PLD 2023 Lahore 601
A cursory look at the provision of order II Rule 2 indicates that it has the following three main aspects
(i) Every suit shall include the whole of the claim a plaintiff is entitled to make in respect of a cause of action; the plaintiff can, however, relinquish any portion of his claim;
(ii) where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make, he shall not afterwards be permitted to sue for the portion of the claim that has been omitted or relinquished;
(iii) where a plaintiff is entitled to more than one relief on a particular cause of action, he may sue for all or any of such reliefs. Omission to sue for all such reliefs, except with the leave of the court, shall preclude him from bringing a subsequent suit to claim the relief so omitted.
Section 11 embodies the principle of res judicata which provision assumes decision on merits in the former suit as per its explanation I. The text of Order II Rule 2, however, does not command the decision in the first suit. The precedents cited by the petitioners also do not support such principle. The case of In simple terms the principle of res judicata states that where there is a judgment inter partes a fresh suit on the same subject matter shall be barred. The principle contained in Order II Rule 2 by contrast simply bars the second suit in case the plaintiff omitted or relinquished the claim/relief that he could seek in the first suit. Where the Code required, as in section 11, it expressly stated its intention of having a final decision in the prior proceedings. There is, therefore, a marked difference between the two principles. The rule of claim/relief splitting in its exposition and despite its subtleties does not admit of a construction requiring mandatorily a final decision on merits in the first suit.
There is a valid exception to the rule to which I shall shortly advert to. It is clear that a determination that a suit is barred under Order II Rule 2 CPC can only translate into rejection of plaint under the provisions contained in Order VII Rule 11 CPC.
The principle underlying Order II CPC cannot be properly grasped without considering the principle of joinder of parties and joinder of causes of actions. The two suits filed by the petitioners involved joinder of plaintiffs and defendants. The provisions of Order I Rules 1 and 3 provide guidelines for who may be joined as plaintiffs and defendants. Rule 1 of Order 1 states that all persons may be joined as plaintiff in one suit in whom any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative. The provision also specifies the test for such joinder to the effect that if separate suits were brought by such persons, any common question of law or fact would arise. Rule 3 is a similar provision regarding the joinder of defendants. Order II Rule 3 permits for joinder of causes of actions by a plaintiff in the same suit against the same defendant or the same defendants jointly. Order II Rule 4 qualifies the scope of joinder of causes of actions concerning recovery of immovable property by making leave of court as a necessary pre-condition. There are, however, certain exceptions to the rule one of which is where claim in which the relief sought is based on the same cause of action. These provisions illustrate that two or more causes of action and remedies may now be secured in a single action and by extension making it permissible for joinder of parties. The rule of joinder of parties and causes of actions informs that any narrow interpretation limiting the scope of cause of action to a single legal claim may limit or even prevent the effective operation of these provisions.
It can thus be seen that the Code provides a fairly liberal regime for joinder of parties and causes of action. The Code made these provisions not on account of any problem relating to pleading rather what was aimed at was that all the matters at issue between the parties or set of parties should be settled as shortly and speedily as possible through one action.
The rule prevents the plaintiff from splitting the claims and the reliefs which are based on the same cause of action with the aim that a single cause should not be segregated among several suits. The objective appears to safeguard against the defendant being vexed twice in respect of the same cause of action underpinning the claim. In case of omission to sue or intentional relinquishment of a claim, the rule places a bar on bringing a subsequent action in regard thereto. Similarly, the rule compels a plaintiff to sue for all reliefs arising from the same cause of action and in case of his omission to do so he shall be barred from that relief in a subsequent suit except where he took the leave from the court.
The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I & II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass, 34 Okla. 5, 124 P. 960, the Court stated that “There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded.” Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.
Cause of action --- Scope --- Cause of action comprises material facts constituting right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it --- Cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates right to sue which gives rise to a claim enforceable in court --- Each cause of action consists of points the plaintiff must prove , and all such elements must be satisfied before Court can take action --- Such broad categorization of O. II , R. 2 , C.P.C. is in accord with the scheme of Civil Procedure Code , 1908 .
S.11 & 0.II. R.2 --- Principle of res judicata and bar agains splitting of claim --- Scope and distinction --- Principle of res judicata states that where there is a judgment inter parties a fresh suit on the same subject matter is barred -- Principle contained in O. II , R. 2 , C.P.C .. by contrast simply bars second suit in case plaintiff omitted or relinquished any claim / relief that he could seek in the first suit --- Where Civil Procedure Code . 1908 , required . as in S. 11 , C.P.C. , it expressly stated its intention of having a final decision in prior proceedings - There is a marked difference between the two principles - Rule of claim / relief splitting in its exposition and despite its subtleties does not admit of a construction requiring mandatorily a final decision on merits in the first suit .
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