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Can a person file a fresh suit in respect of the same cause of action when he has, in a former suit, relinquished part of his claim? (Civil Procedure Code, 1908)

January 13, 2019 0 Comment

He is not entitled to split his cause of action into parts and bring separate suit in respect of each part. If he omits to sue in respect of, or intentionally relinquishes, any portion of his claim arising from the same cause of action, he will be precluded from suing in respect of the portion so omitted or relinquished. But the omission does not bar a second suit if the plaintiff was unaware of his claim or the fact which constitutes a cause of action.

The principle behind the provisions of O. 2, R. 2, C.P.C., is that the defendants should not be twice vexed for one and the same cause of action. The conditions which are essential for attracting the provisions of O. 2, R. 2 C.P.C. are:

(1) That the previous and the present suit must arise out of the same cause of action;

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(2) That in respect of the same cause of action the plaintiff was entitled to more than one relief; and

(3) That without the leave of the court the plaintiff omitted to sue for the relief for which the second suit had been filed. A test to find out whether the cause of action is the same is to see whether the same evidence will sustain both the suits.

It is not necessary that in order to constitute the same cause of action all the allegations made in the two suits should be exactly identical. A cause of action consist of all facts which it is essential for the plaintiff to allege and to establish and which taken with the law applicable to him gives the plaintiff a right against the defendant. It has also been defined by the courts as all essential facts constituting the right and its infringement. [Ram Chandra Prasad v. Mulhteshwar Nath, 1975) (1) A.L.R. 554].

When a person is entitled to more than one relief in respect of the same cause of action, he may sue for all the reliefs or he may sue for one or more of them and reserve his right with the leave of the court to sue for the rest.

If no such leave is obtained he will be precluded from afterwards suing for any relief so omitted. But if the right to the relief in respect of which a further suit is brought did not exist at the date of the institution of the former suit, the subsequent suit is not barred.

Exceptions to the rule of splitting of claims:

1. Rule 2 of Order 2 does not apply to application for execution. An application for partial execution is not a bar to subsequent application for execution of the rest of the decree.

2. Failure to claim set off is no bar to a subsequent suit.

3. The bar of O. 2, R. 2, C.P.C. may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution.

(c) No. A shall not afterwards sue B for the rent due for 1973 or 1975.

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