Delhi High Court
Castrol Limited vs Sanjay Sonavane And Ors on 20 April, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
reserved on: 4 February 2026
pronounced on: 20 April 2026
+ RFA(OS)(COMM) 38/2025 & CM APPL. 80125/2025
CASTROL LIMITED .....Appellant
Through: Mr. Urfee Roomi, Ms. Janaki
Arun, Ms. Anuja Chaudhary and Mr. Arpit
Singhal, Advs.
versus
SANJAY SONAVANE AND ORS .....Respondents
Through: Mr. Adarsh Ramanujan, Mr.
Parth Singh, Mr. Gaurav Sharma and Mr.
Madhav Anand, Advs. for R-1
Ms. Anuparna Chatterjee, Adv. for R-5
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
% JUDGMENT
20.04.2026
C. HARI SHANKAR, J.
Facilitative Index to the Judgment
S. No. Subject Para Nos
1 A The lis 1-6
2 B The Issue 7
3 C Facts 8 – 39
4 I CS (Comm) 855/2025 – The first suit 9 – 25
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5 II CS (Comm) 946/2025 – The second 26 – 36
suit
6 III Proceeding before learned Single 37 – 39
Judge
7 D The Impugned Judgment 40 – 51
8 I Castrol’s contentions before learned 40 – 45
Single Judge
9 II Discussions and Findings of learned 46 – 51
Single Judge
10 E Rival Submissions 52 – 60
11 I Submissions of Mr. Urfee Roomi 52 – 54
12 II Submissions of Mr. Ramanujan 55 – 58
13 III Submissions of Mr. Roomi in rejoinder 59 – 60
14 F Analysis 61 – 112
15 I The Issue 61
16 II The Law 62 – 69
17 Gurbux Singh 70.1 – 70.6
18 Sidramappa 71.1 – 71.11
19 Deva Ram v. Ishwar Chand 72.1 – 72.10
20 Ram Prasad Rajak v Nand Kumar & Bros 73.1 – 73.6
21 Rikabdas Oswal v. Deepak Jewellers 74.1 – 74.5
22 Kunjan Nair Sivaraman Nair v. Narayanan 75.1 – 75.9
Nair
23 UOI v. H.K. Dhruv 76.1 – 76.4
24 Alka Gupta v. Narender Kumar Gupta 77.1 – 77.6
25 Coffee Board v. Ramesh Exports Pvt. Ltd. 78.1 – 78.9
26 Rathnavathi 79.1 – 79.4
27 Cuddalore Powergen Corporation 80.1 – 80.16
28 State of Maharashtra v. National 81.1 – 81.8
Construction Co.
29 Channappa v. Parvetawwa 82.1 – 82.6
30 III Applying the Law 83 – 108
31 III.A Suits arose from different causes of 84 – 97
action
32 III.B Second suit involved facts which took 98 – 100
place after first suit was filed
33 III.C Evidence required to support claims in 101 – 102
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two suits was different
34 III.D Conflation of the causes of action and 103 – 108
the transactions from which the causes
of action stem
35 III.E Re. the finding that one suit could have 109 – 112
been filed and amended to add later
facts – the bar of Order II Rule 3
36 G Conclusion 113 – 115
A. The lis
1. Castrol Ltd.1 instituted two suits against Sanjay Sonavane.
2. In CS(Comm) 855/20252, there are two defendants. The first
defendant was Sanjay Sonavane and the second defendant was
Indilube Petro Specialty Pvt. Ltd3, in which Sanjay Sonavane was a
Director.
3. In CS(Comm) 946/20254, there were five defendants apart
from Sanjay Sonavane, who was Defendant 1. Defendant 2 was Daily
Bhramar, Defendant 3 was Maharastra Bulletin, a digital news agency,
and Defendant 4 was Saksham Times Media Foundation, which was
alleged to be owning and operating the newspaper Saksham Police
Times. Defendant 5 was Google LLC, which owned the YouTube
platform and Defendant 6 were unknown defendants impleaded under
1 “Castrol” hereinafter
2 “the first suit” hereinafter
3 “Indilube” hereinafter
4 “the second suit” hereinafter
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the appellation Ashok Kumar/John Doe.
4. A learned Single Judge of this Court has, by judgment dated 24
November 2025, dismissed CS (Comm) 946/2025 as being barred by
Order II Rule 25 of the Code of Civil Procedure6. The appellant has
been granted liberty to amend CS (Comm) 855/2025 to bring on
record subsequent developments and implead necessary parties in
accordance with law.
5. Aggrieved thereby, Castrol has instituted the present appeal.
6. We have heard Mr. Urfee Roomi, learned Counsel for Castrol,
Mr. Adarsh Ramanujan for Respondent 1 and Ms. Anuparna
Chatterjee, learned Counsel for Respondent 5 Google LLC at length.
B. The issue
7. The limited issue which arises for consideration is, therefore,
whether CS (Comm) 946/2025 was barred by Order II Rule 2 of the
5 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.
6 “CPC” hereinafter
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CPC.
C. Facts
8. In order to determine the above issue, it would be necessary for
us to examine, holistically, the exact facts and averments pleaded in
the two suits and the cause of action from which they arise.
I. CS (Comm) 855/2025 – the first suit
9. The prayer clause in the first suit reads thus:
“65. In view of the aforesaid facts and circumstances, it is,
therefore, most respectfully prayed that this Hon’ble Court may be
pleased to grant the following reliefs in favour of the Plaintiff, and
against the Defendant:
a. An order for declaration under Section 142 of the
Trade Marks Act, 1999, that the Plaintiff’s 3X Marks,including do not infringe the Defendant’s
rights in the Defendant’s 3P Marks, including ;
b. An order for declaration under Section 60 of the
Copyright Act, 1957 that the Plaintiff’s 3X Marks,including do not infringe the Defendant’s
copyright in the Defendant’s work;
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c. An order for permanent injunction restraining the
Defendant and any other individuals, officers, managers,
employees, agents, dealers, licensees, companies, retailers,
or any other persons/entities that are related or affiliated to
the Defendant, individually or collectively, as the case may
be, and all others, acting for and on behalf of the
Defendant, from instituting a civil suit and/or criminal
complaint, or taking any other action, alleging infringement
of the Defendant’s 3P Marks against the Plaintiff, or the
Plaintiff’s Indian subsidiary, Castrol India Limited, and/or
any of the Plaintiff’s authorized distributors;
d. An order for damages in the sum of Rs.
20,000,500/- (Rs. Two Crores Five Hundred) to be paid by
the Defendant to the Plaintiff for issuing groundless threats
and for causing severe mental and physical harassment and
financial losses caused to the Plaintiff and its distributors
due to the Defendant’s false and ma]a fide accusations and
proceedings.
e. An order for costs of the proceeding; and
f. Any other orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present
case;”
10. Castrol, as the plaintiff in the first suit, asserted that it possessed
registration, under Section 23 of the Trade Marks Act 1999, in respect
of the following marks, in class 4:
S.No. Mark Reg/App Date
1. 10/03/2000
2. ACTIV 25/01/1999
3. CRB 19/05/2000
4. 23/02/2012
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5. 17/10/2023
11. Castrol further pleaded that it was using the distinctive
logo. It was submitted that the 3X in the said logo
was intended to signify that the engine oil of the appellant offered
protection to automobile engines at all three stages of the ride, i.e.
start-up, running and even when the engine was turned off. It was
further pleaded that, by dint of continuous and uninterrupted use, the
aforenoted marks, including the logo had become a
source identifier of Castrol and were invariably associated, in the
minds of the consuming public, with the engine oils and lubricants
manufactured and sold by Castrol. It was further pleaded that Castrol’s
packing constituted a protectable trade dress within the meaning of
Section 2(1) (m) of the Trade Marks Act.
12. Castrol further pleaded that its logos and device marks were
“artistic works” within the meaning of Section 2(1)(c) of the
Copyright Act 1957 and were duly entitled to protection thereunder.
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13. Castrol also asserted accumulation of goodwill and reputation
by use of the aforesaid marks. It had substantial sales in India and had
been spending towards advertisements and promoting the marks since
2018. Several celluloid and other public figures had acted as brand
ambassadors for Castrol.
14. Sanjay Sonavane was the registered proprietor of the
device mark registered under Section 23 of the Trade Marks Act in
class 4 with effect from 1 February 2012, claiming user of the mark
from 9 December 2011. Castrol pleaded that registration of the mark,
as granted to Sanjay Sonavane, was liable to be cancelled as the
registration was violative of Section 9(1)(b) of the Trade Marks Act.
15. Sanjay Sonavane also held a copyright registration for the
aforesaid mark under the Copyright Act, 1957.
16. Having thus set out the specifics of the marks used by Castrol
and by Sanjay Sonavane, the plaint in the first suit went on to refer to
the events which provoked its institution. On 9 August 2025, a police
raid took place at the premises of Shivay Agencies, Dindori, District
Nashik, Maharashtra, which was an authorized distributor of Castrol’s
products. Inquiries revealed that the raid had taken place because of a
complaint submitted by Sanjay Sonavane alleging that the “3X
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Marks” of Castrol infringed the “3P Marks” of Sanjay Sonavane.
Sanjay Sonavane also got registered, on the same ground, an FIR
against Castrol and Jitendra Omprakash Agrawal, the owner of Shivay
Agencies, on 9 August 2025 under Sections 637 of the Copyright Act
read with Section 318(3)8 of the Bhartiya Nyaya Sanhita9.
17. During the raid, the police seized large quantities of Castrol’s
original products from the premises of Shivay Agencies. It was further
asserted, in the plaint, that, during the raid, the respondents threatened
to take civil law proceedings against Castrol for trade mark and
copyright infringement of the respondent’s “3P Marks”.
18. Prior to this, on 6 August 2025, the respondents had published,
in the Deshdoot Marathi Newspaper, a caution notice, alleging
infringement of Sanjay Sonavane’s “3P Marks” by various marks
which included Castrol’s “3X marks”. Castigating the said caution
notice as baseless and frivolous, the plaint went on to assert that
various newspapers also carried coverages of the seizure and the
events which transpired at the time, thereby irreparably tarnishing
7 63. Offence of infringement of copyright or other rights conferred by this Act. – Any person who
knowingly infringes or abets the infringement of–
(a) the copyright in a work, or
(b) any other right conferred by this Act except the right conferred by Section 53-A,
shall be punishable with imprisonment for a term which shall not be less than six months but which may
extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to
two lakh rupees:
Provided that where the infringement has not been made for gain in the course of trade or business
the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
8 (3) Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person
whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal
contract, to protect, shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both.
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Castrol’s image. It was further alleged that, on a YouTube channel,
run by Maharashtra Bulletin, there was a detailed report with respect
to the seizure, alleging that Castrol had infringed the respondents’
copyright and trade mark. The report also carried a video of the raid
which took place on 9 August 2025.
19. Castrol alleged, in the plaint, that the short distance of time
which elapsed between the registration of the FIR and raid which took
place at Shivay Agencies premises and the various newspaper articles
and YouTube videos, indicated that the news articles and the YouTube
video were engineered at the instance of the respondents.
20. Given the nature of the controversy in the present case, it is
necessary to reproduce paras 34 to 39 of the first suit, thus:
"CAUTION NOTICE ISSUED BY THE DEFENDANT
THREATENING THE PLAINTIFF
34. It has also come to the Plaintiff’s attention that, in addition
to the grossly illegal criminal raid conducted at the Plaintiffs
authorized distributor’s premises, the Defendant has also got
published a baseless and frivolous public caution notice, in a
Marathi local newspaper, namely, Deshdoot, on August 6, 2025.
Copy of this caution notice issued by the Defendant No. 1 is
annexed hereto and marked as DOCUMENT- 19. Under this
notice, the Defendant claims that it has built goodwill and
reputation in the Defendant’s 3P Marks. More importantly, the
Defendant proclaims in the said notice that it has come to know of
certain “unscrupulous” manufacturers and sellers who are using
marks identical/similar to the Defendant’s 3P Marks, which as per
the Defendant would i11clude, but are not limited to, “3X
PROTECTION, 3X, 3X MAX, 3P TECH, 3P MAX, 3X ACTIVE,
3P POWER, 3P PERFORMANCE, 3P PICKUP, 3PX, 3N, 3S, 3T,
9 “BNS” hereinafter
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3T TECHNOLOGY”. The Defendant claims that use of these
marks without the Defendant’s autl1orization would constitute
infringement of the Defendant’s 3P Marks under the Trade Marks
Act and the Copyright Act. The Defendant has also issued a threat
under this notice that any person, firm, or company, that is found
manufacturing, storing, selling, offering for sale, or dealing in
goods bearing the aforesaid allegedly infringing marks would be
liable for civil and criminal action.
35. It is clear from the aforenoted caution notice that the
Defendant is baselessly threatening the Plaintiff of infringement
and passing off in relation to the Defendant’s 3P Marks, since the
notice explicitly sets out the word/marks “3X PROTECTION”,
“3X”, “3X MAX”, “3X ACTIVE”, which are admittedly used by
the Plaintiff on its engine oil packaging. As such, this notice would
suffice to constitute a groundless threat as provided under Section
142(1) of the Trade Marks Act, 1999 and Section 60 of the
Copyright Act, 1957.
MEDIA COVERAGE OF SEIZURE CARRIED OUT BY
POLICE AT PREMISES OF PLAINTIFF’S AUTHORIZED
DISTRIBUTOR
36. Within a day or two of the aforementioned seizure
operation having been conducted at the premises of the Plaintiff’s
authorized distributor, the Plaintiff was shocked to learn that
certain newspapers having appreciable circulation in Maharashtra
had published news a1ticles pertaining to the seizure operation
conducted at the behest of the Defendant. These articles paint an
absolutely misleading picture of the Plaintiff and its distributors
and pose a real risk of tarnishing the Plaintiff’s image irreparably.
Copies of some of these news articles, along with their English
translations, are annexed herewith and marked as DOCUMENT-
20.
37. Additionally, the Plaintiff has also come across a video
news report, published on YouTube by a channel, namely,
Maharashtra Bulletin, about the seizure carried out by the Nashik
police at the premises of the Plaintiff’s authorized distributor. The
video can be accessed at the link:
https://www.youtube.com/watch?v= qVNsExrlLk. Screenshot of
this YouTube video is annexed herewith and marked as
DOCUMENT – 21. The narrator in the video describes that the
Nashik police have uncovered copyright and trade mark
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Agencies in Dindori, Nashik, upon receipt of a complaint in this
regard from the Defendant No. 1. The news report contains many
stills and videos of the police carrying out the seizure operation at
Shivay Agencies’ godown, wherein, incidentally, many stills of
original Castrol branded products kept at the premises are also
included. Interestingly, the video news report does not make any
effort towards explaining what were the “infringing” products that
were seized by the police, or which engine oil brand was Shivay
Agencies allegedly found duplicating. Any person who were to
view this news report would be led to assume, on account of the
prominent visibility of a large amount of Castro I branded products
at the premises in this video, that Shivay Agencies has been
rounded up for selling counterfeit Castrol products, which is not
the case at all.
38. The manner in which the local police conducted the seizure
operation at the premises of the Plaintiffs authorized distributor,
seizing nothing but the Plaintiffs original products, despite the
Plaintiff clarifying it to the police personnel that the marks and
packaging fixated onto the Plaintiffs products are all original trade
marks of none other than the Plaintiff, reeks of a collusion between
the police and the Defendant No. 1. As such, it would not be too
far-fetched to assume, given the undue haste with which the news
articles and reports covering the seizure from the Plaintiff’s
authorized distributor have been published, that these news articles
have also been published at the behest of the Defendant.
39. Though the real reason or motivation of the Defendant
behind these acts remains unknown, the Plaintiff apprehends that,
by going after the individual distributors of the Plaintiff and having
large amounts of their stocks seized by colluding with the police,
the Defendant seeks to scuttle the Plaintiff’s business at least to
some extent, so that he can take advantage of the opportunity and
carve out a market for himself.”
21. In order to substantiate its case that the threats held out by the
respondent were groundless, Castrol asserted, in its plaint that, its “3X
mark” did not, in any way, infringed the respondents’ “3P mark. The
rival packagings were also completely distinct from each other. A
comparison of the rival marks and packings were provided thus:
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Plaintiff's 3X Protection Defendant's 3P
Mark/Packaging Marks/Packaging
3X PROTECTION 3P FORMULATION
22. Castrol also invoked, for its stands that Castrol’s 3X mark did
not infringe Sanjay Sonavane’s 3P mark, Section 17(2)10 of the Trade
Marks Act which does not permit exclusivity, in the case of a
composite mark, to be pleaded on the basis of any individual part of
the mark which is not separately registered as a trade mark. It was
further asserted that, even if the dominant part test were to be applied
10 (2) Notwithstanding anything contained in sub-section (1), when a trade mark–
(a) contains any part--
(i) which is not the subject of a separate application by the proprietor for
registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade mark; or
(b) contains any matter which is common to the trade or is otherwise of a non-distinctive
character,
the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of
the trade mark so registered.
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to the rival marks and “3X” and “3P” were to be treated as the
dominant parts of the rival marks, the marks, when seen as wholes,
were not deceptively similar.
23. In these circumstances, Castrol asserted that Sanjay Sonavane
was holding out groundless threats to it, alleging infringement of trade
mark and copyright, by Castrol, of his marks, where no such
infringement actually existed.
24. Para 59 of the plaint set out the cause of action on which it was
based, thus:
“CAUSE OF ACTION
59. The cause of action arose for the first time in this matter on
August 9, 2025, when the Defendant, along with the local police,
visited the premises of the Plaintiffs authorized distributor in
Jondhale Warehouse, Nashik and seized large amounts of authentic
and original products of the Plaintiff on the baseless and unfounded
ground that they infringe the Defendant’s copyright in the
Defendant’s 3P Marks, since they contain the Plaintiff’s 3X Marks.
The cause of action continued thereafter when the Plaintiff came
across the caution notice issued by the Defendant (copy already
annexed as DOCUMENT – 19), whereby the Defendant explicitly
mentioned the Plaintiffs marks, including the marks 3X, 3X
PROTECTION, 3X MAX, 3X ACTIVE, as amounting to
infringement of the Defendant’s 3P Marks. The cause of action is
continuing since the Plaintiff continues to have a real and credible
threat, based on the Defendant’s said criminal complaint and the
above-said caution notice, that the Defendant will also file a trade
mark and copyright infringement suit against the Plaintiff for the
Plaintiffs use of the 3X Marks. The cause of action shall continue
to subsist till such time this Hon’ble Court declares that the
Plaintiffs use of the 3X Marks as not infringing the Defendant’s
copyright and trade mark in the Defendant’s 3P Marks, and till such
time the Defendant is not permanently injuncted from instituting a
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Plaintiff and/or its distributors in respect of the Defendant’s 3P
Marks.”
25. Following the above assertions, and allegations, the first suit
concluded with the prayers which already stand reproduced in para 8 9
supra.
II. CS (Comm) 946/2025 – The second suit
26. We may note, at the very outset, that, though a prayer for
injunction on the ground of infringement has been included in clause
(b) of the prayer clause in the second suit, there are no real pleadings
in the plaint which would support the allegation of infringement. The
plaint in the second suit reiterated the assertions in the first suit with
respect to the registrations held by Castrol in respect of various trade
marks, as well as its goodwill and reputation. The assertion that the
3X mark had become a source identifier of Castrol was also reiterated.
27. Apropos the respondents, the plaint in the second suit also noted
the fact that Sanjay Sonavane was the registered proprietor of the
mark in class 4 under Section 23 of the Trade Marks Act. As
in the case of plaint in the first suit, the plaint in the second suit also
asserted that the said registration was liable to be cancelled as being
violative of Section 9(1)(b) of the Trade Marks Act. The copyright
registration held by Respondent 1 in the device mark was
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also disclosed in the plaint.
28. Thereafter, the plaint went on to refer to the seizure conducted
by the police at the premise of Shivay Agencies on 9 August 2025
following the copyright infringement complaint and the FIR lodged by
Sanjay Sonavane. The assertions and allegations with respect to the
said complaint, the FIR, and the raid which took place at the premises
of Shivay Agencies are identical to those contained in the plaint in the
first suit.
29. The plaint further goes on to reiterate the facts relating to the
seizure of the goods manufactured by the Castrol from the premises of
Shivay Agencies. Thereafter, the plaint also reiterates the facts relating
to the publication, allegedly by Sanjay Sonavane, of the caution notice
in the Deshdoot Newspaper on 6 August 2025. Thus far, the
asseverations and assertions in the second suit were all contained in
the first suit. From para 38 onwards, however, the second suit contains
further assertions and allegations with respect to the alleged
disparagement of the appellant by the respondents. These allegations
involve Defendants 2 to 4 in the second suit, who were not defendants
in the first suit.
30. The plaint in the second suit goes on to allege, in para 38, that
Daily Bhramar, who was the second defendant in the second suit,
through its newspaper Dainik Bhramar, published an article titled
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11
, which featured
the premises of Shivay Agencies and the original products of Castrol,
bearing its marks. The plaint alleged that the article stated that the
raid was conducted at the premises of Shivay Agencies after concrete
evidence of storage of goods which violated copyright law was found.
It was further alleged, in the article, that the police had found, during
inspection, mini packets which carried already registered trademarks
and copyright and that some of the logos were so designed that they
closely resembled registered trademarks, which could cause harm to
the original trademark owners.
31. On the same day, the plaint alleged that Saksham Police Times,
the fourth respondent herein and the fourth defendant in the plaint,
also published an article titled
12
, carrying similar images of the premises of
Shivay Agencies, the products of Castrol present therein and
allegations that the goods were found to be violating the registered
trademarks and copyright of others.
32. The plaint alleged that the articles published by Dainik Bhramar
and Saksham Police Times painted a misleading picture of the two
events relating to the raid, and were one sided and was based on half
baked truths, which were likely to irreparably tarnish Castrol’s
11 English Translation.: Action taken against a company in Dindori over copyright violation
12 English Translation: “Dindori Police Action under Copyright Law”
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reputation.
33. The plaint further alleged that, on the next day, i.e., 11 August
2025, Maharashtra Bulletin published a video on its YouTube13
platform titled .
The allegations with respect to the said YouTube video are the same
as those which were contained in the plaint in the first suit. However,
in the second suit, the plaint further stated that the video alleged that
all engine oils manufactured by the Castrol were substandard and
infringed the rights of the other registered proprietors and cautioned
consumers against purchasing Castrol’s products which were stated to
be spurious.
34. The plaint further went on to allege that, on 19 August 2025,
Castrol came to learn that Sanjay Sonavane had been circulating
messages on a WhatsApp group titled “Experts @ Lubricants”,
consisting of engine oil and lubricant manufacturers all over India,
threatening that further criminal raids would be conducted. On the
said platform, Sanjay Sonavane shared a link to the video uploaded by
the third respondent Maharashtra Bulletin, with the information that
further criminal action had been initiated by the Nasik Police.
35. Based on the above assertions of fact, the plaint went on to
allege that, in order to gain an unfair advantage over Castrol in the
13 English Translation: “Dindori Police Station took big action on a case involving copyright violation”
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motor oil and lubricants business, Sanjay Sonavane had embarked on
a disparaging and defamatory campaign against Castrol misusing, in
the process, the media as well as social media platforms. It is not
necessary, for the limited purpose of this judgment, to detail all the
assertions contained in the plaint in that regard. Suffice it to state that
the plaint categorically averred that, owing to the said tirade launched
by Sanjay Sonavane against Castrol, Castrol’s reputation had been
irreparably tarnished.
36. Following these assertions, Castrol concluded the second suit
with the following prayer clause:
“58. In view of the aforesaid facts and circumstances, it is,
therefore, most respectfully prayed that this Hon’ble Court may be
pleased to grant the following reliefs in favour of the Plaintiff, and
against the Defendants:
a. An order for permanent injunction restraining the
Defendant Nos. 1 to 4 and 6, and any other individuals,
officers, managers, partners, employees, agents, dealers,
licensees, related/affiliated companies, retailers,
wholesalers, distributors, franchisees, representatives and
assigns or any other persons/entities that are related or
affiliated to the Defendant Nos. 1 to 4 and 6, individually
or collectively, as the case may be, and all others, acting for
and on behalf of the Defendant Nos. 1 to 4 and 6, from
issuing, telecasting, posting, re-posting, uploading, sharing,
publishing, circulating the media articles and videos or in
any manner disparaging the goodwill and reputation of the
Plaintiff and/or its directors, distributors, agents, etc., and
using the Plaintiff’s marks (as shown in paragraph 4),
whatsoever including the electronic media, social media,
including WhatsApp groups and YouTube channels, print
media, etc.;
b. An order for permanent injunction restraining the
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managers, partners, employees, agents, dealers, licensees,
related/affiliated companies, retailers, wholesalers,
distributors, franchisees, representatives and assigns or any
other persons/entities that are related or affiliated to the
Defendant Nos. 1 to 4 and 6, individually or collectively, as
the case may be, and all others, acting for and on behalf of
the Defendant Nos. 1 to 4 and 6, from making any
unauthorized use of and/or using the trade marks, brand
name, trade name, copyright content, advertisements,
packaging, labels and logo of the Plaintiff, including the
CASTROL ACTIV products or any of its variants in any
manner that is denigrating/disparaging to the Plaintiff and
its marks/brand/products, or in any manner which infringes
the Plaintiff’s rights in the Plaintiff’s marks and packaging
(as shown in paragraph 4);
c. An order for permanent injunction restraining the
Defendant Nos. 1 so 4 and 6, and any other individuals,
officers, managers, partners, employees, agents, dealers,
licensees, related/affiliated companies, retailers,
wholesalers, distributors, franchisees, representatives and
assigns or any other persons/entities that are related or
affiliated to the Defendant Nos. 1 to 4 and 6, individually
or collectively, as the case may be, and all others, acting for
and on behalf of the Defendant Nos. 1 to 4 and 6 from
using the depiction or name of the Plaintiff, its and/or its
directors, distributors, agents, etc. or any of the Plaintiff’s
products in its articles, publications, videos, reels, etc. or in
any manner disparaging the goodwill and reputation of the
Plaintiff and its marks/brand/products;
d. An order of mandatory injunction directing the
Defendant Nos. 1 to 4, and any other individuals, officers,
managers, partners, employees, agents, dealers, licensees,
related/affiliated companies, retailers, wholesalers,
distributors, franchisees, representatives and assigns or any
other persons/entities that are related or affiliated to the
Defendant Nos. 1 to 4, individually or collectively, as the
case may be, and all others, acting for and on behalf of the
Defendant Nos. 1 to 10:
(i) take down/remove/block the media articles
and videos titled “कॉपीराइट उ ंघनपर िदं डोरी
पुिलस की बड़ी कारवाई” (English Tranul. Dindori
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copyright violation) from YouTube:
https://www.youtube.com/watch?v=qVNsExrlLk,
and article titled “कॉपीराइट काय ा अंतगत िदं डोरीत
एका एज ीवर कारवाई” (English Transl.: Action
taken against a company in Dindori over copyright
violation) from e-paper available online as well as
on the website located at www.dainikbhramar.com
and from any other digital mediums and/or
platforms on the Internet;
(ii) Call for the retraction of the article titled
“कॉपीराइट कायदा अंतगत िदं डोरी पोिलसां ची कारवाई”
(English Tranl: Dindori Police Action under
Copyright Law) from Defendant No. 3’s newspaper,
and from any other digital mediums and/or
platforms on the Internet;
(iii) Direct Defendant No. 1 to delete the
messages sent on the WhatsApp group, Experts @
Lubricants circulating the media articles and videos,
and messages threatening more action against the
Plaintiff;
(iv) Issue an unconditional apology to the
Plaintiff for the acts of disparagement to be
published in a leading National newspaper.
e. An order directing the Defendant No. 5 to delete the
video on their platform located at
https://www.youtube.com/watch?v=qVNsExriLk, as well
as other URLs/weblinks in their domain and control where
the videos are available for viewership;
f. A final money decree in favour of the Plaintiff for
payment of damages in the sum of INR 200,00,500/- (Rs.
Two Crores Five Hundred) as damages for disparagement,
denigration and tarnishing of its goodwill and reputation of
the Plaintiff by the Defendant Nos. 1 to 4 by their dishonest
media articles and videos, and circulation of these articles
and videos;
g. An order for costs of the proceeding; and
h. Any other orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present
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case.”
III. Proceedings before the learned Single Judge
37. Both the aforesaid suits were listed before the same learned
Single Judge on the IP Division of this Court.
38. On 19 August 2025, the learned Single Judge passed an order
restraining the defendants in the first suit, i.e., Sanjay Sonavane and
Indilube, as well as all others acting on their behalf, from issuing
groundless threats of legal proceedings relating to alleged trademark
and copyright infringement against Castrol or its Indian subsidiary
Castrol India Ltd in relation to the use of the 3X mark. The order also
returned a prima facie finding that the 3X mark of Castrol did not
infringe the 3P mark of the respondents.
39. Thereafter, when the suits came up before the learned Single
Judge on 4 September 2025, the learned Single Judge queried, of
Castrol, as to whether the second suit would not be barred under Order
II Rule 2 of the CPC. Time was granted to Castrol to file a written
note of arguments in that regard and after hearing submissions of
learned Counsel for both sides, the learned Single Judge passed the
order dated 24 November 2025, against which the present appeal has
been instituted.
D. The impugned judgment Signature Not Verified Digitally Signed By:AJIT RFA(OS)(COMM) 38/2025 Page 22 of 106 KUMAR Signing Date:20.04.2026 12:39:26 I. Castrol's contentions before the learned Single Judge
40. Before the learned Single Judge, Castrol contended, relying on
Gurbux Singh v. Bhura Lal14, that a second suit would be barred
under Order II Rule 2 of the CPC only if (i) it was in respect of the
same cause of action as that which constituted the basis of the first
suit, (ii) the plaintiff was entitled to more than one relief on the basis
of that cause of action and (iii) without obtaining leave from the
Court, the plaintiff omitted to sue for all such reliefs in the first suit.
Thereafter, Castrol cited Mohamad Khalil Khan v. Mahbub Ali
Mian15 and the judgment of the Supreme Court in Coffee Board v.
Ramesh Exports Pvt. Ltd.16. Coffee Board which, it was submitted,
required, while examining a plea of want of maintainability under
Order II Rule 2 of the CPC, both plaints to be read as a whole to
identify the cause of action which the plaintiff was required to prove,
if traversed, in each case. It was only if the cause of action in both
suits were found to be identical, and the reliefs claimed in the second
suit could be claimed in the first, that the second suit would be barred
by Order II Rule 2 of the CPC. Identity of causes of action in the two
suits was also held to be mandatory in Dalip Singh v. Mehar Singh
Rathee17 for Order II Rule 2 to apply.
41. In the present case, it was asserted, the cause of action in the
14 AIR 1964 SC 1810
15 (1949) 51 Bom LR 9
16 (2014) 6 SCC 424
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two suits was completely different, though they germinated from the
same event, which was the raid conducted by the police at the
premises of Shivay Agencies consequent on the complaint in FIR
lodged by Sanjay Sonavane. Castrol, thereafter, refer to the well-
known understanding of the expression “cause of action” as
constituting the entire bundle of facts which a plaintiff would be
required to prove, if traversed by the defendant, as to enable him to
succeed in the suit and cited, in this context, Cuddalore Powergen
Corpn. Ltd. v. Chemplast Cuddalore Vinyls Ltd.18 and A.B.C.
Laminart Pvt Ltd. v. A.P. Agencies, Salem19. The appellant submitted
that the cause of action in the first suit was premised on two events.
The first event was issuance of the caution notice by Respondent 1 on
6 August 2025, and the second was the complaint filed by Respondent
1 against Castrol and Jitendra Agrawal before the Nasik Police, which
led to the raid. As against this, the cause of action for instituting the
second suit was essentially premised on events which took place
between 19 August 2025 and 29 August 2025, i.e., after the first suit
had been filed, when Castrol discovered that Sanjay Sonavane was
circulating, on WhatsApp, messages pertaining to the articles
published by Dainik Bhramar and Maharashtra Bulletin and sharing
links of the video uploaded by Saksham Police Times on YouTube.
The fact that Sanjay Sonavane had been circulating disparaging
messages on WhatsApp came to the knowledge of Castrol only
between 19 August 2025 and 29 August 2025.
17 (2004) 7 SCC 650
18 2025 SCC OnLine SC 82
19 AIR 1989 SC 1239
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42. As such, at the time of filing of the first suit, no cause of action
existed, on the basis of which Castrol could claim commercial
disparagement or tarnishment and infringement of Castrol’s mark.
43. Castrol further asserted, before the learned Single Judge, that
the first suit was only against Sanjay Sonavane and his company, and
that Dainik Bhramar, Maharashtra Bulletin and Saksham Times Media
Foundation were not defendants in the said suit. As such, Order II
Rule 2 of the CPC could not bar the filing of a separately instituted
suit against the said defendants, against whom no relief could have
been claimed in the first suit. Clearly, therefore, it was submitted, the
cause of action in the two suits were different.
44. Castrol further submitted that the reliefs claimed in the two suits
were also different. The first suit sought a declaration of non-
infringement, by Castrol, of Sanjay Sonavane’s 3P mark, in terms of
Section 142 of the Trade Marks Act and Section 60 of the Copyright
Act and a restraint against Sanjay Sonavane issuing groundless threats
against Castrol. As against that, in the second suit, Castrol sought a
decree of permanent injunction restraining Sanjay Sonavane,
Maharashtra Bulletin, Saksham Times Media Foundation and Google
from commercially disparaging Castrol, tarnishing its reputation and
infringing its trademarks.
45. Applying the law laid down by the Supreme Court in
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Cuddalore Powergen Corpn. Ltd., Rathnavathi and Anr. v. Kavita
Ganashamdas20 and Sidramappa v. Rajashetty21, the appellant
contended that it was not possible for the appellant to seek, in the first
suit, the reliefs sought in the second suit. In the absence of any
knowledge that Sanjay Sonavane was circulating any disparaging
content, it was quite obvious that Castrol could not have sought any
injunction against Sanjay Sonavane in that regard. Nor did Castrol, at
the time of institution of the first suit, possess knowledge that Sanjay
Sonavane would act in a manner which would constitute commercial
disparagement. No evidence to that effect was available, either. Had
such a cause of action been ventilated in the first suit, it could have
been dismissed solely on the ground of want of any credible evidence
to support such a case.
II. Discussions and Findings of learned Single Judge
46. Having noted the contentions of Castrol, the learned Single
Judge observes, in the impugned judgment, that, though Castrol was
aware of the media coverage of the search and seizure proceedings
which took place at the premises Shivay Agencies, it did not seek any
relief for taking down the said media coverage. Castrol had also
asserted, in the first suit, that the newspaper articles pertaining to the
seizure operation presented a misleading picture of its activities and
post a real risk of irreparably tarnishing its image. Castrol also
20 (2015) 5 SCC 223
21 AIR 1970 SC 1059
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provided the URL of the video which was uploaded on YouTube with
respect to the said seizure. The second suit was filed on 3 September
2025. The paragraph in the second suit, dealing with arising of the
cause of action, averred that the cause of action had arisen on 11
August 2025 based on the media articles and the YouTube video. The
media articles and the YouTube video were within Castrol’s
knowledge at the time of filing of the first suit, and also found
mention therein. The news articles forming subject matter of the
second suit were already annexed in the first suit. The only new
development was the forwarding, by Sanjay Sonavane, of the
YouTube video over WhatsApp on 19 August 2025, stating that more
raids were expected on the issue of copyright infringement.
47. The learned Single Judge holds that Castrol could have, in the
first suit, included the cause of action relating to disparagement and
defamation and could have incorporated the subsequent development
of forwarding of the YouTube video over WhatsApp by Sanjay
Sonavane by way of a suitable amendment. Castrol was not entitled
to, instead of doing so, file a second suit based on the same cause of
action which formed the part of the first suit. The relief for taking
down of the YouTube video and removal of the print media coverage,
which were based on the same cause of action, could well have been
sought in the first suit. Having not done so, Castrol could not institute
the second suit for the said purpose.
48. On the aspect of commonality of causes of action, the learned
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Single Judge holds that both suits arose out of the same cause of
action, which was “the search and seizure carried out on the premises
of the plaintiffs’ authorized distributor, publication of the media
reports sand YouTube video”. Despite being in possession of
knowledge of all necessary facts, and despite the relief of removal of
the allegedly disparaging news articles and YouTube video from
public access being available even at the time of the first suit, Castrol
did not choose to include these reliefs in the first suit – which may
have required impleadment of Dainik Bhramar, Maharashtra Bulletin
and Saksham Times Media Foundation – but chose, instead to divide
the reliefs into two suits. This was impermissible.
49. The learned Single Judge holds that it was not open to Castrol
to contend that the subsequent circulation of the defamatory articles
on WhatsApp by Sanjay Sonavane not having been in existence at the
time when the first suit was filed, a second suit including the said
development, could be preferred on the same cause of action.
50. Knowledge of the media coverage of the search and seizure
proceedings and the YouTube video was possessed by Castrol at the
time of filing the first suit. The circulation of the YouTube video by
Sanjay Sonavane over WhatsApp did not constitute an independent
and different cause of action for which an entirely different suit could
be filed. In fact, even in the first suit, Castrol had pleaded that the
news articles were at the behest of Sanjay Sonavane.
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51. Based on this reasoning, the learned Single Judge has dismissed
the second suit as barred by Order II Rule 2 of the CPC.
E. Rival Submissions
I. Submissions of Mr. Urfee Roomi
52. Arguing for Castrol, Mr. Urfee Roomi submits that the cause of
action, as also the dates of filing of the two suits, were different, with
the first suit having been filed on 17 August 2025 and the second on 3
September 2025. The first suit had been issued for an injunction
against groundless threats held out by Sanjay Sonavane, and there was
no occasion, therefore, to implead Dainik Bhramar, Maharashtra
Bulletin or Saksham Times Media as defendants therein. Moreover, at
the time of filing the first suit, Castrol had no knowledge of the
involvement of Sanjay Sonavane in dissemination of the content
which was defamatory to Castrol.
53. The facts which constituted the cause of action for the first suit,
submits Mr. Roomi, were the caution notice issued by Sanjay
Sonavane on 6 August 2025, and the complaint filed by Sanjay
Sonavane with the Police, resulting in the raid on Shivay Agencies on
9 August 2025. Even if were to be presumed that Castrol had
knowledge of its disparagement by Dainik Bhramar, Maharashtra
Bulletin and Saksham Times Media, Mr. Roomi submits that it would
make no difference, as knowledge of the facts relating to the second
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suit, at the time of filing the first, does not attract the proscription
under Order II Rule 2. The cause of action for alleging dilution of its
reputation and disparagement arose, in favour of Castrol and against
Sanjay Sonavane, Dainik Bhramar, Maharashtra Bulletin and
Saksham Times Media, after the first suit had been filed. He draws
attention to para 10 of the impugned judgment, which notes the fact
that it was on 19 August 2025 that Castrol discovered that Sanjay
Sonavane had been sharing disparaging and defamatory messages on
the Whatsapp group Experts @ Lubricants.
54. To support his submissions, Mr. Roomi relies on paras 10 and
11 of Coffee Board, paras 22 to 25.2 of Rathnavathi and paras 47 and
72 to 74 of Cuddalore Powergen Corpn. He also draws attention to
the paragraphs, in the plaints in the two suits, which set out the cause
of action for filing them, to emphasize that the causes of action were
distinct and different.
II. Submissions of Mr. Ramanujan
55. Responding, for the respondents, to the submissions of Mr
Roomi, Mr. Ramanujan draws our attention to paras 36 to 38, from the
plaint in the first suit, which allege that, within a day or two of the
seizure which took place at the premises of Shivay Agencies, articles
relating thereto were circulated in newspapers in Maharashtra and a
news report was also uploaded on YouTube by Maharashtra Bulletin.
Any person who viewed these articles or the uploaded news clip,
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alleged the plaint, would be led to assume that Shivay Agencies was
selling counterfeit Castrol products. Given the undue haste with
which the news articles and reports were released, the plaint also
alleged that “it would not be too far-fetched to assume … that these
news articles have also been published at the behest of Sanjay
Sonavane. Juxtaposing these paragraphs with para 52 in the second
suit, which set out the cause of action therein, Mr. Ramanujan submits
that there was clear overlap of causes of action. He submits that, in
these circumstances, Order II Rule 2(2) would, in any case, apply.
Asserting that the facts pleaded in the first suit would also sustain a
claim of disparagement, if proved to be true, Mr. Ramanujan submits
that the learned Single Judge was perfectly correct in observing that
Castrol could not choose to break up its claims into two suits, without
seeking leave under Order II Rule 2(3). Mr Ramanujan relies on paras
9 and 15 of Coffee Board and para 7 of Sidramappa. Rathnavathi, in
his submission, does not really address the issue.
56. To a query from the Court as to whether a mere reference to the
facts which could sustain the relief claimed in the second suit, in the
plaint in the first, would suffice to bar the second suit under Order II
Rule 2, if those facts were not part of the cause of action on which the
first suit was based, Mr. Ramanujan answers in the affirmative. The
cause of action, he submits, depends on the facts pleaded and if,
therefore, the facts pleaded in the first suit could sustain the prayers in
the second, there was identity of causes of action between them. He
also relies on paras 44 and 72 to 74 of Cuddalore Powergen Corpn.
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57. Mr. Ramanujan submits that, having pleaded loss to its
reputation as a consequence of the allegedly defamatory or
disparaging news items and YouTube video in para 9 of the plaint in
the first suit, Castrol could not institute a second suit for the reliefs
which could be claimed on the basis of those facts. He also places
reliance, for this purpose, on para 9 of Virgo Industries (Eng) (P) Ltd
v. Venturetech Solutions (P) Ltd22.
58. In these circumstances, Mr. Ramanujan’s submission is that the
impugned judgment of the learned Single Judge is unexceptionable,
on facts as well as in law.
III. Submissions of Mr. Roomi in rejoinder
59. In rejoinder, Mr. Roomi submits that disparagement by Sanjay
Sonavane occurred only on 19 August 2025, even if Dainik Bhramar,
Maharashtra Bulletin and Saksham Times Media Foundation may
have indulged in disparaging activities even prior to the institution of
the first suit. Besides, he submits that Section 142 is directed against
a threatener, not against one who disparages or defames. Castrol
could not, therefore, at the time of filing the first suit, sued Sanjay
Sonavane for disparagement.
60. Mr. Roomi therefore reiterates his prayer that the impugned
22 (2013) 1 SCC 625
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judgment be quashed and set aside, and the second suit be restored to
the file of the learned Single Judge for further proceedings.
F. Analysis
I. The Issue
61. A reading of the paragraphs, from the judgment of the learned
Single Judge, extracted above, reveal that it proceeds on the premise
that the cause of action, for the first suit and the second suit, were the
same, and that as the appellant was aware of the facts which
constituted the cause of action even at the time of filing the first suit,
all claims, which could be based on said cause of action, were
required to be raised in the first suit, thereby rendering the second suit
not maintainable. Additionally, the impugned judgment holds that the
fact that Sanjay Sonavane circulated the disparaging news items and
YouTube videos via WhatsApp after the first suit had been filed would
not be sufficient to maintain the second suit, as these further
developments could always be introduced in the first suit by way of
amendment. Liberty has, therefore, been granted, to the appellant to
do so.
II. The law
62. To test the correctness of these findings, we are of the view that
it would be apt, first, to read Order II Rule 2 – following the truism
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that the best guide to the meaning of a statute is the statute itself – and,
thereafter, examine how the provision has been accorded apical
interpretation.
63. Sub-rule (2) of Order II Rule 2 does not concern us.
64. Order II Rule 2(1) requires every suit to include the whole of the
claim which the plaintiff can make in respect of the cause of action. A
plaintiff may relinquish part of the claim to bring the suit within
jurisdiction, but that part of the sub-Rule, too, does not concern us.
65. It is pivotal, therefore, to understand what constitutes the cause
of action, as it is only then that the Court can ascertain the extent and
entirety of the claim which could be made in respect thereof. Order II
Rule 2(1) requires that entire claim to be claimed in one suit.
66. The “cause of action” plays an equally pivotal role in Order II
Rule 2(3). If one cause of action entitles the plaintiff to more than one
relief, he is bound to sue for all reliefs in one suit. Failure to do so
would disentitle him, later, to sue for the omitted relief.
67. Thus, once again, the “cause of action” in the first suit has to be
identified, to ascertain the reliefs to which the plaintiff would be
entitled on the basis thereof, and, therefore, whether he has in fact
sued for all such reliefs in the first instance.
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68. All, therefore, turns on the “cause of action” – in this case, the
cause of action for instituting CS (Comm) 855/2025.
69. Though the position in law appears to be well-settled, it would
be instructive to refer to some of the authoritative pronouncements of
the Supreme Court on Order II Rule 2, its scope and its ambit.
70. Gurbux Singh
70.1 Gurbux Singh v. Bhooralal23, having been rendered by a
Constitution Bench, may justifiably be said to be the most
authoritative decision on the point.
70.2 Bhooralal sued Gurbux Singh24 in respect of property over
which he claimed absolute ownership. It was alleged that Gurbux was
in unauthorised occupation and possession of the said property and
had failed to vacate it despite efforts by Bhooralal. Bhooralal,
therefore, sought a decree directing Gurbux to vacate the property and
pay mesne profits. In the plaint, Bhooralal disclosed the fact that he
had earlier filed a suit in respect of the same property for recovery of
mesne profits for the period ending 10 February 1950, which had been
decreed. Gurbux, in the written statement, pleaded that the second suit
was barred by Order II Rule 2 of the CPC, in view of the first suit. An
issue was, therefore, framed as to whether the second suit was barred
23 AIR 1964 SC 1810
24 “Gurbux” hereinafter
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by Order II Rule 2. The Trial Court decided the issue in the
affirmative and dismissed the second suit. The First Appellate Court
held that, for want of material, the issue relating to Order II Rule 2
ought not to have been decided at all, even while observing that, had it
come up for adjudication, it ought to have been decided in favour of
Bhooralal, as a cause of action in the two suits were different. The
High Court dismissed the second appeal preferred by Gurbux. Gurbux
appealed to the Supreme Court.
70.3 In view of the fact that there appeared to be a conflict of
opinion on the aspect of whether a suit for possession of immovable
property and a suit for mesne profits could be treated as emanating
from the same cause of action, so as to attract Order II Rule 2, the
matter was referred to the Constitution Bench. The fact that the
difference of opinion existed stands reflected in para 4 of the judgment
of the Constitution Bench, thus:
“As already indicated, there is a conflict of judicial opinion on the
question whether a suit for possession of Immovable property and
a suit for the recovery of mesne profits from the same property are
both based on the same cause of action, for it is only if these two
reliefs are based on “the same cause of action” that the plea of O.
2, r. 2, Civil Procedure Code that was raised by the appellant could
succeed.”
70.4 The Constitution Bench ultimately agreed with the decision of
the First Appellate Court that, for want of adequate material, the plea
that the second suit was barred by Order II Rule 2 ought not to have
been decided and, therefore, also agreed with the decision to remand
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the matter back to the Trial Court for adjudication on merits. While
doing so, however, the Constitution Bench returned certain
illuminating observations regarding the scope and ambit of Order II
Rule 2(3) which have, since, been followed in case after case:
“6. In order that a plea of a bar under O. 2. r. 2(3), Civil
Procedure Code should succeed the defendant who raises the plea
must make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based, (2)
that in respect of that cause of action the plaintiff was entitled to
more than one relief, (3) 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. From
this analysis it would be seen that the defendant would have to
establish primarily and to start with, the precise cause of action
upon which the previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit was filed and
that on which the claim in the later suit is based there would be no
scope for the application of the bar. No doubt, a relief which is
sought in a plaint could ordinarily be traceable to a particular cause
of action but this might, by no means, be the universal rule.
7. … As the plea is basically founded on the identity of the
cause of action in the two suits the defence which raises the bar
has necessarily to establish the cause of action in the previous suit.
The cause of action would be the facts which the plaintiff had then
alleged to support the right to the relief that he claimed. Without
placing before the Court the plaint in which those facts were
alleged, the defendant cannot invite the Court to speculate or infer
by a process of deduction what those facts might be with reference
to the reliefs which were then claimed. It is not impossible that
relies were claimed without the necessary averments to justify their
grant. From the mere use of the words ‘mesne profits’ therefore one
need not necessarily infer that the possession of the defendant was
alleged to be wrongful. It is also possible that the expression
‘mesne profits’ has been used in the present plaint without a proper
appreciation of its significance in law. What matters is not the
characterization of the particular sum demanded but what in
substance in the allegation on which the claim to the sum was
based and as regards the legal relationship on the basis of which
that relief was sought. If is because of these reasons that we
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cannot be entertained when the pleading on which it rests has not
been produced. We therefore consider that the order of remand
passed by the learned Additional Distract Judge which was
confirmed by the learned Judge in the High Court was right. The
merits of the suit have yet to be tried and this has been directed by
the order of remand which we are affirming.”
70.5 All, therefore, turns on the “cause of action”. Both suits must
be based on the same cause of action, for Order II Rule 2(3) to apply.
The “cause of action”, in turn, constitutes “the facts which the
plaintiff had alleged to support the right to the relief that he claimed”.
Identification of the cause of action is, therefore, intrinsically linked
with the relief claimed by the Plaintiff.
70.6 One cannot identify the “cause of action”, innocent of the relief
claimed in the plaint. It is first, therefore, necessary to advert to the
relief that the plaintiff seeks. Once the relief is identified, the facts
which the plaintiff alleges to support the relief would constitute
“cause of action”. It is only if the facts which are necessary for the
plaintiff to be entitled to the relief claimed in the first suit are identical
to the facts which are necessary for the reliefs claimed in the second
suit that there would be identity of cause of action, so as to invoke
Order II Rule 2(3) of the CPC. The onus, in this regard, is on the
defendant.
71. Sidramappa
71.1 The lis, in this case, pertained to properties which belonged to
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the family of one V.R. Deshmukh, who died in 1892, leaving behind
his widow Ratnabai and his daughter Lakshmibai. Ratnabai died in
1924. Lakshmibai, thereupon, became entitled to the suit properties.
However, one Parwatibai came into unlawful possession thereof.
Lakshmibai instituted a suit for recovery of the possession of the suit
properties which was decreed. In execution, delivery of the suit
properties was handed over to Lakshmibai.
71.2 Lakshmibai and Parwatibai both died. Rajashetty, claiming to
be the sister’s son of Deshmukh, got himself impleaded in the
execution proceedings as the legal representative of Lakshmibai and
sought delivery of the suit properties. One Vishwanath, purportedly
the legal representative of Parwatibai, also got himself impleaded in
the execution proceedings. Rajashetty and Vishwanath entered into a
compromise, whereunder Vishwanath delivered the possession of the
suit properties to Rajashetty.
71.3 Thereafter, Sidramappa, the appellant before the Supreme Court
applied for reopening of the execution proceedings, stating that he
was the adopted son of Lakshmibai and, therefore, her competent
legal representative. The executing court dismissed the application
relegating Sidramappa to a separate suit. Sidramappa, therefore, filed
a suit before the Subordinate District Judge for a declaration that he
was entitled to be impleaded in the execution proceedings as the legal
representative of Lakshmibai and for setting aside the order made by
the executing court based on the compromise between Rajashetty and
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Vishwanath. This was the only relief sought by Sidramappa in his
suit. The cause of action was identified, in the suit, as the dismissal of
Sidramappa’s application for impleading in the execution
proceedings.
71.4 Sidramappa’s suit was dismissed on the ground that it was
barred under Section 42 of the Specific Relief Act, 1963, as
Sidramappa had not sued for possession of the property.
71.5 Sidramappa, thereafter, instituted a second suit on the basis of
title. This suit was dismissed by the trial court on the ground that the
relief sought was barred by Order II Rule 2 of the CPC. It was, thus,
that the issue of Order II Rule 2 came up for consideration.
71.6 The decision of the trial court was affirmed by the High Court,
against which Sidramappa carried the matter to the Supreme Court.
71.7 The Supreme Court identified, in para 5 of the report, the only
question arising for consideration as being “whether the High Court
and the trial court were right in their conclusions that the plaintiff’s
claim in respect of the lands … is barred by Order II Rule 2 of the
CPC.
71.8 The Supreme Court answered the question thus:
“7. The High Court and the trial court proceeded on the
erroneous basis that the former suit was a suit for a declaration of
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plaint. The requirement of Order II Rule 2, Code of Civil
Procedure 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. “Cause of action” means the “cause of action for which the
suit was brought”. It cannot be said that the cause of action on
which the present suit was brought is the same as that in the
previous suit. Cause of action is a cause of action which gives
occasion for and forms the foundation of the suit. If that cause of
action enables a person to ask for a larger and wider relief than
that to which he limits his claim, he cannot afterwards seek to
recover the balance by independent proceedings — see Mohd.
Hqfiz v. Mohd. Zakaria25.
8. As seen earlier the cause of action on the basis of which the
previous suit was brought does not form the foundation of the
present suit. The cause of action mentioned in the earlier suit,
assuming the same afforded a basis for a valid claim, did not
enable the plaintiff to ask for any relief other than those he prayed
for in that suit. In that suit he could not have claimed the relief
which he seeks in this suit. Hence the trial court and the High
Court were not right in holding that the plaintiff’s suit is barred by
Order II, Rule 2, Code of Civil Procedure.”
71.9 Significantly, in this case, the Supreme Court clarified that the
“cause of action” would be the “cause of action for which the suit was
brought”. Further, it observed that the cause of action was that which
gave occasion for, and formed the foundation, of the suit. Once the
cause of action was identified, Order II Rule 2 of the CPC requires the
suit to include the entire claim to which the plaintiff is entitled in
respect of that cause of action. If the plaintiff does not do so, and
restricts his claim in the suit only to part of the relief which he could
obtain on the basis of the cause of action, the plaintiff is barred from
filing a second suit for the balance.
25 1922 LR 49 IA 9
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71.10 When one reads this judgment in juxtaposition with Gurbux
Singh, the position that emerges is that the court has to advert to the
relief in the first suit and identify the facts which the plaintiff would
have to plead and establish in order to be entitled to that relief. If, on
those facts, the plaintiff is entitled to a greater relief, he cannot
separately sue for the balance.
71.11 Applying this principle to the facts before it, the Supreme Court
held that the cause of action in the first suit filed by Sidramappa was
not the foundation of the second suit. The course of action of the first
suit did not entitle Sidramappa to claim any relief in excess of that
which he had claimed in the first suit. The relief sought in the second
suit could not be claimed on the basis of the cause of action pleaded in
the first suit. Ergo, it was held that the second suit was not barred by
Order II Rule 2 of the CPC.
72. Deva Ram v. Ishwar Chand26
72.1 Ishwar Chand’s father, Padam Ram, instituted a suit for
recovery of ₹ 6,300/- as sale price of land sold by him to Deva Ram. It
was asserted, in the suit, that Deva Ram had promised to pay the said
amount on 11 November 1976 but failed to do so. The suit was
dismissed by the trial court holding that the agreement between Deva
Ram and Padam Ram was without consideration and hit by Section 91
of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.
26 (1995) 6 SCC 733
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Additionally, it was held by the trial court that Deva Ram was the
tenant in respect of the suit land. The decision of the trial court was
upheld by the Additional District Judge27 in appeal. The ADJ also
held that the suit land had not been sold by Padam Ram to Deva Ram
and that, therefore, there was no question of Padam Ram being
entitled to recover any amount as sale price in respect thereof. The
agreement between Padam Ram and Deva Ram was held to be a mere
agreement to sell and not a sale deed. However, it was also held, by
the ADJ, that Deva Ram had failed to prove that he was the tenant of
Padam Ram. Padam Ram instituted a second suit against Deva Ram
for possession of the suit land on the basis of title, in which he relied
on the finding of the learned ADJ, in the first suit, that Deva Ram had
not succeeded in proving that he was a tenant in respect of the suit
land. As such, asserting ownership over the suit land, Padam Ram
sought recovery of possession in respect thereof.
72.2 The second suit was dismissed by the trial court as barred under
Order II Rule 2. The decision of the trial court was reversed by the
District Judge in appeal. A second appeal, preferred by Deva Ram
before the High Court of Himachal Pradesh was also dismissed. Deva
Ram, therefore, moved the Supreme Court.
72.3 Adverting to the issue in controversy, the Supreme Court
placed reliance on Sidramappa and further observed and held as
under:
27 “the ADJ” hereinafter
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“12. A bare perusal of the above provisions would indicate that
if a plaintiff is entitled to several reliefs against the defendant in
respect of the same cause of action, he cannot split up the claim so
as to omit one part of the claim and sue for the other. If the cause of
action is the same, the plaintiff has to place all his claims before
the court in one suit as Order 2 Rule 2 is based on the cardinal
principle that the defendant should not be vexed twice for the same
cause.
13. In Naba Kumar Hazra v. Radhashyam Mahish28, it was
laid down that the plaintiff cannot be permitted to draw the
defendant to court twice for the same cause by splitting up the
claim and suing, in the first instance, in respect of a part of claim
only.
14. What the rule, therefore, requires is the unity of all claims
based on the same cause of action in one suit. It does not
contemplate unity of distinct and separate causes of action. If,
therefore, the subsequent suit is based on a different cause of
action, the rule will not operate as a bar. (See Arjun Lal
Gupta v. Mriganka Mohan Sur29; State of M.P. v. State of
Maharashtra30; Kewal Singh v. B. Lajwanti31).
*****
16. In view of the above, what is to be seen in the instant case is
whether the cause of action on the basis of which the previous suit
was filed, is identical to the cause of action on which the
subsequent suit giving rise to the present appeal, was filed. If the
identity of causes of action is established, the rule would
immediately become applicable and it will have to be held that
since the relief claimed in the subsequent suit was omitted to be
claimed in the earlier suit, without the leave of the court in which
the previous suit was originally filed, the subsequent suit for
possession is liable to be dismissed as the appellants, being the
defendants in both the suits, cannot be vexed twice by two separate
suits in respect of the same cause of action.
17. We have already noticed in the earlier part of the judgment
that the previous suit was filed for recovery of a sum of Rs 6300 as
28 AIR 1931 PC 229
29 (1974) 2 SCC 586
30 (1977) 2 SCC 288
31 (1980) 1 SCC 290
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sale price of the land in suit which was dismissed with the finding
that the document on which the suit was filed was not a sale deed
but was a mere agreement for sale and, therefore, the amount in
question could not be recovered as sale price. That document, thus,
constituted the basis of the suit.
18. The subsequent suit was brought by the respondents for
recovery of possession on the ground that they were the owners of
the land in suit and were consequently entitled to recover its
possession. The cause of action in the subsequent suit was,
therefore, entirely different. Since the previous suit was for
recovery of sale price, the respondents could not possibly have
claimed the relief of possession on the basis of title as title in that
suit had been pleaded by them to have been transferred to the
defendants (appellants). The essential requirement for the
applicability of Order 2 Rule 2, namely, the identity of causes of
action in the previous suit and the subsequent suit was not
established. Consequently, the District Judge as also the High
Court were correct in rejecting the plea raised by the appellants
with regard to Order 2 Rule 2 of the Civil Procedure Code.”
(Emphasis supplied)
72.4 Here, therefore, the Supreme Court once again ruled that
identity of cause of action in the two suits was the sine qua non for
Order II Rule 2 to apply, as the prevailing philosophy behind Order II
Rule 2 was that a defendant should not be vexed twice for the same
cause. Reliance was placed on the judgment of the Privy Council in
Naba Kumar Hazra v. Radhashyam Mahish32 which held that a
plaintiff could not split up the claims to which he would be entitled if
he succeeded in establishing the cause of action and claim part of his
reliefs in one suit and part in another. The Supreme Court held that,
therefore, Order II Rule 2 required that all claims, based on the cause
of action in a suit, be claimed in that suit.
32 AIR 1931 PC 229
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72.5 However, if the second suit was based on a different cause of
action, Order II Rule 2 would not apply. Order II Rule 2 required all
claims based on one cause of action to be consolidated in one suit and
not consolidation of different causes of action. If the second suit was
based on a different cause of action, therefore, it would lie, and Order
II Rule 2 would not be applicable.
72.6 Applying these principles to the facts before it, the Supreme
Court held that the causes of action on the basis of which the two suits
had been instituted by Padam Ram were totally different. The first suit
was for recovery of ₹ 6300/- as sale price of the suit land. The suit
was based on a document which Padam Ram claimed to be a sale
deed, but which was held, by the court, to be merely an agreement to
sell. As against this, the second suit was for recovery of possession.
In the second suit, Padam Ram claimed ownership over the suit land
and predicated his claim of ownership and sought recovery of
possession.
72.7 Thus, held the Supreme Court, the cause of action in the two
suits was completely different.
72.8 As the first suit was for recovery of sale price, Padam Ram
could not have sought a relief of possession on the basis of title. The
essential prerequisite of Order II Rule 2, namely, identity of the
causes of action in the two suits being absent, the Supreme Court held
that the ADJ, and the High Court, had erred in dismissing the second
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suit as barred by Order II Rule 2 of the CPC.
72.9 It is significant to note that, in this case, the importance of the
relief claimed in the suits is tellingly underscored. The causes of
action have been held to be different, essentially because the reliefs
claimed were different. In the first suit, Padam Chand claimed
recovery of sale price. In the second suit, he claimed recovery of
possession. The reliefs being different, the facts on which the suits
were predicated and which, therefore, constituted the causes of action
were also different. The first suit being a suit for recovery of the
purported sale price of ₹ 6,300, the fact pleaded was the execution of
the document claimed by Padam Ram to be a sale deed. The second
suit being a suit for recovery based on title, the fact pleaded was
ownership by Padam Ram over the suit land.
72.10 Thus, working back from the reliefs claimed in the suits, the
Supreme Court held that the causes of action on which the two suits
had been instituted were totally different and, therefore no identity of
causes of action being in existence, the second suit could not be said
to be barred under Order II Rule 2 of the CPC.
73. Ram Prasad Rajak v. Nand Kumar and Bros33.
73.1 Ram Prasad Rajak34 was the landlord of a shop constituting the
33 (1998) 6 SCC 748
34 “Rajak” hereinafter
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suit property. Nand Kumar & Bros35 were the tenants. Rajak filed an
eviction suit before the Munsif for evicting Nand Kumar on the
ground of non-payment of rent and bona fide personal requirement.
The suit was dismissed. Rajak filed an appeal which was also
dismissed, against which he filed a second appeal.
73.2 During the pendency of the second appeal, Rajak instituted a
second suit under Section 14 of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 198236, again seeking eviction of Nand Kumar
on the ground of bona fide requirement for personal occupation. The
second suit was also dismissed. However, Rajak succeeded in appeal
and an eviction decree was issued against Nand Kumar.
73.3 Nand Kumar filed a civil revision, challenging the eviction
decree. The civil revision was allowed by the High Court on the
ground that the second eviction suit filed by Rajak was barred inter
alia under Order II Rule 2 of the CPC. Aggrieved thereby, Rajak
appealed to the Supreme Court.
73.4 There is no detailed reasoning, in the judgment of the Supreme
Court, with respect to Order II Rule 2. However, in para 5 of the
report, the Supreme Court has found “that the cause of action for the
second suit is entirely different from the cause of action for the earlier
suit and there is no chance of Order II Rule 2 barring this suit”.
35 “Nand Kumar” hereinafter
36 “the 1982 Act”
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73.5 This finding is significant, especially keeping in mind the fact
that both the suits were instituted by Rajak seeking eviction of Nand
Kumar from the suit property, and in both suits, bona fide personal
requirement was cited as a ground. The difference appears to have
been that the first suit was filed under the general law of eviction
whereas the second suit was filed under Section 14 of the 1982 Act.
73.6 At the very least, this decision underscores the attitude to be
adopted by the Court in such cases, which is ordinarily to lean
towards maintainability, rather than evisceration, of the suit.
74.1 These proceedings, again, emanated from an eviction suit.
Rikabdas Oswal38 filed a suit for eviction of Deepak Jewellers from
the suit property on the ground of bona fide need and subletting. That
suit was dismissed. During the pendency of the appeal against the
dismissal order before the Appellate Authority, Oswal filed a second
suit for eviction of Deepak Jewellers on the ground of default in
payment of rent, even after due notice under Section 12(2) of the
Bombay Rent Act had been served on him. No plea, that the second
suit was barred under Order II Rule 2 of CPC, was taken by Deepak
Jewellers in the written statement. The trial court allowed the second
37 (1999) 6 SCC 40
38 “Oswal” hereinafter
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suit and directed eviction of Deepak Jewellers from the suit property.
74.2 Deepak Jewellers appealed against the eviction order. The
appeal was dismissed. Deepak Jewellers thereupon filed an
application for review of the order of dismissal. Order II Rule 2 of the
CPC was not invoked even in the review application. However, as
there was an averment, in the review application, to the effect that
Deepak Jewellers was in arrears of rent had been taken by Oswal in
the first suit, the District Judge allowed the review application of
Deepak Jewellers, holding that the second suit was barred by Order II
Rule 2 of the CPC. Oswal filed a revision petition in the High Court,
which was dismissed. Oswal appealed to the Supreme Court.
74.3 The Supreme Court answered the issue thus:
“5. The District Judge, while reviewing the earlier order passed
in appeal as well as the High Court appear to have taken the view
that in the earlier proceedings, the application for eviction was also
on the ground of default of rent. But, having examined the
assertions made in the plaint itself, it is difficult for us to hold that
in the earlier round of litigation, the landlord did make any prayer
for eviction on the ground that there has been an arrear of rent. On
the other hand, the factual assertions having been made about the
arrears of rent dues, the plaintiff having averred that he is not
making any claim for arrears, we fail to understand how an issue
could be raised on that score or any finding thereon arrived at by
the forum below can be pleaded as a bar in the subsequent suit. Be
that as it may, the tenant respondent not having taken the plea of
bar of subsequent suit under Order 2 Rule 2 CPC in the written
statement itself nor even in the grounds of appeal before the
appellate authority while preferring the appeal and also in the
application for review, the learned District Judge could not have
entertained the plea of bar of the subsequent proceedings on
account of Order 2 Rule 2 CPC and decided the same. Even on
merits, we are of the considered opinion that the provisions of
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circumstances of the present case, as already narrated. The High
Court, therefore, committed error in dismissing the revision of the
present appellant. We, accordingly, set aside the impugned order of
the High Court in revision as well as the order of the District Judge
passed in review.”
(Emphasis supplied)
74.4 This decision is also of considerable significance. The Supreme
Court, once again, adverted to the basis on which two suits have been
instituted, to hold that Order II Rule 2 did not apply. Oswal had not
sought eviction of Deepak Jewellers in the first suit on the ground that
Deepak Jewellers was in arrears of rent. Even though the fact that
Deepak Jewellers was in arrears of rent was mentioned in the first
suit, Oswal specifically stated that he was not claiming the arrears. In
such circumstances, the Supreme Court held that Order II Rule 2 of
the CPC would not apply.
74.5 Like Ram Prasad Rajak, this again is a case in which both the
suits sought eviction of the tenant from the suit property. The only
distinction was that eviction was sought on different grounds. This
difference has been treated as sufficient to make out a difference in
cause of action of two suits, so as to hold that the second suit was not
barred under Order II Rule 2 of the CPC. Expressed otherwise, if the
landlord is entitled to seek eviction of the tenant on various grounds, a
first suit which seeks eviction on one ground cannot bar a second suit,
seeking eviction on another ground, even if there is an allusion, to the
facts on the basis of which the second suit is founded, in the first. The
intrinsic interlink between the relief sought and the facts pleaded, so
as to determine whether there is identity of causes of action in the two
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suits is, therefore, again highlighted in Rikabdas Oswal.
75. Kunjan Nair Sivaraman Nair v. Narayanan Nair39.
75.1 This again was a suit for recovery of possession on the basis of
title. Seven plaintiffs instituted a suit seeking recovery of possession
against various defendants, of which Kunjan Nair Sivaraman Nair40
was Defendant 1. The seven plaintiffs alleged that the suit property
belonged to their father Narayanan Nair and that they were the only
legal heirs of Narayanan Nair.
75.2 Prior thereto, the same seven plaintiffs had instituted an earlier
suit41, seeking a decree of declaration of right and title to the suit
property and to the possession thereof. That suit was dismissed, and
an appeal preferred against the dismissal was also rejected. The
second suit was filed thereafter, seeking recovery of possession
against Kunjan and other defendants.
75.3 Kunjan claimed that the second suit was barred by Order II
Rule 2 of the CPC. This plea was rejected by all courts below, the
Supreme Court, holding that the first suit was for title and injunction,
whereas the second suit was for recovery of possession and that,
therefore, the causes of action in the two suits were different, thereby
negativing any possibility of application of Order II Rule 2.
39 (2004) 3 SCC 277
40 “Kunjan” hereinafter
41 “the first suit” hereinafter
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75.4 Kunjan appealed to the Supreme Court. Referring inter alia to
the decision of the Constitution Bench in Gurbux Singh, the Supreme
Court dealt with the issue before it thus:
“8. … A Constitution Bench of this case of Gurbux
Singh v. Bhooralal in this connection has laid down as under:
“6. In order that a plea of a bar under Order 2 Rule 2(3),
Civil Procedure Code should succeed the defendant who
raises the plea must make out (1) that the second suit was in
respect of the same cause of action as that on which the
previous suit was based; (2) that in respect of that cause of
action the plaintiff was entitled to more than one relief; (3)
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. From this
analysis it would be seen that the defendant would have to
establish primarily and to start with, the precise cause of
action upon which the previous suit was filed, for unless
there is identity between the cause of action on which the
earlier suit was filed and that on which the claim in the later
suit is based there would be no scope for the application of
the bar. No doubt, a relief which is sought in a plaint could
ordinarily be traceable to a particular cause of action but
this might, by no means, be the universal rule. As the plea
is a technical bar it has to be established satisfactorily and
cannot be presumed merely on basis of inferential
reasoning. It is for this reason that we consider that a plea
of a bar under Order 2 Rule 2, Civil Procedure Code 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. It is
common ground that the pleadings in CS No. 28 of 1950
were not filed by the appellant in the present suit as
evidence in support of his plea under Order 2 Rule 2, Civil
Procedure Code. The learned trial Judge, however, without
these pleadings being on the record inferred what the cause
of action should have been from the reference to the
previous suit contained in the plaint as a matter of
deduction. At the stage of the appeal the learned District
Judge noticed this lacuna in the appellant’s case and pointed
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previous suit being on the record, a plea of a bar under
Order 2 Rule 2, Civil Procedure Code was not
maintainable.”
*****
10. Order 2 Rule 2 sub-rule (3) requires that the cause of
action in the earlier suit must be the same on which the subsequent
suit is based. Therefore, there must be identical cause of action in
both the suits, to attract the bar of Order 2 sub-rule (3). The
illustrations given under the rule clearly brings out this position.
Above is the ambit and scope of the provision as highlighted
in Gurbux Singh case by the Constitution Bench and in Bengal
Waterproof Ltd42. 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
indicted in successive litigations. It is, therefore, provided that the
plaintiff must not abandon any part of the claim without the leave
of the court and must claim the whole relief or entire bundle of
reliefs available to him in respect of that very same cause of action.
He will thereafter be precluded from so doing in any subsequent
litigation that he may commence if he has not obtained the prior
permission of the court.
*****
15. The doctrine of res judicata differs from the principle
underlying Order 2 Rule 2 in that the former places emphasis on
the plaintiff’s duty to exhaust all available grounds in support of his
claim, while the latter requires the plaintiff to claim all reliefs
emanating from the same cause of action. Order 2 concerns
framing of a suit and requires that the plaintiffs shall include
whole of his claim in the framing of the suit. Sub-rule (1), inter
alia, provides that every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the very same
cause of action. If he relinquishes any claim to bring the suit within
the jurisdiction of any court, he will not be entitled to that relief in
any subsequent suit. Further sub-rule (3) provides that the person
entitled to more than one reliefs 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 such relief he shall not
afterwards be permitted to sue for relief so omitted.
16. The expression “cause of action” has acquired a judicially
42
(1997) 1 SCC 99
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settled meaning. In the restricted sense cause of action means the
circumstances forming the infraction of the right or the immediate
occasion for the action. In the wider sense, it means the necessary
conditions for the maintenance of the suit, including not only the
infraction of the right, but the infraction coupled with the right
itself. Compendiously the expression means every fact which would
be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. Every fact which is
necessary to be proved, as distinguished from every piece of
evidence which is necessary to prove each fact, comprises in
“cause of action”.
17. In Halsbury’s Laws of England (4th Edn.)43 it has been
stated as follows:
” ‘Cause of action’ has been defined as meaning simply a
factual situation the existence of which entitles one person
to obtain from the court a remedy against another person.
The phrase has been held from earliest time to include
every fact which is material to be proved to entitle the
plaintiff to succeed, and every fact which a defendant would
have a right to traverse. ‘Cause of action’ has also been
taken to mean that particular act on the part of the
defendant which gives the plaintiff his cause of complaint,
or the subject-matter of grievance founding the action, not
merely the technical cause of action.”
18. As observed by the Privy Council in Payana Reena
Saminathan v. Pana Lana Palaniappa44the rule is directed to
securing the exhaustion of the relief in respect of a cause of action
and not to the inclusion in one and the same action of different
causes of action, even though they arise from the same transaction.
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.
(See Mohd. Khalil Khan v. Mahbub Ali Mian).
19. In Inacio Martins v. Narayan Hari Naik45 an almost
identical question arose. In that case, the plaintiff had prayed for
protection of his possession by a prohibitory injunction. That
prayer was refused. Subsequent suit was for recovery of
possession. This Court held that in the former suit the only relief
that the Court could have granted was in regard to the declaration
43 “Halsbury” hereinafter
44 (1914) 41 IA 142
45 (1993) 3 SCC 123
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sought for which the Court could not have granted in view of the
provisions of the Specific Relief Act. The cause of action for the
first suit was based on the apprehension about likely forcible
dispossession. The cause of action of the suit was not on the
premise that he had, in fact, been illegally and forcefully
dispossessed and needed the courts’ assistance for restoration of
possession. In that background this Court held that subsequent suit
was based on a distinct cause of action not found in or formed the
subject-matter of the former suit. The ratio of the decision has full
application to the facts of the present case.
20. In Deva Ram case it was held that where the previous suit
was for recovery of loan which was dismissed on the ground that
the document on the basis of which the suit was filed was not a sale
deed but agreement for sale, subsequent suit for recovery of
possession on the basis of title was not hit by Order 2 Rule 2 as the
cause of action in the two suits were not identical or one and the
same.
21. The courts below were, therefore, justified in holding that
Order 2 Rule 2 of the Code had no application to the facts of the
case. Consequently, the decree passed in favour of the plaintiffs for
recovery of possession shall stand affirmed and the appeal to that
extent shall stand dismissed.”
75.5 This decision, once again, emphasizes the requirement of
identity of causes of action in the two suits for Order II Rule 2 to
apply and determination of the cause of action, based on the relief
claimed in the suit. If the causes of action are identical, and the relief
claimed in the second suit is available to the plaintiff based on the said
cause of action, the second suit would be barred, unless leave of the
court had been obtained before filing the second suit.
75.6 Notably, the Supreme Court has dwelt at some length on the
scope and ambit of the expression “cause of action”. It has been held
that, compendiously, the expression “course of action” means every
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fact which a plaintiff has to prove in order to support his right to the
reliefs claimed in the suit. There is a distinction between every fact
which is required to be proved and every piece of evidence which is
necessary to prove the said facts. The Supreme Court has also noted
the definition of “cause of action” in Halsbury, which defines the
expression, simply, as “a factual situation the existence of which
entitles one person to obtain from the court a remedy against another
person”. Alternatively, Halsbury defines “cause of action” as “that act
of the defendant which gives the plaintiff cause to complain”.
75.7 The Supreme Court has again underscored, in this decision, the
distinction between combining of reliefs based in one cause of action
and combining of different causes of action. Order II Rule 2 requires
all reliefs available on one cause of action to be combined in one suit.
It does not require all different causes of action, even if based on the
same facts, to be combined in one suit. Again, the Supreme Court has
emphasised the necessity to advert to the reliefs claimed in the two
suits to identify the causes of action.
75.8 The reference to the earlier decision in Inacio Martins v.
Narayan Hari Naik is significant in this context, as, in that case,
based on the same facts, a plaintiff filed a first suit for protection of
possession and injunction against the defendant and a second suit for
recovery of possession. The two suits were, therefore, found to be
based on two different causes of action. The Supreme Court has also
endorsed the earlier decision in Deva Ram.
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75.9 Following these decisions, the Supreme Court held that Order II
Rule 2 had no application to the facts before it, as the causes of action
in the two suits were different. Thus, it is not the facts which were
within the knowledge of the plaintiff, or which were pleaded in the
suit, but which constitutes the basis to decide whether order II Rule 2
apply, but the facts which are necessary for entitling the plaintiff to
the reliefs claimed in the suits. The court has to ascertain the facts
which the plaintiff would be entitled to plead and establish in order to
be entitled to the reliefs that the plaintiff seeks in each of the suits. If
these facts are identical, there is identity of causes of action. If there
is identity of causes of action, and the reliefs in the second suit could
also be claimed on the basis of the cause of action in the first suit, the
second suit would be barred under Order II Rule 2 of the CPC. This,
therefore, appears to be the definitive test.
76. Union of India v. H K Dhruv46
76.1 This decision, rendered by a bench of three Hon’ble Judges of
the Supreme Court, is in the nature of a short order and, unlike the
earlier decisions that we have cited, arose under the provisions of the
Arbitration Act, 1940.
76.2 H K Dhruv47 entered into a contract with the Railways. On the
Railways failing to honour a claim raised by him, Dhruv sought
46 (2005) 10 SCC 218
47 “Dhruv” hereinafter
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reference of the dispute to arbitration. The Railways did not accede,
whereupon Dhruv moved the court for appointment of an arbitrator. A
second claim was also raised by Dhruv, which was rejected by the
Railways, who did not agree to refer this dispute to arbitration either.
Dhruv, therefore, filed a second petition under Section 8 of the
Arbitration Act, for reference of the dispute to arbitration.
76.3 The railways contested the second petition as barred under
Order II Rule 2 of the CPC. The Supreme Court negatived the claim,
thus, in para 4 of the report:
“4. Having heard the learned Senior Counsel for the appellant
as also the respondent appearing in person, we are satisfied that no
fault can be found with the view taken by the High Court. In order
to attract applicability of the bar enacted by Order 2 Rule 2 CPC,
it is necessary that the cause of action on which the subsequent
claim is founded should have arisen to the claimant when he
sought for enforcement of the first claim before any court. On the
facts found and as recorded in the judgment of the High Court and
with which we find no reason to differ, the second demand raised
by the respondent was not available to be made a part of the claim
raised in the first application. The bar enacted by Order 2 Rule 2
CPC is clearly not attracted.”
(Emphasis supplied)
76.4 Though this is a short order, it is significant because it
emphasises the fact that if the foundation of the claim in the second
suit was not in existence when the first suit was filed, the second suit
cannot be said to be barred by Order II Rule 2 of the CPC. If,
therefore, the second suit is based on facts which were unknown to the
plaintiff at the time when the first suit was instituted, Order II Rule 2
would not apply.
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77. Alka Gupta v. Narender Kumar Gupta48
77.1 The appellant Alka Gupta49 and the respondent, Narender
Kumar Gupta50 entered into a partnership vide partnership deed dated
5 April 2000 to run a coaching institute under the name “Takshila
Institute”51. On 29 June 2004, Alka entered into an agreement to sell,
in respect of the suit property. Clause 13 of the agreement also sold
the goodwill of the firm Takshila Institute. The total consideration
under the agreement was ₹ 21.5 lakhs. Alka received ₹ 7.5 lakhs as
advance. Alka claimed that pursuant to the agreement to sell, she had
also executed a sale deed for ₹ 2 lakhs and that Narender had
promised to pay the balance ₹ 12 lakhs as per the Agreement to Sell
dated 29 June 2004. Predicated on this assertion, Alka instituted a suit
before the District Court at Delhi for recovery of ₹ 12 lakhs under the
Agreement to Sell dated 29 June 2004. The suit was decreed in favour
of Alka, directing Narender to pay ₹ 12 lakhs with interest.
77.2 Alka, thereafter, filed a second suit against Narender for
rendition of accounts for the period 5 April 2000 to 31 July 2004, in
respect of the partnership firm Takshila Institute. Additionally, the
second suit sought a decree against Narender for Alka’s share in the
profits of the partnership for ₹ 25.28 lakhs or higher, with interest.
48 (2010) 10 SCC 141
49 “Alka” hereinafter
50 “Narender” hereinafter
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77.3 A Single Judge, as well as a Division Bench, of the High Court,
held that the second suit was barred by Order II Rule 2 of the CPC.
Alka appealed to the Supreme Court.
77.4 The Supreme Court held that the Single Judge and the Division
Bench of the High Court were both in error in holding that the second
suit was barred by Order II Rule 2 of the CPC. The Supreme Court
found that the causes of action in the two suits were completely
different. We may reproduce, for this purpose, paras 15, 17 and 18
from the report of the judgment of the Supreme Court, thus:
“15. The first suit was for recovery of balance price under an
agreement of sale. The agreement dated 29-6-2004 was not an
agreement relating to dissolution of the firm constituted under the
deed of partnership dated 5-4-2000, or settlement of the accounts
of the said partnership. The agreement of sale made it clear that it
related to sale of the undivided half-share in the second floor at
Rohini, 50% (property bearing No. 8, Pocket and Block C-9,
Sector 8, Rohini, Delhi 110085) and 50% share of the business that
was being run in that premises, that is, premises at Rohini. The
second suit was for rendition of accounts in pursuance of the
dissolution of the firm of Takshila Institute constituted under the
deed of partnership dated 5-4-2000, carrying on business at Bhera
Enclave, Paschim Vihar, Delhi 110087 and for payment of the
amounts due on dissolution of the said firm.
*****
17. The cause of action for the first suit was non-payment of
price under the agreement of sale dated 29-6-2004, whereas the
cause of action for the second suit was non-settling of accounts of
a dissolved partnership constituted under the deed dated 5-4-2000.
The two causes of action are distinct and different. Order 2 Rule 2
of the Code would come into play only when both suits are based
on the same cause of action and the plaintiff had failed to seek all
the reliefs based on or arising from the cause of action in the first51 “the suit property” hereinafter
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suit without leave of the court. Merely because the agreement of
sale related to an immovable property at Rohini and the business
run therein under the name of “Takshila Institute” and the second
suit referred to a partnership in regard to business run at Paschim
Vihar, New Delhi, also under the same name of Takshila Institute,
it cannot be assumed that the two suits relate to the same cause of
action.
18. Further, while considering whether a second suit by a party
is barred by Order 2 Rule 2 of the Code, all that is required to be
seen is whether the reliefs claimed in both suits arose from the
same cause of action. The court is not expected to go into the
merits of the claim and decide the validity of the second claim. The
strength of the second case and the conduct of the plaintiff are not
relevant for deciding whether the second suit is barred by Order 2
Rule 2 of the Code.”
(Emphasis supplied)
77.5 Again, in this case, the Supreme Court identified the causes of
action in the two suits based on the reliefs claimed therein. It was
found that the relief claimed in the first suit was for recovery of the
balance payment under the ATS. As against this, the relief claimed in
the second suit was for rendition of accounts in respect of the
partnership firm Takshila Institute. The cause of action in the first suit
was, therefore, non-payment of price under the ATS dated 29 June
2004, whereas the cause of action in the second suit was failure to
settle accounts in respect of the dissolved partnership constituted
under the partnership deed dated 5 April 2000. The two causes of
action were, therefore, distinct and different. Once the causes of
action were distinct and different, there could be no question of
application of Order II Rule 2 of the CPC.
77.6 The concluding observation in para 17 of the report is of
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considerable significance, especially in the light of the controversy
before us. The Supreme Court held that though both the suits referred
to the partnership in the form of the business run under the name
Takshila Institute, and the ATS, which was the basis of the first suit,
was also in respect of the same institute, it could not be said that both
suits arose from the same cause of action. The Court is, therefore,
required to be vigilant regarding the difference between the reliefs
claimed in the two suits, which would be the basis to determine
whether there is identity of causes of action, and the facts stated in the
two suits. It is only to the extent that the facts in the first suit are
necessary to be pleaded in order to maintain the reliefs that the first
suit claims that they would constitute a part of the cause of action.
Additionally, if the reliefs claimed are completely different and
distinct, thereby resulting in total dissociation between the facts
required to be proved in order for the reliefs to be sustainable, Order II
Rule 2 would not come into play.
78. Coffee Board v. Ramesh Exports Pvt. Ltd.
78.1 On 24 August 2018, the Coffee Board52 forwarded, to all
registered exporters of coffee, the terms and conditions on which
coffee could be sold in the course of export. An export auction was
subsequently held, during which Ramesh Exports Pvt. Ltd.53, the
respondent before the Supreme Court, purchased coffee for export.
52 “Board” hereinafter
53 “Ramesh Exports” hereinafter
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Ramesh Exports shipped 230.4 tonnes of the purchased coffee to USA
and Germany without a valid certificate of origin from the
International Coffee Organisation54. Thereafter, Ramesh Exports
wrote to the Board requesting for ICO’s stamp for export of the afore-
noted 230.4 tonnes of coffee, followed up by a second request for
issue of necessary permit/authority to re-import the said 230.4 tonnes
of coffee into India. The Board issued a show cause notice to Ramesh
Exports, alleging breach, on its part, of the ICO agreement of 1983,
which put in place an obligatory system of controls to manage export
of coffee.
78.2 Ramesh Exports instituted two suits against the Board before
the City Civil Judge, Bangalore. The first suit, filed in 198555, sought
a decree for ₹ 5,32,012.31 with interest, whereas the second suit, filed
in 198656, sought a decree of ₹ 11,70,446.39 with interest. The first
suit was decreed by the trial court by judgment dated 14 February
2002 in favour of Ramesh Exports and against the Board. The second
suit was, however, dismissed by the trial court by judgment dated 17
March 2005. Aggrieved by the dismissal of the second suit, Ramesh
Exports filed a First Appeal before the High Court of Karnataka. The
first appeal was partly allowed by the High Court. The Board
appealed to the Supreme Court.
78.3 Before the Supreme Court, the principal grievance urged by the
54 “ICO” hereinafter
55 “The 1985 suit” hereinafter
56 “The 1986 suit” hereinafter
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Board was that the High Court had erred in holding that the 1986 suit
was not barred by Order II Rule 2 of the CPC. This decision, it was
submitted, had been arrived at without comparing the pleadings in the
two suits. The Board urged that the second suit was clearly barred by
Order II Rule 2.
78.4 The Supreme Court, in para 9 of the its report, first reiterated
the governing principle behind Order II Rule 2, which already stands
noted in the decision cited earlier, thus:
“9. The above Rules are offshoots of the ancient principle that
there should be an end to litigation traced in the Full Bench
decision of the Court in Lachhmi v. Bhulli57 and approved by this
Court in many of its decisions. The principle which emerges from
the above is that no one ought to be vexed twice for the same
cause. In light of the above, from a plain reading of Order 2 Rule
2, it emerges that if different reliefs and claims arise out of the
same cause of action then the plaintiff must place all his claims
before the court in one suit and cannot omit one of the reliefs or
claims except without the leave of the court. Order 2 Rule 2 bars a
plaintiff from omitting one part of claim and raising the same in a
subsequent suit. (See Deva Ram v. Ishwar Chand)”
78.5 Thereafter, the Supreme Court proceeded by relying on the
judgment of the Constitution Bench in Gurbux Singh as well as the
decision in Alka Gupta.
78.6 The Supreme Court, in this case, held the second suit to have
been barred by Order II Rule 2 of the CPC and the High Court to have
erred in holding otherwise. Paras. 11, 12, 17, 19 and 20 to 22 of the
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report, merit reproduction:
“11. The bar of Order 2 Rule 2 comes into operation where the
cause of action on which the previous suit was filed, forms the
foundation of the subsequent suit; and when the plaintiff could
have claimed the relief sought in the subsequent suit, in the earlier
suit; and both the suits are between the same parties. Furthermore,
the bar under Order 2 Rule 2 must be specifically pleaded by the
defendant in the suit and the trial court should specifically frame a
specific issue in that regard wherein the pleading in the earlier suit
must be examined and the plaintiff is given an opportunity to
demonstrate that the cause of action in the subsequent suit is
different. This was held by this Court in Alka Gupta v. Narender
Kumar Gupta which referred to the decision of this Court
in Gurbux Singh v. Bhooralal wherein it was held that:
*****
12. The courts in order to determine whether a suit is barred by
Order 2 Rule 2 must examine the cause of action pleaded by the
plaintiff in his plaints filed in the relevant suits (see S. Nazeer
Ahmed v. State Bank of Mysore58). Considering the technicality of
the plea of Order 2 Rule 2, both the plaints must be read as a
whole to identify the cause of action, which is necessary to
establish a claim or necessary for the plaintiff to prove if traversed.
Therefore, after identifying the cause of action if it is found that the
cause of action pleaded in both the suits is identical and the relief
claimed in the subsequent suit could have been pleaded in the
earlier suit, then the subsequent suit is barred by Order 2 Rule 2.
*****
17. The cause of action in the above suit is the failure of ICO to
supply stamps to the respondent in spite of its assurances. The
respondent to ensure the success of his claim, was required to
prove that on account of the omission of the appellant i.e. failure to
provide ICO stamps for the coffee purchased by them, the
respondent suffered losses.
*****
19. Though the plaint in the subsequent suit is more specific,
57 ILR (1927) 8 Lah 384
58 (2007) 11 SCC 75
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we however, find that the respondent so as to recover the cost of
the freight charges and other costs suffered by it, must prove that
the appellant was under a duty to provide ICO stamps; and its
failure to provide the stamps timely led to the coffee being shipped
without the stamps and ultimately led to the losses being suffered
by the respondent.
20. In both the suits the fact required to be proved by the
respondent (being the plaintiff therein), to succeed in its claims
was that on account of the failure of the appellant (being the
defendant) to provide the required ICO stamps as assured by it, the
respondent had to suffer losses. The two separate reliefs claimed
by the respondent are dependent on the same fact being the
omission of duty by the appellant. The grounds of disparity in the
suits are the amount of coffee and the dates when the same was
purchased, however it must be noted that the period between 11-8-
1982 and 18-8-1982 is common to both the suits and there are no
specific pleadings differentiating the same. Furthermore, the suits
were filed within a span of nine days of each other.
21. In the light of the above, we are of the opinion that the
suits should have been merged with the claims against coffee
purchased between 25-7-1982 and 8-9-1982 (a period arising from
the merging of the two periods claimed in the suits wherein eight
days overlapped each other) clubbed together in the same suit from
which two reliefs, first being the losses due to delayed shipment
and second being the costs and losses arising due to the recall of
the shipment, could have been claimed.
22. In the present factual matrix both the reliefs are being
claimed separately in the two suits concerned. This scenario
negates the principle of Order 2 Rule 2 in the absence of any
explanation as to why the respondent failed to claim the relief by
way of a single suit when the cause of action was the same in the
both. Therefore, we are of the opinion that the trial court in its
judgment dated 17-3-2005 correctly held that in light of OS No.
3150 of 1985 the present suit is barred under Order 2 Rule 2 of the
Code.”
(Emphasis supplied)
78.7 Besides reiterating the principles which the decisions cited
earlier had already stated, the Supreme Court, in para 12 of its report,
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underscored the requirement of reading the plaints as a whole to
identify the causes of action. Once the plaints were read as a whole, if
(i) the causes of action in two suits were found to be identical and (ii)
the reliefs claimed in the second suit could have been claimed based
on the cause of action in the first suit, the second suit would be barred
by Order II Rule 2.
78.8 On facts, the Supreme Court held that in the 1985 suit, the
cause of action was the failure of the Board to supply stamps to
Ramesh Exports despite its assurance, for which, to succeed in claim
Ramesh Exports was required to prove that, as a result of failure on
the Board’s part to supply ICO stamps to Ramesh Exports, Ramesh
Exports had suffered losses. In the second suit, Ramesh Exports was
seeking to recover freight charges and other costs suffered by it, for
which, again, Ramesh Exports had to establish the duty of the Board
to provide ICO stamps, resulting in the coffee being shipped without
the stamps and consequent losses to Ramesh Exports.
78.9 As such, the Supreme Court held that, in both the suits, Ramesh
Exports had, to succeed in its claims, to prove the obligation on the
part of the Board to provide ICO stamps and the losses suffered by
Ramesh Exports as a consequence of failure on the part of the Board
in adhering to this obligation. Failure, on the part of the Board, to
abide by its duty to provide ICO stamps, therefore, constituted the
basis of the reliefs claimed in both the suits. As this fact was
identical, the Supreme Court held that there was identity of causes of
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action. The Supreme Court, therefore, found that, as there was identity
of causes of action and the relief claimed in the second suit could also
be claimed on the basis of the cause of action in the first suit, the
second suit was barred by order II Rule 2 of the CPC.
79. Rathnavathi
79.1 The facts of this case are relatively simple and no detailed
allusion thereto is necessary. Broadly stated, a plaintiff entered into an
agreement to purchase the suit property from the first defendant D1.
The second defendant D2 attempted to interfere in the plaintiff’s
possession of the suit property. The plaintiff instituted two suits
against the defendants. In the first suit, the plaintiff sought an
injunction against the defendants interfering with the plaintiff’s
possession over the suit property. In the second suit, the plaintiff
sought specific performance of the agreement to sell. In both the suits,
the plaintiff asserted that it had paid the substantial part of the sale
consideration and was ready and willing to pay the balance. One of the
issues which travelled up to the Supreme Court was whether the
second suit was barred by Order II Rule 2 of the CPC.
79.2 The Supreme Court answered the issue in the negative, holding
as under:
“25.1. So far as the suit for permanent injunction is concerned, it
was based on a threat given to the plaintiff by the defendants to
dispossess her from the suit house on 2-1-2000 and 9-1-2000. This
would be clear from reading Para 17 of the plaint. So far as the
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agreement is concerned, the same was based on non-performance
of agreement dated 15-2-1989 by Defendant 2 in the plaintiff’s
favour despite giving legal notice dated 6-3-2000 to Defendant 2 to
perform her part.
25.2. In our considered opinion, both the suits were, therefore,
founded on different causes of action and hence could be filed
simultaneously. Indeed even the ingredients to file the suit for
permanent injunction are different than that of the suit for specific
performance of the agreement.
25.3. In case of former, the plaintiff is required to make out the
existence of prima facie case, balance of convenience and
irreparable loss likely to be suffered by the plaintiff on facts with
reference to the suit property as provided in Section 38 of the
Specific Relief Act, 1963 (in short “the Act”) read with Order 39
Rules 1 and 2 CPC. Whereas, in case of the latter, the plaintiff is
required to plead and prove her continuous readiness and
willingness to perform her part of the agreement and to further
prove that the defendant failed to perform her part of the
agreement as contained in Section 16 of the Act.
26. One of the basic requirements for successfully invoking the
plea of Order 2 Rule 2 CPC is that the defendant of the second suit
must be able to show that the second suit was also in respect of the
same cause of action as that on which the previous suit was based.
As mentioned supra, since in the case on hand, this basic
requirement in relation to cause of action is not made out, the
defendants (appellants herein) are not entitled to raise a plea of bar
contained in Order 2 Rule 2 CPC to successfully non-suit the
plaintiff from prosecuting her suit for specific performance of the
agreement against the defendants.
27. Indeed when the cause of action to claim the respective
reliefs were different so also the ingredients for claiming the
reliefs, we fail to appreciate as to how a plea of Order 2 Rule 2
CPC could be allowed to be raised by the defendants and how it
was sustainable on such facts.
28. We cannot accept the submission of the learned Senior
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available to the plaintiff prior to filing of the first suit, the second
suit was hit by bar contained in Order 2 Rule 2 CPC.
29. The submission has a fallacy for two basic reasons. Firstly,
as held above, cause of action in two suits being different, a suit for
specific performance could not have been instituted on the basis of
cause of action of the first suit. Secondly, merely because pleadings
of both suits were similar to some extent did not give any right to
the defendants to raise the plea of bar contained in Order 2 Rule 2
CPC. It is the cause of action which is material to determine the
applicability of bar under Order 2 Rule 2 CPC and not merely the
pleadings. For these reasons, it was not necessary for the plaintiff
to obtain any leave from the court as provided in Order 2 Rule 2
CPC for filing the second suit.
30. Since the plea of Order 2 Rule 2 CPC, if upheld, results in
depriving the plaintiff to file the second suit, it is necessary for the
court to carefully examine the entire factual matrix of both the
suits, the cause of action on which the suits are founded, the reliefs
claimed in both the suits and lastly, the legal provisions applicable
for grant of reliefs in both the suits.
31. In the light of foregoing discussion, we have no hesitation
in upholding the finding of the High Court on this issue. We,
therefore, hold that the second suit (OS No. 2334 of 2000) filed by
the plaintiff for specific performance of agreement was not barred
by virtue of the bar contained in Order 2 Rule 2 CPC.”
(Emphasis supplied)
79.3 This decision reinforces three fundamental principles governing
Order II Rule 2, viz. that
(i) the relief sought in the two suits would be determinative
of the respective causes of action on which they were based,
(ii) where the ingredients of the causes of action in the two
suits were different, there could be no question of applying
Order II Rule 2, and
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(iii) identity of pleadings in the two suits would not imply,
ipso facto, identity of causes of action.
79.4 Applying these principles, the Supreme Court held that, as the
first suit was filed for permanent injunction, for which the plaintiff
was required to prove existence of a prima facie case, balance of
convenience and irreparable loss on facts, and as the second suit was
filed for specific performance of the agreement to sell, for which she
had to prove her readiness and willingness to perform the agreement
and failure on the part of D1 to do so, the two suits were predicated on
different causes of action, and the relief in the second suit could not be
sought on the basis of the cause of action in the first. This again
highlights the dependence, of the cause of action in the suit, on the
relief sought therein.
80. Cuddalore Powergen Corporation
80.1 Vide an agreement to sell dated 24 January 2007, one
Senthamizh Selvi59 agreed to sell property60 in Cuddalore to
Chemplast Cuddalore Vinyls Ltd61 for ₹ 1.5 lakhs. Chemplast claimed
that Selvi had received the entire sale consideration and that
Chemplast had thereafter been put in possession of the suit property.
Selvi was also alleged to have executed an irrevocable power of
attorney to enable Chemplast to obtain registration of the sale deed
59 “Selvi” hereinafter
60 “the suit property” hereinafter
61 “Chemplast” hereinafter
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pertaining to the suit property. Chemplast had the agreement for sale
registered on 7 September 2007.
80.2 Thereafter, on 2 November 2007, Selvi issued a letter revoking
the power of attorney issued in favour of Chemplast. This was
followed by a letter dated 6 February 2008 by Selvi to Chemplast
enclosing a demand draft of ₹ 1.5 lakhs. Chemplast asserted that it had
returned the demand draft on 8 February 2008 and had also, on 9
February 2008, written to Selvi asking her to perform her part of the
agreement for sale by executing the sale deed and not to alienate the
suit property in favour of anyone else.
80.3 On failing to obtain registration of the suit property despite
several attempts, Chemplast filed writ petition 1783/2008 before the
High Court of Madras. During those proceedings, it was revealed that
the revenue authorities had declined to register the sale deed because
of a Government Order62 issued by the Government of Tamil Nadu on
8 August 1986, whereby certain areas of land, which included the area
in which the suit property was located, were reserved exclusively for
the purpose of a thermal power station to be set up by the Tamil Nadu
Electricity Board63. TNEB had, vide letter dated 23 October 2006,
authorised the Cuddalore Powergen Corporation Ltd64 – the appellant
before the Supreme Court – to develop a power station over an
earmarked area of 350 hectares of land. As a result, the general ban
62 “GO” hereinafter
63 “TNEB” hereinafter
64 “CPCL” hereinafter
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against registering the suit property did not operate against CPCL.
80.4 Chemplast alleged that, on and from the second week of
February 2008, CPCL and Selvi started to interfere with the peaceful
possession and enjoyment, by Chemplast, of the suit property. There
was also an imminent threat of disposition. In these circumstances,
Chemplast filed OS 28/2008 before the Principal District Judge for a
permanent injunction restraining CPCL and Selvi from interfering
with the peaceful possession and enjoyment of the suit property by
Chemplast.
80.5 In its written statement, CPCL asserted that a sale deed had
been registered on 24 January 2008 by Selvi, selling the suit property
to CPCL. It was asserted that, on 24 January 2008, Selvi alone was in
possession of the suit property. CPCL had thereby become the actual
owner of the suit property and Chemplast could not seek to injunct
CPCL therefrom.
80.6 On 5 March 2008, a Division Bench of the High Court of
Madras, in a Public Interest Litigation, quashed GO dated 8 August
1986 whereby there was a ban on registration of the areas reserved for
power station, including the suit property. The High Court directed the
revenue authorities to register all documents pertaining to the said
areas, if they fulfilled the stipulation governing the statutory
enactments applicable thereto. Chemplast claimed to have
immediately thereafter written to the Tehsildar, Cuddalore, on 6
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March 2008, calling upon him not to alter the revenue records in
respect of the suit property. Writ Petition 1783/2008, preferred by
Chemplast, was also disposed of, by the Single Judge of the High
Court of Madras in similar terms. Asserting that it had come to learn
of the sale deed dated 24 January 2008 purportedly executed between
Selvi and CPCL only after the first suit had been executed by it,
Chemplast filed a second suit, i.e. OS 122/2008, before the First
Additional Subordinate Judge65, for a declaration that the sale deed
dated 24 January 2008 between Selvi and CPCL was null and void
and for a direction to Selvi to specifically perform the terms and
conditions of the ATS dated 24 January 2007.
80.7 CPCL filed an application in the second suit, asserting that it
was not maintainable in view of Order II Rule 2 of the CPC. This
application was allowed by the learned FASJ, and, who, therefore,
passed a decree rejecting the plaint in OS 122/2008. The first
appellate court upheld this decision but the High Court, in second
appeal, set it aside, holding that the second suit could not have been
rejected under Order II Rule 2 of the CPC and, therefore, restored the
plaint to the file of the learned FASJ. CPCL appealed, against the said
decision, to the Supreme Court.
80.8 The Supreme Court has set out the applicable principles,
underlying Order II Rule 2 after taking into consideration various
judicial authorities as well as other authorities defining “cause of
65 “FASJ” hereinafter
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action” including Mohammad Khalil Khan v. Mahbub Ali Mia,
Gurbux Singh and S. Nazeer Ahmed v. State Bank of Mysore. Paras
43 and 47 of the report set out the principles that the Supreme Court
culled out of the aforesaid decisions, thus:
“43. A summary of the principles laid down in Mohd. Khalil
Khan (supra) are as under:
“The principles laid down in the cases thus far discussed
may be thus summarised:–
(1) The correct test in cases falling under Or. 2, r. 2, is
“whether the claim in the new suit is, in fact, founded upon
a cause of action distinct from that which was the
foundation for the former suit.
(2) The cause of action means every fact which will be
necessary for the Plaintiff to prove, if traversed, in order to
support his right to the judgment.
(3) If the evidence to support the two claims is different,
then the causes of action are also different.
(4) The causes of action in the two suits may be
considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatever to the
defence that may be set up by the defendant, nor does it
depend upon the character of the relief prayed for by the
Plaintiff. It refers “to the media upon which the Plaintiff
asks the Court to arrive at a conclusion in his favour. This
observation was made by Lord Watson in a case under s.
43 of the Act of 1882 (corresponding to Or. 2, r. 2), where
plaintiff made various claims in the same suit.
(emphasis supplied)
*****
47. On a conspectus of the aforesaid discussion, what follows is
that:
i. The object of Order II Rule 2 is to prevent the
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multiplicity of suits and the provision is founded on the
principle that a person shall not be vexed twice for one and
the same cause.
ii. The mandate of Order II Rule 2 is the inclusion of
the whole claim arising in respect of one and the same
cause of action, in one suit. It must not be misunderstood to
mean that all the different causes of action arising from the
same transaction must be included in a single suit.
iii. Several definitions have been given to the phrase
“cause of action” and it can safely be said to mean – “every
fact which would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the Court”. Such a cause of action has no relation
whatsoever to the defence that may be set up by the
defendant, nor does it depend upon the character of the
relief which is prayed for by the plaintiff but refers to the
media upon which the plaintiff asks the Court to arrive at a
conclusion in his favour.
iv. Similarly, several tests have been laid out to
determine the applicability of Order II Rule 2 to a suit.
While it is acknowledged that the same heavily depends on
the particular facts and circumstances of each case, it can
be said that a correct and reliable test is to determine
whether the claim in the new suit is in fact founded upon a
cause of action distinct from that which was the foundation
of the former suit. Additionally, if the evidence required to
support the claims is different, then the causes of action can
also be considered to be different. Furthermore, it is
necessary for the causes of action in the two suits to be
identical in substance and not merely technically identical.
v. The defendant who takes shelter under the bar
imposed by Order II Rule 2(3) must establish that (a) the
second suit was in respect of the same cause of action as
that on which the previous suit was based; (b) in respect of
that cause of action, the plaintiff was entitled to more than
one relief; and (c) being thus entitled to more than one
relief, the plaintiff, without any leave obtained from the
Court, omitted to sue for the relief for which the second suit
had been filed.
vi. The defendant must also have produced the earlier
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plaint in evidence in order to establish that there is an
identity in the causes of action between both the suits and
that there was a deliberate relinquishment of a larger relief
on the part of the plaintiff.
vii. Since the plea is a technical bar, it has to be
established satisfactorily and cannot be presumed merely
on the basis of inferential reasoning.”
(emphasis supplied)
80.9 While almost all these principles are contained in the earlier
decisions cited supra, three principles, which Cuddalore Powergen
Corporation specifically emphasises, deserve to be additionally noted.
These are that
(i) if the evidence to support the claims in the two suits is
different, the causes of action are also different,
(ii) the character of the reliefs sought by the plaintiff in the
first suit is not of particular relevance; what is of relevance is
the media upon which the plaintiff asks the court to arrive at a
conclusion in its favour and
(iii) Order II Rule 2 does not require two different causes of
action arising from the same transaction to be included in one
suit; what is required is that all reliefs which may be claimed
based on a single cause of action should be claimed in one suit.
80.10 The Supreme Court, thereafter, reiterated the principle that the
plaint had to be read as a whole before arriving at a conclusion that
the causes of action in the plaint were identical or that the reliefs
claimed in the second suit were available from the cause of action in
the first suit. In this context, para 56 of the report makes for
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illuminating reading:
“56. Order VII Rule 11(d) reads as – “where the suit appears
from the statement in the plaint to be barred by any law”. In light
of the aforesaid, it follows that before rejecting the plaint under
Order VII Rule 11(d), the Courts must ensure that the plaint is read
as a whole and its entire averments are looked into. A few lines or
passages must not be read in isolation and it is imperative that the
pleadings are read as a whole for ascertaining the true import of
the averments therein. In performing such a holistic reading, it
must be deduced whether the causes of action in both the suits are
identical in substance in order to sustain a successful plea under
Order II Rule 2. It would be a reductive approach to only cull out
the cause of action paragraphs from the respective plaints and
decide that they disclose the same cause of action on mere
comparative overview.”
(Emphasis supplied)
Identity of the causes of action is, therefore, not to be decided by
merely reading the formal paragraphs which set out the cause of
action, normally to be found towards the end of the plaint. It has to be
decided by a holistic reading of the two plaints in their entirety. The
Supreme Court, thereafter, cited various other decisions including
Rathnavathi, in the context of which it was thus observed in para 62:
“62. The Court in Rathnavathi (supra) had added that the
defendants would not be justified in raising a plea of bar under
Order II Rule 2 merely on account of the pleadings of both the suits
being similar to some extent. It is the identity of the cause of action
which must be a material consideration for the Courts and not the
pleadings alone. Additionally, since a successful plea under this
provision would result in depriving the plaintiff of his right to file
the second suit, Courts must be careful and should examine the
entire factual matrix of both the suits, the causes of action on
which they are founded, the reliefs which are claimed in both suits
and the legal provisions applicable for the grant of reliefs.”
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80.11 Having thus culled out the salient principles, the Supreme Court
went on to apply them to the facts before it and arrived at the
following observations/conclusions:
“64. On a detailed examination of the aforementioned decisions,
it can be seen that the variance in opinion that can observed as
regards the applicability of the bar contained in Order II Rule 2 is
due to a pertinent factual distinction i.e., the date when the refusal
to perform the agreement for sale on part of the defendant was
brought to the notice of the plaintiff. While in Virgo
Industries (supra) and Vurimi Pullarao (supra)66 the plaintiffs
had notice of the defendant’s refusal to perform even prior to the
institution of the first suit for injunction, in Inbasagaran (supra)67
and Rathnavathi (supra), such a knowledge of the fact that the
defendants had no intention to perform the agreement for sale was
acquired after the first suit was instituted and through the defence
which was put forth by the defendants to the first suit. This was
precisely why the plea of bar under Order II Rule 2 was said to
apply to the facts in Virgo Industries (supra) and Vurimi
Pullarao (supra) and to be inapplicable to the facts
in Inbasagaran (supra) and Rathnavathi (supra).
65. If the factual scenario of the present case is superimposed
to those in the decisions as aforesaid, it can be seen that the
respondent no. 1 (plaintiff) had filed a suit for permanent
injunction against both the respondent no. 2 and the appellant in
order to restrain them from interfering with the peaceful
possession and enjoyment of the suit property by the respondent
no. 1. In the plaint of the first suit for injunction, the respondent no.
1 averred as follows:
“6. Quite unfortunately, the First Defendant for reasons
best known to her, issued a letter on 2nd November 2007
(received by the Plaintiff on 5th November 2007) inter alia
revoking the Power of Attorney issued in favour of the
Plaintiff…
7. While these are the circumstances, the Defendant
66 Vurimi Pullarao v. Vemari Venkata Radharani, (2020) 14 SCC 110
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with an ulterior design and ill motive issued a letter to the
Plaintiff on 06.02.2008 setting forth frivolous and vexatious
contentions enclosing a sum of Rs. 1,50,000/- by way of
demand draft. A copy of the said letter along with a copy of
the demand draft is submitted herewith as document No.
6…
8. … The plaintiff also issued a notice through its counsel
on 09.02.08 calling upon her not to sell the suit property to
any person…”
(emphasis supplied)
66. The revocation of the Power of Attorney which was issued
in favour of the respondent no. 1 for the performance of all
formalities in connection with the registration and execution of the
sale deed on 02.11.2007, combined with the return of the entire
sale consideration which was given by the respondent no. 1 on
06.02.2008 under alleged false pretexts, also combined with the
lack of response to the letter dated 09.02.2008, was sufficient for
the respondent no. 1, as a reasonable individual, to infer that the
respondent no. 2 did not intend to perform her part of the
agreement for sale dated 24.01.2007 and execute the sale deed in
favour of the respondent no. 1.
*****
70. A conjoint reading of the aforementioned averments made
by the respondent no. 1 as the plaintiff in the plaints of both the
suits would indicate that the refusal by the respondent no. 2 to
perform the agreement for sale was brought to the knowledge of
the respondent no. 1 much prior to the filing of the first suit. In
other words, the notice of the refusal to perform on part of the
respondent no. 2 preceded the filing of the first suit. Therefore, to
this extent, the factual scenario would be akin to those in Virgo
Industries (supra) and Vurimi Pullarao (supra). This might be
why the Trial Court in its judgment and decree dated 30.04.2009
passed in I.A. No. 17 of 2009 and O.S. No. 122 of 2008 (second
suit) had arrived at the conclusion that the second suit must be
subjected to the bar imposed under Order II Rule 2. In other words,
that when the respondent no. 1 could have prayed for a larger relief
in their first suit, their omission to do so must preclude them for
agitating the same subsequently.
71. However, in our opinion, the Trial Court had unfortunately
failed to address a key aspect – whether more than one relief in
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respect of the cause of action which formed the foundation of the
institution of the first suit was “available” to the respondent no. 1?
In other words, whether the relief of specific performance and the
relief to pray for the cancellation of the sale deed dated 24.02.2008
executed in favour of the appellant were “available” to the
respondent no. 1 at the time of filing the first suit in view of the ban
imposed on the registration of sale deeds at the Thyagavalli village
by the G.O. dated 08.08.1986 issued by the Government of Tamil
Nadu and the notification dated 23.10.2006 issued by the TNEB
which exclusively allowed the appellant to register the sale deeds
at the Thyagavalli village where the suit property is situate.”
(Emphasis supplied)
80.12 Thus, on facts, the Supreme Court found that as (i) the power of
attorney issued by her in favour of Chemplast had been revoked by
Selvi, (ii), Selvi had also executed a sale deed on 2 November 2007,
(iii) Selvi had returned the entire sale consideration given by
Chemplast on 6 February 2008 and (iv) Selvi had not responded to
Chemplast’s letter dated 9 February 2008, Chemplast was made well
aware of the fact that Selvi did not intend to perform her part of the
ATS dated 24 January 2007 even before the first suit was instituted.
In view of all the facts on the basis of which the cause of action in the
second suit was based, were known to the plaintiff at the time of
institution of the first suit, the Supreme Court held that the trial court
might have bona fide arrived at the finding that the second suit was
barred by Order II Rule 2 of the CPC.
80.13 The Supreme Court, however, went on to hold that the trial
court failed to address, further, the issue of whether at the time of
filing the first suit, the relief sought in the second suit was available to
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Chemplast. The relief sought in the second suit was for specific
performance of the ATS and cancellation of the sale deed dated 24
February 2008 executed by Selvi in favour of CPCL. At the time of
institution of the first suit, the GO dated 8 August 1986 issued by the
Tamil Nadu Government was in force, whereby there was a ban on
registration of sale deeds in the area in which the suit property was
situated. By operation of the said GO, CPCL alone was allowed to
register the said sale deeds.
80.14 In that view of the matter, the remedy sought in the second suit
was not available to Chemplast at the time of institution of the first
suit. The Supreme Court, in this regard, concurred with the views
expressed by the High Court of Rajasthan in Ramjilal v. Board of
Revenue, Rajasthan68 and the High Court of Allahabad in National
Security Assurance Co. Ltd. v. S.N. Jaggi69, that, if it was impossible
to obtain the relief sought in the second suit at the time of institution
of the first suit, then, despite the plaintiff having been entitled to such
reliefs in law, the second suit could not be said to be barred by Order
II Rule 2. This proposition has been thus distilled in para 77 of the
report, thus:
“77. These decisions of the Rajasthan and Allahabad High
Courts respectively, have rightly taken the view that when it is not
possible for the plaintiff to obtain a particular relief in the first
instance but such relief becomes available to him on the happening
of a subsequent event, post the institution of the first suit, then the
bar under Order II Rule 2 would not stand in the way of the68 AIR 1964 Raj 114
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plaintiff who has instituted a subsequent suit for claiming those
reliefs. It can be said that the occurrence of that subsequent event
gives rise to a fresh cause of action to the concerned plaintiff for
claiming certain reliefs which he was otherwise prevented from
claiming.”
(Emphasis supplied)
80.15 Finally, the Supreme Court, in para 86, reiterated the principles
governing Order II Rule 2, thus:
“86. It is established law that the principles governing the
applicability of the provisions of Order II Rule 2 do not operate as
a bar when the subsequent suit is based on a cause of action
different from that on which the first suit was based and that the
identity of the causes of action in both the suits must be the
material consideration before the court which decide the
applicability of this provision to a second suit filed by the plaintiff.
It would be incorrect for us to hold that merely because the
pleadings in the plaint filed in O.S. No. 28 of 2008 and the plaint
filed in O.S. No. 122 of 2008 are similar to some extent, the causes
of action are also identical. Rejecting the plaint in the second suit
i.e., O.S. No. 122 of 2008 would result in depriving the respondent
no. 1 from claiming the relief of specific performance of the
agreement for sale dated 24.01.2007 and the cancellation of the
sale deed dated 24.01.2008. In this regard, we have examined the
entire factual matrix along with the causes of action on which both
the suits were founded, through a holistic reading of the plaints
placed before us. In our opinion, the reliefs in the subsequent suit
are in fact founded on a cause of action which is distinct from that
which is the foundation of the former suit. The facts which are
necessary to be proved and the evidence to support the claims in
the second suit are also different from that of the first suit.
Therefore, it cannot be said that the respondent no. 1 could have
prayed for the reliefs claimed in the subsequent suit at an earlier
stage.”
(Emphasis supplied)
80.16 Following this, in para 87, the Supreme Court reversed the
decisions of the High Court and the trial court on the ground that, at
the time of institution of the first suit, it was impossible for Chemplast
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to obtain a relief sought in the second suit.
81 State of Maharashtra v. National Construction Company70
81.1 The State of Maharashtra invited tenders for work relating to
the Paithan Dam on the Godavari River. The offer of National
Construction Company71 was accepted. As required by the tender
documents, performance bank guarantee72 dated 6 January 1968 was
also executed by the Central Bank of India73. The State of
Maharashtra74 alleged that the NCC failed to employ the proper
agency to ensure that the contract work was completed resulting in the
State having to incur expenses totalling to ₹ 1,44,18,970.24.
81.2 On 21 June 1972, the State filed Suit 491/1972 only against the
Bank, before the Bombay High Court for recovery of ₹ 14,12,836,
being the amount covered by the PBG with interest. The suit was filed
before the PBG lapsed.
81.3 The High Court dismissed the suit for non-joinder of parties,
holding that NCC was required to be impleaded as a necessary party.
An appeal, preferred thereagainst by the State, was also dismissed on
7 April 1983. On the same day, i.e., 7 April 1983, the State filed a
second Special Civil Suit 29/1983 against the NCC and the Bank
70 (1996) 1 SCC 735
71 “NCC” hereinafter
72 “PBG” hereinafter
73 “Bank” hereinafter
74 “the State” hereinafter
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before the Court of the Civil Judge at Aurangabad claiming ₹
1,13,27,298.16 with interest from NCC towards damages for breach
of contract. This included the claim of ₹ 14,12,836/- which formed
subject matter of the first suit instituted against the bank which was
covered by the PBG.
81.4 The Civil Judge dismissed the second suit on 28 July 1992 inter
alia holding that it was barred by Order II Rule 2 of the CPC. The
appeal, preferred thereagainst by the State, was dismissed by the
Division Bench of the High Court on 9 July 1993 against which the
State appealed to the Supreme Court.
81.5 The Supreme Court held the Trial Court as well the High Court
to have erred in holding that the second suit was barred by Order II
Rule 2 of the CPC. Paras 9 to 12, 15 and 18 from the report of the
judgment of the Supreme Court are relevant and read thus:
“9. … Both the principle of res judicata and Rule 2 of Order 2 are
based on the rule of law that a man shall not be twice vexed for one
and the same cause. In the case of Mohd. Khalil Khan v. Mahbub
Ali Mian, the Privy Council laid down the tests for determining
whether Order 2 Rule 2 of the Code would apply in a particular
situation. The first of these is, “whether the claim in the new suit is
in fact founded upon a cause of action distinct from that which was
the foundation for the former suit”. If the answer is in the
affirmative, the rule will not apply. This decision has been
subsequently affirmed by two decisions of this Court in Kewal
Singh v. Lajwanti and in Inacio Martins.
10. It is well settled that the cause of action for a suit comprises
all those facts which the plaintiff must aver and, if traversed, prove
to support his right to the judgment.
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11. It is the contention of the appellants that the two suits are in
respect of two separate causes of action. The first suit was filed to
enforce the bank guarantee, while the second suit was filed to
claim damages for breach of the contract relating to the work.
12. In the plaint of the short cause suit, the foundation of the
appellants’ claim rested upon the Performance Guarantee No.
57/22. The basis of the appellants’ claim was that under the terms
of the bank guarantee, the Bank was liable to make good to the
appellants all losses that became due by reason of any default on
the part of the contractor in the proper performance of the terms of
the contract. The appellants annexed particulars and laid out facts
to show that the contractor had, by allegedly abandoning the work,
failed to observe the terms of the contract. The appellants further
alleged that these actions of the contractor had caused them to
incur losses of Rs 76,37,557.76. However, in view of the limitation
prescribed in the bank guarantee, the appellants had limited their
claim to Rs 14,12,836.
*****
15. In the plaint of the special suit, the main relief sought by
the appellants was on the basis of the contract entered into
between the appellants and the contractor. The appellants alleged
and laid out facts and particulars to the effect that the
abandonment of work by the contractor was in breach of the
contract and this had caused the appellants to suffer losses worth
Rs 1,13,27,298.16. This amount was inclusive of the claim of Rs
14,12,836 based on the Performance Guarantee No. 57/22 for
which the contractor and the Bank were jointly and severally
liable.
*****
18. It is, therefore, clear that when the appellants, by way of
Short Cause Suit No. 491 of 1972, sought to enforce the
Performance Guarantee No. 57/22, they were seeking reliefs on the
basis of a cause of action which was distinct from the one upon
which they subsequently based their claim in Special Civil Suit No.
29 of 1983.”
81.6 The principles laid down in this decision are the same as those
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which were enunciated in the judgments cited earlier, and need not be
repeated. The manner in which they were applied to the facts before
the Supreme Court is, however, relevant. The Supreme Court held that
the claim in the first suit filed by the State rested on the PBG. The
contention of the State was that, under the PBG, the Bank was liable
to make good of losses incurred by the State as a result of delay on the
part of NCC in compliance with its obligation under the contract.
Though it had allegedly suffered a much greater loss, the State
restricted its claim to ₹ 14,12,836/- in view of the limitations
contained in the PBG.
81.7 As against this, the second suit was predicated, not on the PBG,
but on the contract between the State and NCC. The claim was for
damages suffered by the State on account of abandonment of work by
NCC, which was stated to be ₹ 1,13,27,298.16. This included the
amount of ₹ 14,12,836/- covered by the PBG.
81.8 As the first suit was based on the obligation of the bank under
the PBG, and the second suit was based on the liability of NCC to pay
damages to the State for breach of contract, the Supreme Court held
that the reliefs sought in the two suits were based on different causes
of action. Ergo, held the Supreme Court, there being no identity of
causes of action in the two suits, the High Court, as well as the trial
court, had erroneously invoked Order II Rule 2 of the CPC.
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82 Channappa v. Parvatewwa75
82.1 Channappa, the appellant before the Supreme Court, claimed
that he had been adopted by the respondent Parvatewwa on 23 March
1961. Parvatewwa instituted a suit76, before the Bijapur Civil Court,
seeking a declaration that the 1961 adoption deed was null and void
and not binding on her, as well as injunction. The suit was dismissed
by the Civil Judge, against which an appeal under Section 96 of the
CPC was filed by Parvatewwa before the first appellate court.
82.2 During the pendency of the said appeal, Parvatewwa instituted a
fresh suit77 before the Principal Civil Judge, Bijapur, alleging that
Channappa had dispossessed her from property number CTS 121/B78
over which she claimed ownership. The second suit, therefore, sought
declaration of title of Parvatewwa over the suit property and
restoration of possession.
82.3 Channappa filed an application in the second suit, claiming that
it was barred by Order II Rule 2 of the CPC. The application was
rejected by the Trial Court. A writ petition, under Article 227 of the
Constitution, preferred by Channappa thereagainst, was dismissed by
the High Court. Further, by a subsequent judgment dated 24 July
2015, the second suit was dismissed by the Trial Court, inter alia, as
being barred under Order II Rule 2 of the CPC. This decision was
75 2026 SCC Online SC 552
76 “the first suit” hereinafter
77 “the second suit” hereinafter
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upheld by the First Appellate Court. The decision of the First
Appellate Court was reversed by the High Court in second appeal,
holding that Order II Rule 2 of the CPC did not bar the second suit.
82.4 Channappa, through his legal representatives, therefore,
appealed to the Supreme Court.
82.5 The Supreme Court addressed the issue of whether the second
suit was barred by Order II Rule 2 of the CPC, thus:
“20. The doctrine underlying Order II Rule 2, CPC is founded
upon the salutary principle that a defendant ought not to be vexed
twice for the same cause of action and that the plaintiff must claim
all reliefs arising from a single cause of action in one and the same
proceeding. Where a plaintiff omits to claim a relief which he or
she is entitled to claim on the same cause of action, he/she is
precluded from instituting a subsequent suit in respect of such
omitted relief.
*****
22. Applying these principles to the present case, it becomes
evident that Parvatewwa had already approached the court in the
earlier proceedings on the basis of the same underlying dispute
relating to the rights over the suit property. The foundational facts
giving rise to the cause of action, namely the claim regarding
entitlement to the property, were already in existence at the time of
the earlier suit.
23. A comparison of the pleadings and the reliefs sought in Suit
– I and Suit – II demonstrates that the cause of action and subject
matter in both suits are substantially identical. Parvatewwa had, in
the earlier suit, challenged the adoption deed of 1961 and sought
to restrain the defendants from interfering with her alleged rights
over the suit properties. These facts are evident from the pleadings
contained in the plaint filed in Suit – I. From the averments, it78 “the suit property” hereinafter
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becomes clear that the plaintiff was already asserting ownership
and disputing the rights of the defendants in respect of the same
properties. Relevant excerpts from the plaint read thus:
7. …The defendant told the plaintiff that he is the absolute
owner of all the properties of the plaintiff mentioned above
and said that he has every right to get the money after sale
of the properties of the plaintiff. The plaintiff returned to
Bijapur and got all the records, though (sic, through) the
help of Savalagappa and came to know that the defendant
has got entered hisame (sic, his name) to all the properties
of plaintiff in collusion with CTS. Authorities. The plaintiff
also came to know that the defendant has created document
to show that he is the adopted son and the said document of
adoption is registered in the office of Sub-Registrar, Bijapur
on 23.3.1961 itself. This fact of adoption is without the
knowledge of the plaintiff and behind her back…
8. Cause of action:– the cause of action for this suit
arose in the month of September 2002 when the plaintiff
has discovered the fraud played by the defendant creating
documents that he is the adopted son of plaintiff and falsely
got entered his name to all the house properties of the
plaintiff as owner.
*****
11. Prayer:– The plaintiff, therefore, prayer (sic, prays)
that, the court be pleased to:–
a) Pass a decree declaring that the adoption deed
created on 23.3.1961 created by the defendant Showing that
the defendant is the adopted son of plaintiff as null and void
and inconsequence thereof:
b) Pass a decree of perpetual injunction restraining the
defendant or his agents in alienating or transferring the
house and shop properties of plaintiff mentioned in para
No. 2 of the plaint.
(emphasis ours)
24. Despite being fully aware that Channappa had denied her
ownership and had asserted rights on the basis of the family
arrangement deed of 1998, Parvatewwa chose to institute Suit – I
merely seeking injunction simpliciter, without seeking the
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necessary and consequential relief of declaration of title. Once
Channappa had clearly contested Parvatewwa’s ownership in the
pleadings, it became incumbent upon Parvatewwa to seek the
comprehensive relief of declaration of title along with the
consequential relief of injunction. The omission to seek such relief
in Suit – I is significant and cannot be cured through a subsequent
suit. Importantly, there is nothing on record to suggest that
Parvatewwa obtained leave of the court to reserve these reliefs for
a future proceeding.
25. The consequence of such omission is clearly contemplated
under Order II Rule 2(3), CPC, which bars the plaintiff from
subsequently instituting a suit for the omitted relief.
*****
27. In the present case, Parvatewwa herself had pleaded in the
earlier proceedings that Channappa was asserting rights over the
suit properties on the basis of the adoption. The dispute as to the
parties’ respective rights over the property was, therefore, already
in existence at the time of institution of Suit – I. In such
circumstances, the relief of declaration of title and the
consequential relief relating to possession could and ought to have
been claimed in the earlier proceedings.
28. The subsequent institution of Suit – II seeking declaration of
ownership and recovery of possession in respect of the same
property and between the same parties is, therefore, clearly hit by
the provisions of Order II Rule 2, CPC.”
(Emphasis supplied)
82.6 In order to hold that the cause of action in the two suits was the
same, the Supreme Court observed, in paras 22 and 23 of the report,
that Parvatewwa, in her first suit, had already claimed rights over the
suit property and that, therefore, this foundational fact was already in
existence at the time of filing of the second suit. In both the suits,
Parvatewwa was asserting ownership and disputing the right of
Channappa over the same suit property. Despite being aware of the
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fact that Channappa had denied her ownership, Parvatewwa chose to
restrict the first suit merely to seeking an injunction without the
requisite consequent relief of declaration of title. Once the title of
Parvatewwa had been disputed by Channappa, the Supreme Court
held that Parvatewwa was required, in the first suit itself, not only to
seek injunction but also to seek a declaration of title. She could not
restrict the relief in the first suit merely to injunction and postpone the
relief of declaration of title to a subsequent suit without obtaining
leave of the court. The facts, therefore, were held to squarely attract
Order II Rule 2 (3) of the CPC. As the dispute regarding the
adversarial rights of the parties over the suit property was already in
existence at the time of filing the first suit, the relief of declaration of
title and restoration of possession ought to have been claimed in the
first suit itself. A second suit, seeking these reliefs in respect of the
same property between the same parties was, therefore, not
maintainable.
III. Applying the Law
83 The law that emerges from the aforenoted decisions is crystal
clear, and it is not necessary for us to recapitulate it at this stage.
When one applies the principles in the aforesaid decisions to the facts
of the present case, it becomes obvious that the learned Single Judge
is, with due respect, not correct in his finding that the second suit was
barred by Order II Rule 2 of the CPC.
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III.A Suits arose from different causes of action
84 The first suit was specifically in terms of Section 142 of the
Trademarks Act and Section 60 of the Copyright Act, which expressly
and statutorily entitle a plaintiff, who apprehends initiation of
frivolous proceedings against him for infringement and the like, to sue
for a declaration to the effect that the threats are groundless and that
there is in fact no infringement committed by him. In the very nature
of the relief that Section 142 envisages, a declaration that there is no
infringement committed by the plaintiff is necessary, as it is only then
that the plaintiff can assert that the threats held out by the defendant
are groundless.
85 As against this, the relief sought in the second suit was by way
of an injunction against disparagement by the Sanjay Sonavane and
the various operators operating YouTube and the news channels over
which the allegedly disparaging material was broadcasted to the
public. Thus, the relief sought in the two suits were fundamentally
distinct from each other. Prima facie, therefore, they arose from
different causes of action, applying the law laid down in the
aforenoted decisions, particularly Rathnavathi.
86 The mere fact that the reliefs were distinct may not, however,
by itself, be sufficient to hold that Order II Rule 2 would not apply. If
(i) the facts which were required to be established by Castrol to
succeed in the reliefs claimed in the first suit were the same as the
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facts which Castrol would be required to establish to succeed in the
second suit, thereby resulting in identity of causes of action and (ii)
the relief in the second suit could be claimed on the basis of the facts
constituting the cause of action in the first suit, the second suit would
nonetheless be barred by Order II Rule 2, despite the reliefs in the two
suits being qualitatively different.
87 It is necessary, therefore, to ascertain the facts which were
required to be asserted and proved by Castrol to succeed in its claim to
the reliefs sought in the first suit, to identify the causes of action in
that suit. If these causes of action are identical, the court has thereafter
to examine whether the reliefs claimed in the second suit could be
sought on the basis of the cause of action in the first suit. If this issue
is also answered in the affirmative, the second suit would be barred by
Order II Rule 2 of the CPC.
88 The first suit, as we have noted, sought an injunction against
groundless threats allegedly held out by Sanjay Sonavane. Groundless
threats have absolutely nothing to do with disparagement.
Disparagement essentially requires damage to the reputation of the
plaintiff, and the reputation of the plaintiff has nothing to do with a
plea for injunction against groundless threats.
89 The facts that Castrol was required to establish in order to
succeed in the first suit were, therefore, that (i) Castrol had not
infringed Sanjay Sonavane’s trademark or copyright, and (ii) Sanjay
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Sonavane was, despite this fact, acting in a manner which created an
apprehension that groundless legal proceedings were being sought to
be instituted against Castrol. Neither of these elements has any
relevance to the relief in the second suit, which dealt with
disparagement.
90 As against this, in the second suit, the grievance of Castrol was
that Sanjay Sonavane was disparaging it. To succeed in the reliefs
claimed in this suit, Castrol has to establish (i) that Sanjay Sonavane
and the other defendants were responsible for circulating material such
as YouTube videos and news reports against Castrol and (ii) the said
material had resulted in lowering of the reputation of Castrol in the
eyes of the public, and was, therefore, disparaging in nature.
91 The aspect of whether Castrol was an infringer of Sanjay
Sonavane’s products and the threats held out by Sanjay Sonavane
which constituted the basis of the first suit were, therefore, not
required to be established to succeed in the claim in the second suit.
The claim in the second suit was based, not on the threat held out by
Sanjay Sonavane to Castrol, but on the dissemination, amongst the
public, of news items and YouTube videos publicising the acts of
Sanjay Sonavane against Castrol and making unwarranted allegations
on the basis thereof.
92 There being clear difference between the facts which were
required to be established by Castrol to succeed in its first suit against
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Sanjay Sonavane and those which were required to be asserted and
established to succeed in its second suit against Sanjay Sonavane, the
causes of action in the two suits were completely different.
93 Whether, therefore, one were to view the causes of action from
the point of view of the reliefs sought in the two suits, or from the
point of the view of the facts which Castrol would be required to
assert and establish in order to succeed in obtaining the said reliefs,
there was complete dissociation between the causes of action in the
two suits. That the suits may have emanated from a bouquet of
similar, or even interconnected facts – it cannot even be said that they
arose from the same facts – would not make a difference to the fact
that the causes of action in the suits were distinct and different.
94 As the Supreme Court has repeatedly held while dealing with
Order II Rule 2, what the provision proscribes is segregation of reliefs
which can be claimed from a single cause of action. What it requires
is, therefore, uniting, in one suit, of all reliefs which are available
under a common cause of action.
95 Order II Rule 2 does not even envisage, much less require,
combination of different causes of action in a single suit, even if the
facts which are stated in the plaints in the suits, may overlap to some
extent. It is not overlap of facts which is the definitive test; it is
identity of causes of action. Coupled with identity of causes of action,
the defendant would have to establish that the relief sought in the
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second suit are available from the cause of action pleaded in the first
suit, in order for an objection under Order II Rule 2 to succeed.
96 These requirements are woefully lacking in the present case.
With great respect to the learned Single Judge, we are of the opinion
that the impugned judgment has proceeded on the premise that the
facts stated in the second suit, to some extent, were pleaded in the first
suit and were known to Castrol at the time when the first suit was
instituted. Even if this were to be correct, they would not result in the
second suit being barred by Order II Rule 2 until the causes of action
in the two suits, which itself would depend on the reliefs claimed in
the two suits, were found to be identical.
97 Similarity of facts, or even identity of pleadings, and knowledge
of the facts pleaded in the second suit at the time when the first suit
was filed, would not ipso facto bar the second suit under Order II Rule
2 of the CPC, where the two suits are founded on different causes of
action. At the cost of repetition, the CPC does not require all causes
of action, which may arise from one set of facts, to be united in one
suit.
III.B Second suit involved facts which took place after first suit was
filed
98 Besides, there is also substance in Mr. Roomi’s submission that,
on the date of institution of the first suit, Castrol was unaware of the
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involvement of Sanjay Sonavane in the circulation of the allegedly
disparaging videos and articles amongst the public. It is only when
Sanjay Sonavane circulated the news articles and YouTube videos on
WhatsApp groups that Castrol understood that Sanjay Sonavane was
responsible for the said disparaging material. At the stage of
institution of the first suit, the allegation in para 38 of the plaint that
Sanjay Sonavane must have been involved in the disparaging material
was merely an apprehension and it was expressly so stated. It was for
this reason that Castrol did not implead YouTube or any of the other
defendants impleaded in the second suit, who disseminated the
allegedly disparaging material over their platforms/news channels, in
the first suit. We find substance in Mr. Roomi’s submission that, as no
conclusive material to link Sanjay Sonavane to the disparaging
YouTube videos and news articles was available with Castrol at the
time of institution of the first suit, no relief with respect to
disparagement was claimed therein.
99 The circulation of the YouTube videos and news articles over
WhatsApp, by Sanjay Sonavane, admittedly took place after the first
suit had been instituted. This circulation was an essential fact which
Castrol was required to plead in the second suit in order to substantiate
its allegation that Sanjay Sonavane was the moving force behind the
allegedly disparaging videos and articles. This fact was not even in
existence at the time when the first suit was instituted. It could not,
therefore, have been pleaded in the first suit. At the same time, it was
an essential part of the pleadings in the second suit. That being so, it
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was impossible for Castrol to have pleaded the essential facts to
maintain the relief sought in the second suit, when the first suit was
filed.
100 Even for this reason, therefore, it cannot be said that Castrol
split the reliefs which could be claimed on the basis of the cause of
action pleaded in the first suit, so as to render the second suit barred
by Order II Rule 2 of the CPC.
III.C Evidence required to support claims in two suits was different
101 The decisions cited earlier also identify, as another test on the
basis of which it can be decided whether there is identity of causes of
action between the two suits, the test of whether the evidence which is
required to support the claims in the suit is the same. If the claims in
the two suits can be supported on the basis of the same evidence, the
causes of actions are identical, failing which they are not.
102 Even if one views the present case through the evidentiary
prism, it becomes clear that the evidence which Castrol would have to
lead to obtain the relief sought in the two suits is totally different. In
the first suit, Castrol would have to lead evidence to establish that it
was not infringing the registered trademark or copyright of Sanjay
Sonavane. Additionally, it would have to lead evidence to establish
that the criminal proceedings as well as the legal notice were issued at
the instance of Sanjay Sonavane and that they gave rise to reasonable
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apprehension, in the mind of Castrol, that legal proceedings were at
the cusp of initiation. As against this, in the second suit, Castrol
would have to lead evidence to establish that (i) Daily Bhramar,
Maharashtra Bulletin and Saksham Times Media Foundation,
impleaded in the second suit had in fact put up allegedly disparaging
YouTube videos and circulated the news articles, (ii) Sanjay Sonavane
was responsible for doing so, and (iii) by such dissemination, there
had been damage to the reputation of the Castrol and its products.
There is, therefore, hardly any overlap between the evidence which
Castrol would have to lead in order to succeed in the first suit and that
which it would have to lead to succeed in the second. Even on this
touchstone, therefore, the causes of action in the two suits are
markedly distinct and different.
III.D. Conflation of the causes of action and the transactions from
which the causes of action stem
103 The decision in Cuddalore Powergen underscores the
distinction between the cause of action and the transaction from which
the cause of action stems. One transaction may result in more than one
causes of action. The fact that the transaction is the same does not
necessarily imply that the causes of action arising therefrom are the
same. If different causes of action, based on different grievances,
arising from the same transaction, exist, Order II Rule 2 does not
require all causes of action to be combined in one suit. At the cost of
repetition, what the provision requires is that all reliefs which can be
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claimed on the basis of a common cause of action should be claimed
in one suit.
104 Once this distinction is understood, the error in the manner in
which the learned Single Judge proceeds become apparent. Sanjay
Sonavane issued a legal notice to Castrol and also filed a criminal
complaint against Castrol, alleging infringement, by Castrol, of its
registered trademark and copyright. At the instance of Sanjay
Sonavane, a raid was also conducted at the premises of Castrol, during
which seizure took place. These facts were publicised in the social and
print media as well as through clips on YouTube and other social
media platforms. As a result, there was damage to the reputation and
standing of Castrol and its products, resulting in disparagement. The
fact that the clips and the news items were circulated by Sanjay
Sonavane over WhatsApp, indicted that Sanjay Sonavane was also
complicit in the act of disparagement of Castrol.
105 This is the sequence of events – or, as one may say, the bouquet
of facts – on the basis of which Castrol instituted the two suits. Even
if these facts are cumulatively treated as constituting one transaction –
which, in fact, they do not – they give rise to different and distinct
causes of action which were separately ventilated in the two suits.
These causes of action arose at different and distinct stages of the said
sequence of events. The first cause of action, of groundless threats and
forming the basis of the first suit, ended with the issuance of caution
notice by Sanjay Sonavane and the police complaint lodged by him,
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resulting in the raid at the premises of Shivay Agencies. The second
cause of action, of disparagement, arose later, when these facts were
publicized by Dainik Bhramar, Maharashtra Bulletin and Saksham
Times Media Foundation and by Sanjay Sonavane.
106 The causes of action for the two suits were, therefore, different,
arising from different facts and at different stages, even if the facts
from which the second suit arose followed those from which the first
suit arose. Even if these facts formed one sequence, that would not
equate the causes of action in the two suits. They give rise to a cause
of action against Sanjay Sonavane for issuing groundless threats, as
Castrol claimed that it did not infringe the trademark or copyright of
Sanjay Sonavane at any point of time. Separately, they give rise to a
cause of action against disparagement which took place as a
consequence of publicising the events leading up to the raid and the
adverse comments made in that regard both in the social and print
media. Sanjay Sonavane, by circulating this material on WhatsApp,
became complicit in the act of disparagement.
107 Thus, applying the principle that Order II Rule 2 of the CPC
does not require combination, in one suit, of different cause of action
which may arise from the same transaction – in the present case,
arguendo, from one sequence of events – Castrol cannot be prohibited
from filing distinct suits ventilating the different causes of action.
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108 The impugned judgment conflates the facts on the basis of
which the causes of action have arisen with the causes of action
themselves. With respect, it appears that the learned Single Judge
assumed that there was commonality of cause of action merely
because the factual milieu was the same, or largely similar.
III.E. Re. the finding that one suit could have been filed and amended
to add later facts – the bar of Order II Rule 3
109 The learned Single Judge has also observed that, even if the
facts relating to the involvement of Sanjay Sonavane in the alleged
disparagement took place, or came to the knowledge of Castrol after
the first suit was filed, Castrol could have claimed relief against
disparagement in the first suit and thereafter sought to amend the first
suit to include the facts which came to its knowledge later. With great
respect, there are two reasons why we cannot sustain this finding.
110 In the first place, in the absence of any material to link Sanjay
Sonavane to the alleged acts of disparagement, even if disparagement
were to be pleaded in the first suit, it could have been pleaded only
against Dainik Bhramar, Maharashtra Bulletin and Saksham Times
Media Foundation, none of whom was a defendant in the said suit.
The learned Single Judge has observed that Castrol could have joined
them as defendants in the first suit and included, therein, the plea of
disparagement/defamation and the reliefs predicated thereon, which
were claimed in the second suit.
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111 We are unable, with respect, to sustain this finding. Different
causes of action can be united in one suit, under Order II Rule 3(1)79,
provided they are against the same defendants. Dainik Bhramar,
Maharashtra Bulletin and Saksham Times Media Foundation have
nothing whatsoever to do with the cause of action in the first suit,
which is directed against groundless threats being held out by Sanjay
Sonavane and asserts that there is no infringement, by Castrol, of
Sanjay Sonavane’s trademark or copyright. Including the cause of
action relating to disparagement and damages on that score in the first
suit and impleading, for that purpose, Dainik Bhramar, Maharashtra
Bulletin and Saksham Times Media Foundation as defendants, would
result in one suit combining different causes of action against different
defendants, which Order II Rule 3 does not permit.
112 Secondly, if the causes of action are different, and the facts
which constitute essential elements of the cause of action required to
be pleaded in the second suit were unknown to the plaintiff at the time
when the first suit was filed, the court cannot reject the second suit
under Order II Rule 2 merely by holding that the plaintiff could have
instituted the first suit covering both the causes of action and later
amended its suit. The possibility and permissibility of such
amendment, even if it were presumed to exist, cannot be a governing
79 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.
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consideration while examining whether the second suit was barred by
Order II Rule 2 of the CPC.
G. Conclusion
113 For all the aforesaid reasons, we are of the opinion that the
impugned judgment, in holding that the second suit instituted by
Castrol was barred by Order II Rule 2 of the CPC, cannot sustain on
facts or in law.
114 Resultantly, the impugned judgment is quashed and set aside.
CS (Comm) 946/2025 would stand restored to the file of the learned
Single Judge for further proceedings in accordance with law.
115 The appeal stands allowed accordingly, with no orders as to
costs.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
APRIL 20, 2026
dsn/AR
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