this rule. The intendment of this rule is that parties, who have got certain rights, should assert them all at the same time and not piecemeal so that a man may not be vexed twice regard to the same cause of action. Rule 2 requires that the whole claim i.e, the entirety of the claim, should be embraced in one action on the peril of the plaintiff being debarred from bringing another suit in respect of the portion omitted since it would be deemed that he had intentionally relinquished it. The scheme of the rule is that it is mandatory that the right based upon one cause of action should be litigated in one suit, unless it comes within the purview of sub-rule 3.

6. It is contended for the respondents that it is permissible for a plaintiff to split up the claim, provided permission of the Court is obtained; otherwise sub-rule 3 will be deprived of its full content, urges the counsel for the respondents. We are unable to give weight to this theory. This construction amounts to treating sub-rule 3 as a proviso to sub-rules (1) and (2).

7. If that were the purpose of the framers of the Code, this would have been inserted in Sub-rule (1) itself. In our opinion sub-rules (1) and (3) deal with different situations. Sub-rule (3) is attracted only to a case where a number of reliefs flow from the same cause of action. That sub-rule does not contemplate a subject-matter which is capable of only one claim. In an eventuality of several reliefs accruing from the same cause of action a party might agitate a part of the cause of action in one suit reserving his right with the leave of the Court to litigate the other part in a subsequent suit. But if a party asks for a limited relief when a larger one is available to him, he incurs the penalty provided in sub-rule 3. The language of the rule is incapable of the interpretation that is sought to be put upon it.

8. There is authority for the view we take. In Govind Hari Dev v. Parashram Mahadev Joshi . I.L.R 25 Bom. 161., a settlement of account between the plaintiff and the defendant resulted in a large sum of money being found due by the defendant. It was agreed between them that a portion of the debt should be paid off before a particular date and for the balance a mortgage on certain specified immovable properties should be furnished and in the event of the defendant failing to pay part of the claim in cash within a particular time, the mortgage was to be for the full amount. The defendant committed default in regard to both the stipulations, whereupon the plaintiff filed a suit to recover the money agreed to be id in the first instance with interest thereon and obtained a decree. A suit directing the defendant to pass to him a mortgage bond for the balance due was held to be barred under Section 43 of the Civil Procedure Code, which corresponds to the present Order 2, rule 2, on the ground that they were parts one total indebtedness and the whole amount was payable in respect of very part of that amount when the first suit was commenced, there being only one cause of action.

9. The principle enunciated by the same Court in Rajee Bahadur Shiv Lal v. Rajeevappa Pampanna is in accordance with Govind Hart Dev v. Parashram Mahadev Joshi . I.L.R 25 Bom. 161.. The question there was whether two actions could be maintained for breaches of the different terms of a contract. In the first suit, the Plaintiff chose one of the stipulations in the agreement and claimed relief in respect of it. That was disallowed for some reason. Another suit based upon the same agreement and asking for relief by way of damages in respect of her stipulations was filed. The second suit was dismissed for the reason that the plaintiff should have claimed damages in regard to all the stipulations in the prior suit. It was observed there that the question of leave would have been material.

“If the omission in the previous suit had related to any of the remedies to which the plaintiff was entitled and the penultimate paragraph of section 43 had applied. But here the question is not one of any remedy but it is of a claim arising out of the breach of contract averred (both in the plaint in the previous suit and in the plaint in the present suit) as constituting the plaintiff's cause of action.”

10. The latter case has specifically drawn the distinction pointed out by us above, namely, a cause of action affording one relief only in regard to different aspects of the same matter and a cause of action giving rise to more than one relief.

11. A pronouncement of the Privy Council in Naba Kumar v. Radhashyam . A.I.R 1931 P.C 239. affords us some assistance in this enquiry. There, the prior suit was for a decree directing the defendant to convey the properties purchased in an execution sale with necessary accounts. That relief was granted. The second suit based upon the allegation that, after the execution purchase of the properties, the defendants had received rents and profits for which they had not accounted and with a prayer for account and payment was held to be unsustainable as at relief could have been claimed in the previous suit. It is thus plain that sub-rule 3 is attracted only where distinct and independent reliefs could be aimed in one suit and is inapplicable to a case where a single relief could be claimed in regard to one claim which comes within the ambit of sub-rule 1, which is intended to deal with the vice of splitting up of one claim.

12. We will now proceed to consider whether each of the items could be treated is a different claim which would give a different from of relief and which could be litigated at several stages as sought to be made out by the counsel for the respondents. We are unable to agree that this is the effect of sub-rule 1. We think that all the items together make one claim, that each of them cannot be regarded as forming one claim giving rise to a separate relief and that one single claim could be made in respect of various items of property. The difference items are only portions of a claim. It is difficult to postulate that the difference sets of property, which a revisioner is entitled to recover, constitute independence claims and form the subject-matters of several reliefs. The contention in the behalf views the proposition from a wrong angle.

13. In Muhammad Hafiz v. Mirza Muhammad Zakariya, a mortgagee, who was entitled to realise the whole mortgage money by reason of the defaults committed by the mortgagor, sued for interest only, exercising the option given to him by the document. A subsequent action for principal and further interest was dismissed as not maintainable since he must be deemed to have relinquished his further relief in the first suit. Discussing the right to bring another suit, Lord Buckmaster remarked thus:

“It is also important to point out that the only relief that could be sought in both the cases was realisation of the mortgage security for the mortgage was a simple mortgage containing no express convenant for the payment of the principal and the interest.”

14. On the plain language of the rule and authority, there is no scope for viewing a claim like the one involved in this case as coming under sub-rule of rule 2. A claim to be put forward to various items of property by a plaintiff when reversion falls is governed by sub-rule 1 and rule 2 and the reversioner cannot reserve his right in regard thereto even with the leave of the Court.

15. Even otherwise, the order in question cannot be allowed to stand. The learned Judge does not seem to have applied his mind to the question the presented itself to him. The order does not give any indication of his having thought over the matter. As already remarked, the order reads ‘Permission granted’.

16. We do not feel that this is a case in which the discretion that is vested in a Court could be exercised in favour of the plaintiffs. The reason adduced in support of the request was admittedly not one which could recommend itself to a Court for invoking sub-rule 3, namely, inability to pay court-fee in regard to a part of the claim. Orders of this description would encourage litigants to resort to multiplicity of suits and would help them to get over the provisions of rule 2, which deals with the vice of splitting up of claims and which is a salutary rule. A perusal of paragraph 22 of the plaint should have convinced the Sub-ordinate Judge that the procedure adopted by the plaintiffs was calculated to harass the defendant. The recitals themselves clearly establish that there was no semblance of a case for the plaintiffs in regard to the properties set out in ‘C’ schedule. Viewed in any light, this is not a case in which permission within the meaning of sub-rule 3 could be granted.

17. In these circumstances, this revision petition is allowed without costs.

Ch. R.

18. Revision Allowed.

Arikatla Venkataswami (Died) By L. Rs. v. Mavillapalli Veeraiah And Others .

Judicial Opinion Summary — Chandra Reddy, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Arikatla Venkataswami (Died) By L. Rs. v. Mavillapalli Veeraiah And Others .

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