1983 PLP 482 (CLC)

The defendant has filed this application under Order 11, rule 2, C. P. C. praying that as the plaintiff has intentionally relinquished and omitted a claim of Rs. 27,320.78, before the Special Court the suit is liable to be dismissed. Briefly the facts are that the defendant bank had filed a suit in this Court bearing No. 365/79. The plaintiff filed his written statement in that suit and pleaded that the bank had failed to credit a sum of Rs. 1,29,110.00, and therefore they are not entitled to claim any amount and have no cause of action against him. The plaintiff filed a counter‑claim alongwith written statement valued at Rs. 27,236.78, and prayed for decree against the bank for the said amount. During the pendency of suit Banking Companies (Recovery of Loans) Ordinance was promulgated. Consequently the suit was transferred to the Special Court establishment under the said Ordinance. The Special Court by its order dated 12‑3‑1980 held that as the counter claim is for an amount less than Rs. 1 lac it had no jurisdiction to entertain it. The Advocate for the plaintiff made a statement there that the plaintiff would raise the counter‑claim to more than Rs. 1 lac and will pay court‑fee after moving application for amendment. The said Court ordered that the counter‑claim shall be entertained only after such an application was moved and granted so as to bring that counter‑claim within the jurisdiction of the Special Court. On the next date of hearing the Advocate for the plaintiff stated before the Special Court that the plaintiff does not want to file counter‑claim in that Court and wants to amend the written statement. Accordingly the case was adjourned and the plaintiff was required to file amended written statement. The plaintiff filed amended written statement from which the counter‑claim was deleted but setoff was pleaded. The said Court therefore directed the plaintiff to pay court‑fee on the amended written statement which included claim of set off. In the amended written statement the plaintiff had contended that various bills were entrusted to the bank but they failed to collect those bills for Rs. 1,29,110.06, and deposit the same in the account of the plaintiff. It was pleaded that if the said amount would have been credited in the account of the plaintiff it would have been in credit of Rs. 27,362.78 and the bank would not have been entitled to claim the amount in suit and interest. It bad been pleaded that the plaintiff has suffered loss due to negligence of the Bank. After the amended written statement was filed by the plaintiff be ore the Special Court he filed the present suit for recovery of Rs. 27,362.78. From the facts stated above it is clear that the defence of the plaintiff before the Special Court is based on the same facts and cause of action on the basis of which the present claim has been made. The learned counsel for the defendant has contended that as the plaintiff while filing written statement before the Special Court has relinquished his claim he is not entitled to file the present suit as it is barred under the provisions of Order 11, rule 2, C. P. C. From the documents placed on record it is clear that from the very beginning the plaintiff was making a counter‑claim against the bank for Rs. 27,262.78. This counter‑claim was not admitted by the Special Court on the ground that it had no pecuniary jurisdiction to entertain it. Order 11, rule 2, C. P. C. provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled on a cause of action then the plaintiff would not be entitled afterwards to sue in respect of the portion of claim so omitted or relinquished. But where the plaintiff is entitled to more than one relief in respect of the cause of action and fails to seek all the reliefs then he can ask for it only with leave of the Court. The provisions of Order 11, rule 2 therefore clearly distinguish between claim and relief. A claim once omitted or relinquished cannot be made subject‑matter of a subsequent suit on the same cause of action. In case a relief is omitted the plaintiff would be precluded from afterwards suing for any relief so omitted. B However, Order 11, rule 2(3) provides an exception and if the omission is with the leave of the Court then this bar will not apply. The bar provided by Order 11, rule 2 shall apply where the previous and subsequent suits are based on the same cause of action. Reference can be made to Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (PLD1948PC131), Abdul Hakim v. Saadullah Khan (PLD1970SC63) and A I R 1935 Lah.

672. Another condition for applicability of Order 11, rule 2, C. P. C. as held in P L D 1970 S C 63 is that in both the suits the parties should be same. It is thus well‑settled that the law does not permit splitting of claim arising out of the same cause of action, as a party cannot be vexed twice for the same cause and it will avoid multiplicity of suits. It has now to be examined whether the plaintiff omitted to sue in respect of the claim and intentionally relinquished any portion of the claim. The plaintiff had made a claim for Rs. 27,320.78, by filing a counter‑claim it this Court but after it was transferred to the Special Court it refused to entertain it for want of pecuniary jurisdiction. The plaintiff, therefore, restricted his claim for set off and did not press his claim for the counter claim before tie Special Court. In these circumstances the plaintiff filed the present suit. The plaintiff did neither omit to sue for the claim nor he had intentionally relinquished it. It could not be pressed as the Special Court ruled that it has no jurisdiction to entertain it. The bar under Order II rule 2 does not apply unless the Court in which the former suit was pending had the jurisdiction to try the claim omitted by the plaintiff. In Jagat Singh v. Sangat Singh (AIR 1940PC70), it was observed that the bar does not apply unless the Court which tried the former suit had jurisdiction to try the claim omitted by the plaintiff. In Narasinga Rau v. Venkatenerayana (ILR16Mad.481), the plaintiff on the basis of bond of hypothecation filed a suit for recovery of principal amount, interest and sale of immovable property. The suit was filed in the Court in whose jurisdiction the bond was executed and obligor resided. As the property was not situated in the jurisdiction of the Court, the Court dismissed that suit so far as it related to the property and claim of the principal but awarded the plaintiff the interest claimed against the defendant personally. Subsequently the plaintiff brought a suit within the jurisdiction of the Court in which the property was situate, for recovery of principal money due on bond by sale of the hypothecated property. The Court held that the suit was not barred as the former Court did not have the jurisdiction to entertain the suit in respect of claim which is subject‑matter of the subsequent suit. Further reference can be made to Mt. Jaggo Bai v. Ustana Lal (A I R 1929 P C 166), where a certificate under the Pensions Act, 1871, was a necessary condition to the entertainment of the suit and such condition was wanting in the former suit, a subsequent suit was held not to be barred. It is thus well‑settled that unless the Court which tried the former suit had the jurisdiction to try the claim omitted by the plaintiff the bar under Order II, rule 2 will not apply. The application is, therefore, dismissed. M. Y. M. Application dismissed.