Whether plaint is liable to be rejected if relief claimed is barred by O 2 R 2 of CPC?

Civil Procedure Code, 1908 - Order II Rule 2 r/w Order 23 Rules 1 and 3 and Order 7 Rule 11(d) - Rejection of plaint - Relinquishment of a claim of declaration in earlier suit - No leave of the Court sought under Order 23, Rule 1 - Relief of declaration in the subsequent suit barred under Order 2 Rule 2 - Plaint liable for rejection under Order 7 Rule 11(d).

A bare perusal of the provisions in Order 2 Rules 1 to 3 of Civil Procedure Code, 1908 make it clear that they are mandatory in nature. The term "shall" and not "may" occurs in all the rules. Thus under Order 2 Rule 1, the Plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. As noticed earlier the plaintiffs have claimed identical relief of declaration in Suit No. 58 of 1998. The plaintiffs could have made an application in that suit to relinquish the relief of declaration with liberty to seek the same relief in the present suit. This application would have to be made under Order 23 Rule 1 of the C.P.C., seeking leave of the Court to pursue the relief of declaration in the present suit. The Court may at its discretion grant liberty to the plaintiffs to pursue the relief of declaration in the present suit. The plaintiffs would have to satisfy the Court that there are sufficient grounds for allowing the plaintiffs to continue with the relief of declaration in the present suit. But that application could have been made in the earlier suit and not in the present suit. This permission cannot be indirectly granted in this suit by accepting the statement of the learned Counsel for the plaintiff that they have "elected" to press for the relief of declaration in this suit rather than in the present suit. Accepting this proposition would render the provisions of Order 2 Rules 1 and 2 read with Order 23 Rules 1 and 3 nugatory. It was incumbent on the Plaintiffs to seek leave of the Court in Suit No. 58 of 1998 for liberty to claim the same relief in the present suit. The requisite permission not having been obtained by the Plaintiffs in Suit No. 58 of 1998, the present relief of declaration is clearly barred under Order 2 Rule 2. Thus the plaint has to be rejected under Order 7 Rule 11(d) .

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 1272, 1638 and 1663 of 1999 in Suit No. 2352 of 1999

Decided On: 10.09.1999

SNP Shipping Services Pvt. Ltd. & others  Vs. World Tanker Carrier Corporation & another

Hon'ble Judges/Coram:

S.S. Nijjar, J.

Citation: 2000 (2) Mh.L.J. 570 

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