Purna Medium Project Division vs Y.R. Reddy And Anr.
2003 Latest Caselaw 1124 Bom

JUDGMENT

S.A. Bobde, J.

1. By this Civil Revision Application, the Executive Engineer, Purna Medium Project Division (defendant No. 2) in a suit filed by the respondent No. 1, M/s Y.R. Reddy, Engineers and Builders, challenges the order dated 24-4-2001 by which the trial Court has allowed the respondent No. 1 to withdraw the suit instituted by it with liberty to file a fresh suit.

2. The respondent No. 1 M/s Y.R. Reddy, Engineers and Builders, hereinafter referred to as the "contractor", was awarded a contract for doing certain work. That contract was terminated on 16-6-2000 on the ground that the contractor had only done 23.77% of the work in 100% of time. After the contract was terminated, the Executive Engineer issued a notice dated 6-8-2000 inviting tenders for award of the said work to other contractors.

3. The contractor, therefore, instituted Regular Civil Suit No. 470 of 2000 in the Court of the Civil Judge, Senior Division, Amravati, and sought, inter alia, an injunction to get all the contract work entrusted to the contractor completed under the supervision of the competent authority in the presence of a representative of the contractor. Incidentally, the contractor sought a mandatory injunction directing the applicant herein to get technical measurement of the work done by the contractor under proper supervision before issue of the work order to the new agency under the tender notice dated 6-8-2000. The contractor also sought a mandatory injunction to complete the measurement process in the present state of affairs before commencement of further work by the new agency.

4. One more feature of the plaint is that the contractor consciously omitted to sue for any monetary relief in respect of the termination of the contract on the ground that the notice under Section 80 of the Civil Procedure Code had not been issued and served on the petitioner and, therefore, sought liberty to make a monetary claim after issue of such notice. In fact, even in the prayer Clause (b), the contractor reserved the right and liberty to bring a separate action to claim relief arising out of the contract agreement to which it considers itself entitled under different heads. In addition, the contractor applied for permission under Order 2, Rule 2 of the Civil Procedure Code to accord sanction and approval for filing of a subsequent suit to claim monetary relief of damages for grounds and reasons set out in the notice under Section 80. This has not been decided.

5. Before the application under Order 2, Rule 2 could be decided, the contractor sought permission to withdraw the suit in its entirety with liberty to institute a fresh suit. This has been allowed by the trial Court by the impugned order which is under challenge in this C.R.A.

6. Mr. Gilda, learned counsel for the applicant, submitted that the application under Order 2, Rule 2 not having been decided, the Court has committed an error of law in allowing the contractor to withdraw the suit and institute a fresh suit. According to the learned counsel, it was necessary for the Court to first decide the application under Order 2, Rule 2 before allowing the withdrawal of the suit with liberty to file a fresh suit on the same cause of action.

7. Mr. Bhandarkar, learned counsel for the respondent No. 1, submitted that a plaintiff has an unconditional right to apply for the withdrawal of the suit and for permission to file a fresh suit. According to the learned counsel, this right is not dependant on, and such an application has nothing to do with the grant of an application under Order 2, Rule 2. Therefore, the order of the trial Court allowing withdrawal of the suit is, in accordance with law.

8. Now there is no dispute about the fact that the earlier suit, viz., Regular Civil Suit No. 470 of 2000 and the second suit that has been filed pursuant to the liberty granted by the Court i.e. Civil Suit No. 78 of 2001 are based on the same cause of action, viz., the termination of the respondent's contract of 16-6-2000 and the issue of a fresh tender notice dated 6-8-2000. In the first suit, as observed earlier, the plaintiff has claimed the relief that the contract which was granted to it be allowed to be completed under the supervision of the competent authority and a monetary injunction of measurement of the work already done by them be taken. In this suit, the plaintiffs have reserved their right to claim monetary relief arising out of the termination of the contract. Thus, both the suits are based on the same cause of action.

9. The question that arises for determination is whether the contractor ought to have been allowed to institute a fresh suit without their application under Order 2, Rule 2 made in the earlier suit having been decided. Order 2, Rule 2 of the Civil Procedure Code reads as follows :--

"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 due 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."

Sub-rule (3) above bars the plaintiff from suing for any relief which he has omitted to sue for unless the plaintiff has obtained leave of the Court. Thus, on a plain construction of Sub-rule (3), a plaintiff who has omitted to sue for any relief in respect of the same cause of action is not entitled to sue for any relief so omitted, except with the leave of the Court. This provisions is based on sound public policy. In fact, the Supreme Court while considering the principle of res judicata based on public policy observed that it is intended to prevent a litigant from agitating the same cause of action over and over again has observed in State of U.P. v. Nawab Husein, :--

"But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process."

The above observation would equally apply to the principle underlying Order 2, Rule 2.

10. In Deva Ram v. Ishwar Chand, , the Supreme Court has observed as follows :--

"Order 2, Rule 2, Civil Procedure Code requires the unity of all claims based on the same cause of action in one suit, 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 defendants in both the suits, cannot be vexed twice by two separate suits in respect of the same cause of action."

The facts of this case, however, presents a difference without a distinction and that is as follows. The attempt on the part of the contractor is not to file another suit during the pendency of the earlier suit. It is to withdraw the earlier suit and file another suit in an attempt to show that what is now being filed is entirely a fresh proceeding claiming an entirely different relief. This, in my view, is not permissible. The basic principle is that the law prohibits the adjudication of the same cause of action in several proceedings. A plaintiff cannot be allowed to seek different reliefs at different times in different proceedings, if they arise from the same cause of action. Therefore, it is clear that if the plaintiff has sued in respect of a cause of action and has omitted to sue for a certain relief, it is clear that he can sue for the relief so omitted only with the leave of the Court. In the present case, the plaintiff has omitted to sue for a certain relief and has, therefore, applied for leave of the Court to sue for such omitted relief under Order 2, Rule 2. Now it is clear that he cannot be allowed to sue for such relief which he has omitted to sue for without the leave of the Court by simply withdrawing that suit and filing a fresh suit, this is all the more so because filing a fresh suit for another relief based on the same cause of action would result in a clear breach of that part of Sub-rule (3) of Order 2, Rule 2 which bars a plaintiff from afterwards suing for any relief so omitted. It is well-settled that a party may not be allowed to do indirectly what it is prohibited from doing directly. In State of Maharashtra v. National Construction Co., , the Supreme Court has observed as follows:--

"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. One of the tests for determining whether Order 2, Rule 2, Civil Procedure Code would apply in a particular situation 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. 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."

In the present case, since the claim in the new suit is not founded upon a new cause of action but is founded on the same cause of action of the former suit, the order of the trial Court allowing the plaintiff to withdraw the earlier suit and file a fresh suit without deciding the plaintiffs application under Order 2, Rule 2 filed in the earlier suit is not in accordance with law, since it results in enabling the plaintiff to sue for a relief which he has omitted to sue for earlier without leave of the Court.

11. It is not possible to accept the contention on behalf of the respondent that the plaintiffs application for withdrawal of the suit under Order 23 must be considered independently of the fact that the plaintiffs application under Order 2, Rule 2 has not yet been decided. In a recent decision in K.S. Bhoopathy v. Kokila, AIR 2000 SC 2132, the Supreme Court has observed as follows:--

"The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action."

Apart from the above, with respect, I am of view that the Court while considering an application for withdrawal of the suit is bound to consider whether the grant of such permission would breach the mandate of any provision of law, particularly where it is entitled to prevent the vexation of a litigant such as Order 2, Rule 2.

12. In this view of the matter, the Civil Revision Application is allowed. The impugned order is set aside. The trial Court is directed to decide the application under Order 2, Rule 2 (exh. 35) and the application filed by the defendants about the tenability of the plaintiffs first suit.