2024 CLC 1468
(a) If the second suit, which was pending at the time of unconditional dismissal as withdrawn of the first suit, is liable to be rejected under the bar contained in Order XXIII Rule 1(3) of CPC?
(b) If the very institution of the second suit was just a ploy to defeat the interest of justice or the object of the above provisions?
Order II Rule 1 of CPC requires every suit to include whole claim in respect of the cause of action in one suit. Claimants are permitted to relinquish any portion of their respective claims. Order II Rule 2 of CPC provides that where a plaintiff omits to sue in respect of or intentionally relinquish, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Order II Rule 3 of CPC requires leave of the Court, to sue for the claim that the plaintiff was entitled but he omitted, provided his case is covered thereunder. However, Order XXIII, Rule 1(3) of the CPC reads that where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission under subrule 2, he shall be precluded from instituting any fresh suit.
0ne of the common principles engrafted in Order II as well as Order XXIII of CPC is that unless the Court is satisfied as to the reasons given in the relevant rules of the said Orders, the defenders should not be subjected to more than one suits for the same cause. It is significant to notice that in Order II Rule 2 of CPC the legislature has used words where a plaintiff omits to sue… shall not afterwards sue. Likewise, Rule 2 of the said Order says that a person if entitled to more than one relief may sue for all or any of such relief, but if omits, except with the leave of the Court….he shall not afterwards sue for any relief so omitted. The word „afterwards’, in the above rules, is not used with reference to decision of cases. It is used with regard to the word “sue”, therefore, the relevant Courts, when the pendency of the earlier suit is disclosed, can control the situation by taking an action, at earliest. When it comes to the surface that filing earlier suit is not disclosed in the subsequent, the learned trial Courts are sufficiently empowered to curb and regulate such situation on account of nondisclosure of fatal information.
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