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civil_laws:frame_of_suit

Frame of Suit

Intorduction

Order II deals with frame of suit. It has seven rules. Rule 1 generally deals with frame of suit. Rule 2 provides that the suit to include the whole claim and all reliefs arising out of one cause of action and its effect for non-inclusion. Rule 3 provides Joinder of causes of action, whereas Rule 4 mandates that only certain claims are to be joined for recovery of immovable property and not others. Rule 5 provides that in claims by or against executor, administrator or heir, personal claims can not be joined. Rule 6 empowers the Court to order separate trials (split of suits) in case of joinder of causes of action. Rule 7 mandates that objections as to misjoinder can be taken at the earliest opportunity.

Before entering upon the the principles of frame of suit, one has to know the meaning of certain terms:

  1. Cause of action– The expression ‘cause of action’ means every fact or bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court-See-Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 1), Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another 2).
  2. Joinder of causes of action—It means different causes action can be joined together in one suit.
  3. Frame of suit-It means drafting of plaint in a manner so that the plaintiff is to plead necessary facts in order to support his right to the judgment of the court.
  4. Misjoinder of causes of action: If two or more causes of action cannot be joined together in one suit, the same is called misjoinder of causes of action.
  5. Executor: In case of testamentary succession such as Will or Codicil, the person who made the devise (document of will) is called testator. The person in whose favour it is made to execute the will, he called the executor.
  6. Administrator: In case of testamentary succession such as Will or Codicil, the person who made the devise (document of will) is called testator. The person in whose favour it is made to execute the will for administration of the propertied, he called the Administrator
  7. Claims by or against heir: A person who inherits the estate of deceased person, he is called the heir.
  8. Waive: It means a person knowing his right does not enforce it or remains mute spectator of violation of his right or relinquishes his right, it is called that he waives his right.
  9. The word ‘omission’: It means that party has knowledge but still not included that the claim or property. Dnyanu Dadu Patil v. Shripati Dadu Patil deceased by L.Rs. and others 3).

ORDER 2 RULE 1

It provides general provisions of framing of suit. Every suit shall be so framed or plaint shall be so drafted that: 1. It would afford ground for final decision upon the subjects in dispute and 2. It would prevent further litigation concerning them. It is pertinent to mention that on the basis of such principles, proviso to Section 34 of the Specific Relief Act is enacted.

Order 2 Rule 2 : Suit include the whole claim

Order 2 Rule 2 (1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The plaintiff has right to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. But 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 under Rule 2 (2). The institution of suit for such claim is barred under under Order 2 Rule 2 (2). ILLUSTRATION clarifies the provision. “A” lets a house to “B” at a yearly rent of Rs. 1200. 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 of 1905 or 1907.

Order 2 Rule 2 (3) provides that:

  1. A person is entitled to more than one relief in respect of the same cause of action.
  2. He being plaintiff may sue for all or any of such reliefs.
  3. If such person omits to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
  4. Of course he can institute a fresh suit with the leave of the Court.
  5. Explanation provides that for the purposes of the purpose of rule 2, 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.

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. The doctrine of res judicata differs from the rule embodied in Order 2 Rule 2 is that, the former places emphasis on the plaintiff’s duty to exhaust all available grounds in support of claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. For application of Rule 2 (3) it must be shown:

(i) that the second suit is based on the same cause of action on which the earlier 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 of the court, omitted to sue for the relief which the second suit had been filed.

As the plea is a technical bar it has to be established satisfactorily and can not be presumed merely on basis of inferential reasoning. The plea 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. See-Gurbux Singh v. Bhooralal 4); Bengal Waterproof Ltd. V. Bombay Waterproof Manufacturing Co. And another 5); Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 6) One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, whether the same evidence will maintain both actions. Mohammad Khalil Khan v. Mahbub Ali Mian 7). In earlier suit plaintiff was a lessee and his possession was threatened and, therefore, he sought the court’s assistance to protect his possession and when in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the relief of declaration to which he was entitled could not be granted in view of the provisions of Specific Relief Act. The cause action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The subsequent suit was based on a distinct cause of action not found in the former suit that the plaintiff had been dispossessed and recovery of possession was to be granted. Suit was held not barred under Order 2 Rule 2 (3). Sri Inacio Martins (d) through L.Rs. v. Narayan Hari Nayak and others 1993 AIR SCW 2163. In earlier suit seeking a decree for declaration of right and title of plaintiffs to suit properties, the title of plaintiffs upheld. But prayer for injunction was rejected as possession was not found. Subsequent suit for recovery of possession is not barred under Order 2 Rule 2 as cause of action in both suits are not same. Kunjan Nair Sivaraman Nair v. Narayanan Nair and others AIR 2004 SC 1761.

Order 2 Rules 3 to 5 provide rules of Joinder of causes of action.

Order 2 Rule 3 provides that save as otherwise provided in Order 2 Rules 4 and 5 , a plaintiff may unite in one suit:

  1. Several causes of action against the same defendant, or the same defendants jointly; and
  2. any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly.

Where causes of action are united in one suit by the plaintiff or plaintiffs, 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.

Plaintiffs jointly interested

Common question of law and facts arising for consideration - Plaintiffs having similar cause of action and jointly interested in securing one decree against one and the same defendant – Plaintiffs could rightly and legally unite their cause of action in the same suit and the same was maintainable.– AIR 1978 Orissa 111: 45 (1978) CLT 174, Khirod Vrs. Bansidhar.

Defendants are not jointly liable. All causes of action can not be tried together. Court may give opportunity to file separate suit. O.2, R.3 C.P.C. permits the plaintiff to unite in the same suit several causes of action against the same defendant or the same defendants jointly. It is a condition precedent to the applicability of the rule that the defendants must be jointly liable in respect of each and every one of the cause of action sought to be joined, though it is not necessary that each of such defendants should be interested in all the reliefs claimed, provided they are interested jointly in the main question raised in the litigation. There are distinct cause of action for demanding partition of properties. Defendants in the suit are not jointly liable in respect of each of her cause of action. The two causes of actions could not be joined to gether in one and the same suit. 63 (1987) CLT 431, Basudev Moharana Vrs. Somnath Maharana.

Order 2 Rule 4 provides that only certain claims are to be joined in a suit for recovery of immovable property. Those are:

(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

© claims in which the relief sought is based on the same cause of action :

Except those, no cause of action shall be joined with a suit for the recovery of immovable property unless the leave is granted by the Court.

Order 2 Rule 4 Proviso states that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure of redemption from asking to be put into possession of the mortgaged property.

Order 2 Rule 5 provides that n no claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally unless the such 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.

Order 2 Rule 7 provides that 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 to so taken shall be deemed to have been waived.

Split of suit

Order 2 Rule 6 empowers the Court to order for split of suits and to order separate trials. The Court may order separate trials or make such other order as may be expedient in the interests of justice where it appears to the Court:

  1. that the joinder of causes of action in one suit may embarrass it or
  2. that the joinder of causes of action in one suit may delay the trial or
  3. that the joinder of causes of action in one suit may is otherwise inconvenient.
1) , 6)
AIR 2004 SC 1761
2)
AIR 2008 SC 2187
3)
AIR 2008 Bombay 170
4)
1964 (7) SCR 831
5)
1997 (1) SCC 99
7)
AIR 1949 PC 78

Created on 2020/12/12 19:37 by Japhin Raj • Last modified on 2020/12/12 21:02 by LawPage