NEW INDIA ASSURANCE CO. v. KISHORI LAL SUD — 1995 DIGILAW 2 (HP)

JUDGMENT A. L. Vaidya, J.—Kishori Lal Sood, who has been wrongly described as defendant-respondent in the present petition, filed a suit for recovery of Rs. 27,720, alongwith future interest, against M/s. New India Assurance Co. Ltd., (wrongly described as-the plaintiff in the present petition), which suit is pending trial before the Sub-Judge 1st Class, Shimla The suit was filed on the allegations that the plaintiff was the owner of truck No. HPS 1957, which was got insured by the plaintiff with the defendant Insurance Company and, unfortunately, on 29th July, 1989, this truck met with an accident near Medical College, Lakkar Bazar, Shimla, and after the accident, claim was filed by the plaintiff with the Assurance Company of the amount of Rs. 18,000 bifurcation of which was as follows: For retrieving the vehicle from the Khud : Rs. 18,000 For towing the vehicle to Ambala for repairs: Rs. 3,000 The plaintiff further pleaded that he produced before the Surveyor proof of payment of Rs. 15,000 to one retrieving contractor, Kalu Ram of aiolan and also produced before the Surveyor a receipt of Rs. 3,000 on account of towing charges from the site of the accident to Ambala City to which place the vehicle was carried for repairs. According to the plaintiff, the Surveyor of the Company, Engineer Satinder, after verification of the amount, opined that the amount of Rs. 18,000 was due to be paid by the Insurance Company to the plaintiff. As the plaintiff s representations in this behalf to the company to make payment of Rs 18,000 gone unheard, hence the suit was filed for the recovery of Rs. 18,000 alongwith Rs 9,720 as interest, the total amount being Rs. 27,720. It was also pleaded that the Divisional Manager, Mr. Jain, even agreed to make the payment of Rs. 9,000 and wanted the plaintiff to give a receipt thereof but later on the said Divisional Manager came down to an amount of Rs. 7,000, which was not acceptable to the plaintiff. 2. During the pendency of the suit, the defendant submitted an application under Order 2, Rule 2, C.P.C. with a prayer to dismiss the suit. The allegations made in the application were that the plaintiff had filed the present suit for recovery of Rs. 27,720 which was pending in the Court It was further averred that the plaintiff had filed another suit for recovery of Rs. The allegations made in the application were that the plaintiff had filed the present suit for recovery of Rs. 27,720 which was pending in the Court It was further averred that the plaintiff had filed another suit for recovery of Rs. 1,04,995.79, which was also pending in that very Court. According to the defendants, both these claims arise out of the same accident, same policy of Insurance and a common cause of action and, therefore, on that ground the present suit was barred under Order 2, Rule 2, C. P. C. It was further pleaded that at the time of the filing of the written statement the aforesaid point escaped notice bonafide but this fact was realised only when the written statement was being prepared in the suit for recovery of Rs. 1,04,995.79 paisa. According to the defendant, the plaintiff has omitted to sue in respect of, or has intentionally relinquished the claim of Rs. 27,720, in the earlier suit and, therefore, on the basis of the same it was the present suit which was hit under Order 2, Rule 2 C P. C. and, as such, it was liable to be dismissed as not maintainable. The application was supported by an affidavit. 3. In reply to the application it was admitted by the plaintiff that he had filed a suit for recovery of Rs. 1,04,995.79, which was also pending in the Court. However, it was denied that the cause of action was the same and that the suit was hit by Order 2, Rule 2, C. P. C 4. The trial Court, after hearing the parties, came to the conclusion that the earlier suit filed by the plaintiff was for recovery of Rs. 1,04,995.79 against the defendant and the said amount was in respect of cost of truck which met with an accident but the present suit was for recovery of Rs. 27,720, on account of retrieving and toeing charges of the truck, which had met with an accident. The trial Court came to the conclusion that the subject-matter of the two suits were quite distinct and, therefore, it cannot be said that the present suit was not maintainable and was liable to be dismissed. The application under Order 2, Rule 2, C. P. C. was, accordingly, dismissed. 5. The aforesaid order passed by the trial Court has been assailed in the present revision petition on various grounds. 6. The application under Order 2, Rule 2, C. P. C. was, accordingly, dismissed. 5. The aforesaid order passed by the trial Court has been assailed in the present revision petition on various grounds. 6. I have heard the learned Counsel for the parties and have minutely scrutinized the record in order to appreciate the prayer made in the application preferred under Order 2, Rule 2, C. P. C. 7. Before the facts, involved in the present case are appreciated, it would be convenient to reproduce the provision of Order 2, Rule 2 C. P. C. which runs as under : "(2) 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." The aforesaid provision of law deals with the frame of suit and such a frame requires the suit to include the entire claim. This provision is aimed against multiplicity of suits in respect of the same cause of action. The object of the present Rule is to prevent further litigation and for that purpose this Rule provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action and he is not entitled to split his cause of action into parts and bring separate suits in respect of each part and in case he omits to sue in respect of, or intentionally relinquishes any portion of the claim arising from the same cause of action, he will be precluded from suing in respect of the portion so omitted or relinquished, even though he states in his plaint that he intends to bring a second suit for the portion omitted. This rule is based on the principle that a defendant should not be vexed twice for one and the same cause of action. Therefore, two conditions lave to be satisfied in order that the rule may apply, the first being identity of the cause of action and the second identity of the parties in both the suits. 8. The present suit, where the application under Order 2, Rule 2, C. P. C. was filed, has been numbered as Civil Suit No. 35/1 of 1993. 8. The present suit, where the application under Order 2, Rule 2, C. P. C. was filed, has been numbered as Civil Suit No. 35/1 of 1993. This suit was instituted on 27-7-1992 The earlier suit is numbered as Civil Suit No 175/1 of 1992 and it was instituted on 6-6-1992 The original ale of the earlier suit has been called for and otherwise also the plaintiff has no dispute regarding the factual side of the filing of the earlier suit. 9. The earlier suit was filed for recovery of Rs. 1,04,995.79, along with interest. It was pleaded in the earlier suit that the plaintiff was owner of Truck No. HPS 1957 and it was got insured with the defendant- Insurance Company and this truck HPS 1957 met with an accident on 29th July, 1989, near Medical College Lakkar Bazar, Shimla. It was further pleaded that after the accident insurance claim was filed by the plaintiff with the defendant-Insurance Company, bifurcation of which was t; follows : (a) Claim on account of replacement of Darts and body : Rs. 1,43,333.79 (b) Claim on account of repair bill. : Rs. 12,269.00 Total Rs. 1,55,602.96 It was further pleaded that after the receipt of the claim from the plaintiff, the defendant referred the matter to Surveyor Engineer Satinder Shekhon who unjustifiably reduced the claim to Rs. 1,24.000. According to the plaintiff, the defendant-company gave to the plaintiff a claim of Rs. 86,069, bifurcation of which was as under : Claim Rs. 90,069.00 Less value of salvage : Rs. 4,000.00 Balance : Rs 86,069.00 The plaintiff also pleaded that amount of Rs. 86,069 was paid by the defendant to the plaintiff on 18th March, 1991 vide cheque No. 0172509. It was also pleaded that defendant-Company got the receipt from the plaintiff by hurling threats of rejection of the entire claim and by exercising undue influence and inducement. The plaintiff further added that the claim allowed to the plaintiff by the defendant is far short of the claim made by him and the claim allowed to the plaintiff was also far short of the amount approved by the Surveyor. The plaintiff pleaded that he was entitled to recovery Rs. 69,533.96, being the difference between amount of claim of Rs 1,55,602 96 and the amount actually disbursed amounting to Rs. 86,069.00. The plaintiff was also entitled to interest which works out to Rs. The plaintiff pleaded that he was entitled to recovery Rs. 69,533.96, being the difference between amount of claim of Rs 1,55,602 96 and the amount actually disbursed amounting to Rs. 86,069.00. The plaintiff was also entitled to interest which works out to Rs. 35,461 N3 and thus the total claim of the plaintiff was reduced to Rs 1,04,995.79 paisa, alongwith future interest at the rate of 18 per cent per annum. On the basis of the aforesaid pleas the suit for recovery of Rs 1,04,995.79 paisa was filed. 10. In order to apply the provisions of Order 2, Rule 2, C. P. C. two conditions have to be taken note of, as referred to above. So far as the first condition is concerned, it stands admitted that the parties are the same. 11. Regarding the Second condition, the identity of the cause of action of the two suits should be the same. What is a cause of action? The cause of action means the facts pleaded on the basis of which the relief is claimed. In the earlier suit the cause of action pleaded was the accident in which the truck was involved and which truck was insured with the defendant-Company Further cause of action pleaded has been the claim put in by the plaintiff pertaining to that damage caused in the accident. Further facts pleaded were that the claim was referred to Engineer S. S. Sekhon, who wrongly reduced the claim to Rs. 1,24,000. This earlier suit has been find for the recovery of the amount due to the plaintiff on account of the accident caused to his truck and this amount pertained to replacement of parts and body of the truck and the claim on account of repair bill. 12. The subsequent suit, which is under reference, again pertained to the same accident. The cause of action pleaded has been the same but the amount asked for is for retrieving the vehicle from the Khud and for towing the same to Ambala for repairs. This claim, admittedly, arise out of the same accident and out of the same insurance policy. 13. It may be referred here that in both the suits the plaintiff has pleaded with respect to survey report given by Engineer S, S. Sekhon. A copy of this report has been filed with both the plaints This survey report is dated 16-11-1989. This claim, admittedly, arise out of the same accident and out of the same insurance policy. 13. It may be referred here that in both the suits the plaintiff has pleaded with respect to survey report given by Engineer S, S. Sekhon. A copy of this report has been filed with both the plaints This survey report is dated 16-11-1989. In this very report the Surveyor had referred the claim on the basis of which earlier suit was filed and also the claim which has been made the subject-matter of the present suit. The claim, being asked for in the present suit, that is the later one is pertaining to retrieving/ towing charges, which has been described by the Surveyor as under : Retrieving/Towing Charges : According to spot survey report, the truck rolled about 200 feet down into a nullah. According to Insured, it took him complete fifteen days to retrieve the vehicle with the help of technical/non-technical labour. He also produced a bill No. 069, dated 1-9-1989 of Kalu Ram contractor of Solan for Rs. 15,000. Another bill for Rs 3,000 of M/s. Ambala Recovery Service, Ambala City, was also produced for towing the vehicle to Ambala In my opinion this amount is genuine and reasonable. However, it is the discretion of underwriters to finally recommend the amount for retrieving/towing". The learned Counsel for the plaintiff pleaded that the claims of both the suits were separately made and the surveyor gave separate reports on the basis of these distinct claims. But this submission cannot be accepted as the survey report was common pertaining to all the claims, as referred to above. 14. A query was put by the court to the learned Counsel for the plaintiff whether under law the plaintiff was legally entitled to split his claims on account of replacement of parts and body of the truck in one suit and claim on account of repair bill of the truck in another suit which have been made the subject matter of the earlier suit collectively ? The natural answer was in the negative that the claim could not be split up under law. If it is so, how the claim of Rs 27,720 for towing and retrieving charges which is based upon the same cause of action, could be split up by filing a second suit. The natural answer was in the negative that the claim could not be split up under law. If it is so, how the claim of Rs 27,720 for towing and retrieving charges which is based upon the same cause of action, could be split up by filing a second suit. In the contest of the circumstances, present in this case the applicability of Order 2, Rule 2, C. P. C. is called for. 15. It may be referred here that sub-rule (3) of Order 2, C. P. C. very specifically provided that 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. That means, the subsequent suit could be instituted with the leave of the Court and that has not been sought for uptil today. 16. Thus, on the basis of the aforesaid discussion as the causes of action of the two suits remain the same and both the suits have arisen out of the same contract, therefore, the subsequent suit is definitely a bar created by Order 2, Rule 2, C P. C. 17. In view of the foregoing reasons, the lower Court acted illegally in exercising the jurisdiction vested in it correctly and properly, appreciating the proposition of law involved in the matter and, as such, the order passed by it requires interference. The present revision petition accordingly, is accepted and the subsequent suit, as referred to above, could not have been filed by the plaintiff on account of bar under Order 2, Rule 2, C. P. C. The subsequent suit, as such, on this ground stands dismissed. However, the parties are left to bear their own costs. Revision petition allowed.