Order XXIII of CPC Liberty Cannot Cure Order 2 Rule 2 Bar

Source: Supreme Court

Why in News? 

A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran, in Bombay Garage Ahmedabad Limited & Ors. v. J P Iscon Private Ltd. & Anr. (2026), held that Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (CPC) cannot be used as a substitute for leave under Order II Rule 2(3). Where a plaintiff omits a relief available to him at the time of instituting a suit without the Court's leave, liberty granted at the stage of withdrawal does not revive the right to claim the omitted relief in a subsequent suit. 

What was the Background of Bombay Garage Ahmedabad Limited & Ors. v. J P Iscon Private Ltd. & Anr. (2026) Case? 

• The dispute arose from an alleged oral agreement for the sale of immovable property. 
• The plaintiff (Respondent No. 1) first instituted a suit seeking only a permanent injunction. The relief of specific performance, though available to the plaintiff at that time, was not claimed, and no leave of the Court was obtained under Order II Rule 2 to sue for it later. 
• The first suit was subsequently withdrawn, citing ongoing settlement talks, with liberty to institute a fresh suit. 
• The plaintiff then instituted a second suit seeking specific performance of the alleged oral agreement. 
• The Trial Court and the Gujarat High Court decided in favour of the plaintiff. 
• Aggrieved, the property purchasers (appellants) approached the Supreme Court. 

What were the Court's Observations? 

On the Relationship between Order II Rule 2 and Order XXIII Rule 1: 

• The Court held that a plaintiff cannot use the liberty obtained under Order XXIII Rule 1(3) as a substitute for leave under Order II Rule 2(3). 
• It observed that leave under Order II Rule 2 must be obtained at the time of institution of the suit, and liberty sought at the time of withdrawal does not cure the defect of not having obtained such leave. 

On the Applicability of the Order II Rule 2 Bar: 

• The Court held that the second suit clearly attracted the bar under Order II Rule 2. 
• It explained that the rule applies where a prior suit, in which the plaintiff did not seek all the reliefs available to him, is withdrawn to file a fresh suit. In such a case, the second suit is maintainable only if the plaintiff had obtained leave of the Court, at the time of filing the first suit, to agitate the reliefs not claimed. 

On the Scope of the Liberty Granted at Withdrawal: 

• The Court noted that no leave was taken when the first suit was instituted, although the relief of specific performance was available at that point of time. 
• It held that the liberty granted at withdrawal only enabled the plaintiff to file a fresh suit with the prayer for injunction, and not with the additional prayer for specific performance. 

On the Plaintiff's Failure to Seek Amendment: 

• The Court took note of the submission that the fresh suit was filed at a time when an amendment could have been sought in the first suit to add the relief of specific performance. 
• Since no such amendment was sought, the second suit fell squarely within the rigour of Order II Rule 2. 

Conclusion: 

• The Court set aside the findings of the Trial Court and the Gujarat High Court, allowed the appeal, and dismissed the second suit for specific performance.

What is Order II Rule 2 of the Code of Civil Procedure, 1908? 

About: 

• Order II Rule 2 of the CPC deals with the requirement that a suit must include the whole of the claim arising out of a cause of action. 
• It falls under Order II of the CPC (Frame of Suit). 
• It is founded on the principle that a defendant should not be vexed twice for the same cause of action, and it prevents splitting of claims and reliefs. 

The Provision: 

Order II Rule 2 states: 

Sub-rule (1): Suit to include the whole claim 

• "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." 

Sub-rule (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 sue in respect of the portion so omitted or relinquished." 

Sub-rule (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." 

What is Order XXIII Rule 1 of the Code of Civil Procedure, 1908? 

About: 

• Order XXIII Rule 1 of the CPC deals with the withdrawal of a suit or abandonment of part of a claim. 
• It falls under Order XXIII of the CPC (Withdrawal and Adjustment of Suits). 
• It distinguishes between an absolute withdrawal (which bars a fresh suit) and a withdrawal with the Court's permission (which allows a fresh suit on the same subject matter). 

The Provision: 

• Order XXIII Rule 1 states: 

Sub-rule (1): 

• "At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: 
• Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court." 

Sub-rule (2): 

• "An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person." 

Sub-rule (3): 

• "Where the Court is satisfied,— 
• (a) that a suit must fail by reason of some formal defect, or 
• (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, 
• it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim." 

Sub-rule (4): 

• "Where the plaintiff— 
• (a) abandons any suit or part of claim under sub-rule (1), or 
• (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), 
• he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." 

Sub-rule (5): 

• "Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."