089 - Final Draft

CIVIL PROCEDURE CODE

FINAL DRAFT “Cause of Action”

INTRODUCTION

The term Cause of Action refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a Cause of Action a Civil Suit cannot arise. The question now arises how important exactly is a Cause of Action? The term Cause of Action is mentioned in the Civil Procedure Code, 1908 in various places. The first such instance is in Order I Rule 8 where in the explanation it is written that the parties being represented in the suit need not have the same cause of action as the person they are being represented by. The fact that a Cause of Action is essential to a suit is represented in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause of action if it is to be instituted as a suit. Order VII Rule 1 reaffirms the same. Thus, it can be seen from the beginning that not only is a Cause of Action an important part of the Civil Suit but is in essence the reason that the civil suit exists in the first place. Any claim that is made in the suit flows from the cause of action, and as is stated by the above mentioned part of the code the, claims made must be with respect to the cause of action from whence they arise. To pursue a cause of action, a plaintiff pleads or alleges facts in a plaint, the pleading that initiates a lawsuit. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant) 1. Sometimes cases arise where the facts or circumstances create Multiple Causes of Action. There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit. To win a case the Plaintiff must prove the major legal points of the case lie in his favour; these are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a plaint does not allege facts sufficient to support every element of a claim, the

 Mulla, The Code of Civil Procedure, 17 th Edition, Lexis Nexis Butterworths, New Delhi 2007.

1

court, upon motion by the opposing party, may dismiss the plaint for failure to state a claim for which relief can be granted. The defendant to the Cause of Action must file a Written Statement to the plaint in which, he may admit or deny the claims made by the plaintiff and give his proof for the same and his written arguments to show how the law supports him. The Written Statement may also contain counterclaims in which the states its own causes of action. Finally, the answer may contain affirmative defences. Almost all defences must be raised at the first possible opportunity either in the Written Statement or by motion, else they are deemed waived by the Court. CAUSE OF ACTION AND THE CODE

The first Order containing the term cause of action is Order II Rule 2. The object of Order II, Rule 2 is to prevent multiplicity of suits. The Rule applies not only to relief claimed in plaint but also to claims in the form of set off. The test for raising objection under the rule is that whether the claim made in the subsequent suit could have been made in the earlier suit or not. The cause of action must be same for application of the rule. Where some work was undertaken under a contract by plaintiff and extra work was done in connection with the same contract, separate suit in respect of such extra work is not maintainable. Also, parties must be same for the application of this rule. However, except for the cases covered under the Explanation of the rule, where there is option to the plaintiff to choose one of the reliefs, if his claim fails for one relief he can bring another suit for other relief e.g., if a cause of action entitles the mortgagee to get possession in lieu of interest and in alternative to sue for mortgage money, the dismissal of suit for possession does not bar a suit for recovery of money by way of sale of mortgaged property. Expression 'cause of action' for the purposes of this rule means essential facts constituting the right and its infringement which entitles a person to sue the wrong doer or defaulter or any one liable for it. Same cause of action is sine qua non for attracting the mischief contemplated under Order II, Rule 2. For showing it that the subsequent suit is hit by Rule 2, the defendant must  produce certified copy of the plaint of the earlier suit. If the claim in subsequent suit is founded on different cause of action, Rule 2 is no bar, e.g., where defendant's possession over two rooms and plot is under two different licences or their revocation is separate, the earlier suit for  possession of two rooms and subsequent suit for the plot is maintainable.

Where a plaintiff is not aware of an additional claim at the time of institution of the first suit, Rule 2 is not attracted. In other words the rule bars the subsequent suit only if the plaintiff had knowledge of the additional claim omitted in the first suit. Similarly, where omission to sue for additional relief is due to fraud, the second suit cannot be said to have been barred. But where the  plaintiff had the opportunity to add the relief and there was no fraud etc., the omission to include all joint properties in one partition suit, bars the fresh suit of partition for remaining properties even if instituted by plaintiff's son. The defendant who raises objection under Rule 2 must file the copies of pleadings to show the omission. Where in the earlier suit eviction of tenant is sought the second suit for arrears of rent is not  barred. Where the plaintiff seeks declaration of title under Order XXI, Rule 63 and thereafter seeks possession in another suit, the suits are not defective. Exceptions to the Rule. — (i) Order XXXIV, Rule 14 — Mortgagee, after filing suit for recovery

of mortgage debt can institute another suit for sale of the mortgaged immovable property (ii) Order XXXIV, Rule 6 — Mortgagee even after obtaining decree of sale, may apply for decree of  balance sum which could not be recovered from insufficient sale proceeds (iii) Section 15A of the Deccan Agriculturist Relief Act permits mortgagee to split his reliefs (iv) when the second relief was alternative to the one claimed in first suit (v) when the cause of action was not the same (vi) when the earlier suit is withdrawn with permission to file fresh suit (vii) when the  plaintiff had no knowledge of the additional claim at the time of institution of first suit. Joinder of Causes of Action: A plaintiff may unite in the same suit several causes of action

against the same defendant, or the same defendants jointly; and any plaintiffs having cause of action in which they are jointly interested against the same defendant, or the same defendants  jointly may unite such causes of action in the same suit. Where the cause s of action are so united the jurisdiction of the court as regard the suit shall depend upon the amount of the value of the aggregate subject matters at the date of the institution of the suit. But this rule cannot permit the  joinder of the claim exclusively triable by the Small Causes Courts. When such claims are joined with the claims triable by the ordinary Civil Court the joinder is bad. Rule 6 of Order II, however, provides that where it appears to the court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials.

Rule 4 of Order II lays down that no cause of action shall, unless with the leave of the court, be  joined with a suit for the recovery of immovable property, except: 1. Claims for mesne profit or arrears of rent in respect of the property claimed or any part thereof; 2. Claims for damages for breach of any contract under which the property or any part thereof is held; 3. Claims in which the relief sought is based on th e same cause of action. 4. The proviso to this rule states that nothing in this rule shall be deemed to prevent any  party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. Order II, Rule 4 deals with the joinder of claims. The rule provides that in a suit for the recovery of immovable property, no claims other than those specified in the three exceptions shall be joined without leave of the Court. 5. The word "claim" in the rule refers to a right which would be enforceable if decreed by Court. Where first suit is instituted for damages stipulated in a contract of lease against lessee, the second suit for possession and damages for period after the one covered under first suit is maintainable. Rule 5 of Order II prohibits the joinder of the claim by or against an executor administrator or heir, as such with the claims by or against him  personally unless the claim by or against him personally are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents. CASE LAW

Section 20 of the Civil Procedure Code, 1908 is extremely important while discussing case law related to cause of action and is hence reproduced below: 20. Other suits to be instituted where defendants reside or cause of action arises. - Subject to

the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose  jurisdiction-

(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) Any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain,  provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises. The problematic clause is clause 3 of the section which states that “cause of action, wholly or in  part, arises”. The clause is thus discussed below: Cause of Action wholly or in part arises: Cause of Action means a bundle of material facts which it is necessary for the plaintiff to prove in order to get relief in the suit 2. But it does not comprise every piece of evidence which is necessary to produce in order to prove such material facts.  Notices under Section 80 of the Civil Procedure Code and under Section 87 do not form part of the cause of action. This is because the notices although essential to the preliminary steps of filing a suit follow the cause of action. Cause of Action wholly or in part arises: Cause of Action means a bundle of material facts which it is necessary for the plaintiff to prove in order to get relief in the suit. But it does not comprise every piece of evidence which is necessary to produce in order to prove such material facts.  Notices under Section 80 of the Civil Procedure Code and under Section 87 do not form part of the cause of action. This is because the notices although essential to the preliminary steps of filing a suit follow the cause of action. In the case of Subodh Kumar Gupta v. Srikant Gupta3 a partnership firm had its registered office in Bombay and and factory and Mandsaur. Two partners were living in Mandsaur and one shifted to Chandigarh. An agreement was drawn up in Bhilai for dissolution of partnership and distribution of partnership assets. The plaintiff filed a suit in Chandigarh Court for dissolution of

2

 K.L.V. Prasad Rao v. Venkateshwara Goud (2008) 68 AIC 677 (AP).  Subodh Kumar Gupta v. Srikant Gupta (1993) 4 SCC 1.

3

firm and rendition of accounts alleging that the defendants at Mandsaur had misappropriated the  partnership fund, and the agreement created at Bhilai was void and had to be ignored. The Supreme Court held that Chandigarh Court had no jurisdiction to try the suit as no part of the cause of action arose at Chandigarh and the mere allegation of the plaintiff that he was having a  branch office at Chandigarh would not confer jurisdiction on the Chandigarh Court. The agreement was also required to be set aside and the Chandigarh Court could not entertain such a suit when it was created in Bhilai. Cause of Action in a suit for contract. When the negotiations to a Contract were conducted by Telex between two places B and D and acceptance to the contract was communicated at D, the court at D was held to have jurisdiction to entertain the case concerning the contract. The forum for the breach of contract arises at the place the breach occurred or at the place the performance was to be made. It could not be filed at the place the offer was accepted. But it has been held that in relation to a contract cause of action arises where contract was made, or the place where the  performance was to be made or performance thereof was completed or the place where in  pursuance of the performance any money to which the suit relates was expressly or impliedly  payable.4  In case of Contract by correspondence, contract takes place where the acceptance of the contract was made. It has, therefore, been held that in case of repudiation of contract or for non payment of price the place where the acceptance letter was received is not relevant for determining where the cause of action arose. The cause of action arose at the place of posting the letter of acceptance. Misjoinder of Causes of Action: Where several causes of action are joined together in the suit which cannot be joined there being no common question of law and fact the suit is bad for misjoinder of causes of action or multifariousness. All objections on the grounds of misjoinder of causes of action shall be taken at the earliest possible opportunity and in all cases where issues are framed at or before the framing of the issues unless ground for such objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived, it has, therefore been held that misjoinder of causes of action being not an inherent lack of  jurisdiction, if the objection is not raised at the earliest possible opportunity it stands waived5.

4

 Bhagwandas Goverdhandas Kedia v Girdharilal Parshottamdas and Co. AIR 1966 SC 543.  Prem Lal Nahata v. Chandi Prasad Sikaria (2007) 2 SCC 551.

5

The plea cannot be raised after remand, when the same has not been taken at the earliest opportunity. So any order of the trial court after remand to remove the lacuna is bad. Rejection of Plaint takes place with the non disclosure of cause of action.  Non disclosure of cause of action: The court will be justified in rejecting the plaint for non disclosure of cause of action only when looking into the allegations of the plaint and assuming them to be correct comes to the conclusion that the allegations do not disclose any cause of action. But where the court on the conclusion of the trial after considering all evidences and materials comes to find that there is no cause of action for the suit, the suit is to be dismissed and not the plaint rejected.6 CONCLUSION

Cause of Action is cause of action for which the suit was brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit7. If that cause of action enables a person to ask for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. There are three important factors which cause of action decides in each and every civil suit. They are : 1. Jurisdiction 2. Limitation 3. Rejection of Plaint Cause of Action means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeedCause of Action consists of a bundle of facts which give cause to enforce the legal injury for redress in a court of law. The Cause of Action means every fact, which if traversed, it would be necessary for the plaintiff in order to prove in order to support his right to a judgment of the court.Cause of Action must be antecedent to the institution of the suit. In Contracts regarding the purchase of goods, cause of action arises at any of the following places: 6

 Church of Christ Charitable Trust v Ponniamman Educational Trust (2012) 8 SCC 706.  Sidramappa v. Rajashetty (1970) 1 SCC 186.

7

1. Place of contract 2. Place where contract was to be performed or performance completed thereof 3. Place where money was expressly or impliedly payable. It can thus be seen that Cause of Action is fundamental to a Civil Suit and no civil suit can exist without a cause of action taking place before it.

BIBLIOGRAPHY 

Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company



Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar Edition, Wadhwa and Company



Mulla, The Code of Civil Procedure, Lexis Nexis Butterworths, New Delhi



Mallick, M.R. Mitra’s Civil Procedure, 4th Edition, Eastern Law House.