Law: Civil Procedure Code (V of 1908)

Section: O. II, r. 2

Civil Procedure Code (V of 1908) O. II, r. 2-Proper construction of-M entering into agreement with A whereby latter sold his compensation book for Rs. 4,320-F standing as surety and vouchsafing genuineness of compensation book and undertaking at the same time that if book found bogus he would pay Rs. 3,000 to M-Book found bogus by Settlement Authorities-M filing suit against Settlement Authorities but in the suit omitting to implead F or claiming any relief against him-On dismissal of suit M filing suit against F-Second suit against F, held, barred. Rule 2 of Order II of the Civil Procedure Code is to be construed thus : (1) The correct test in cases falling under Order II, rule 2, 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". (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The cause of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers . . . to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. This observation was made by Lord Watson in a case under section 43 of the Act of 1882 (corresponding to Order II, rule 2), where plaintiff made various claims in the same suit. M entered into agreement with A whereby the latter sold his Compensation Book (issued by the Settlement Department) to him for Rs. 4,320. In the agreement F was a surety and he vouchsafed the genuine ness of the compensation book and gave an undertaking that if the book turned out to be bogus he would pay Rs. 3,000 to M. The book was discovered to be bogus by the Settlement Authorities whereupon M was served with a notice why the transfer order of a house in his favour on the basis of the compensation book be…