What do you understand by splitting of claim? Can a fresh suit for sale on the basis of a mortgage be filed, if a suit for personal decree was already filed and was decreed?

Question: What do you understand by splitting of claim? Can a fresh suit for sale on the basis of a mortgage be filed, if a suit for personal decree was already filed and was decreed?

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Answer

Order 2, Rule 2 of the Code of Civil Procedure (CPC) relates to the splitting of claims. It states:

"Save as otherwise provided, a plaintiff shall include the whole of his claim in one suit; but he may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court."

This rule essentially requires a plaintiff (the person initiating the lawsuit) to include all the claims arising out of a single cause of action in one suit. In other words, if a plaintiff has multiple claims against a defendant arising from the same set of facts or legal basis, they are generally required to present all those claims in a single lawsuit.

The rationale behind this rule is to ensure that all relevant claims between the parties are determined in one proceeding, promoting judicial efficiency, avoiding multiplicity of suits, and preventing the harassment of defendants by repeatedly litigating the same issues. It also enables the court to provide a comprehensive and final resolution to the dispute.

However, there are certain exceptions and situations where the splitting of claims is allowed:

1. Relinquishing a Portion of the Claim: The plaintiff may choose to relinquish or exclude a part of their claim to bring the remaining part within the jurisdiction of a specific court. This provision allows the plaintiff to modify their claim so that it falls within the jurisdictional limits of a particular court.

2. Other Specific Provisions: The rule itself acknowledges that there may be other provisions in the CPC or other laws that permit or require the splitting of claims. These provisions might exist to address particular circumstances or to provide for specific remedies or relief.

It's important to note that while Order 2, Rule 2 generally mandates the inclusion of all claims arising from a single cause of action, it does not prevent a plaintiff from filing separate suits for distinct causes of action. If the claims arise from separate incidents or different legal bases, the plaintiff can file separate suits for each cause of action without violating the rule against splitting claims.

In case the 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.

This Rule is based on the principle that the defendant should not be vexed twice for the same cause. This rule is directed against the twin evils i.e., splitting up of claims and splitting of remedies. A close reading of this Rule would make it abundantly plain that it applies only to a claim based on one cause of action. The Rule, therefore, does not preclude a second suit if it is based on a distinct and separate cause of action. It is thus clear that in order to attract the said Rule, two conditions must be satisfied, firstly, that the previous suit, as well as the present suit, arise out of the same cause of action, and secondly, that the suit must be between the same parties.

If a plaintiff violates Order 2, Rule 2 by splitting a claim improperly, the court has the power to dismiss the subsequent suit(s) on the ground that they are barred by the rule. This dismissal would typically be without prejudice, allowing the plaintiff to file a fresh suit including all the claims if they choose to do so.

In the present case at hand, if a suit for a personal decree has already been filed and decreed, it generally means that the court has already granted a judgment in favour of the plaintiff for the specific relief sought, such as the payment of a certain sum of money. In such a scenario, if the suit was not based on the mortgage itself but rather on a personal claim, the plaintiff may still be able to file a fresh suit for sale on the basis of the mortgage.

The reason for this is that a personal decree and a mortgage claim are distinct causes of action with different legal bases. While the personal decree may have been obtained, it does not necessarily extinguish the mortgage rights of the plaintiff. The plaintiff may still have the right to enforce the mortgage and seek the sale of the mortgaged property to recover the outstanding dues.