I am a Govt contractor and lay water supply pipe lines for Govt. schemes in the state of HP. In 2007, I placed a big order of pipes to a big reputed firm in Delhi in 2007. The pipes were supplied to me in batches with considerable delay. However, before the delivery of final batch, company sent me invoice with increased price as opposed to the initial contract. At that time, I had no choice but to pay the amount and complete the govt project in time. Then later on I filed a petition against the company for their unethical conduct that caused me financial loss. But I withdrew the petition as my partnership firm was not registered. In the due course of time I got my firm registered and again filed the case. The defendant has submitted an affidavit in the court challenging the legality of re-petition on the the basis of Order rule 2 of CPC. Will the re-petition in this case not legal? What is the remedy if is is rejected?
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when did you file case again ?
2)goods were supplied in 2007 . your suit should have been filed by 2010 .
3) Order 2 Rule 2 mandates that a plaintiff must include their entire claim related to a specific cause of action in one lawsuit. If the plaintiff intentionally or unintentionally omits a part of the claim, they cannot file a separate suit for it without the court's permission.
when you withdrew the first case, did you take leave of the court to file the case in future ?
and whether the second case was filed within the limitation period?
depending on your answer to the above two questions, i can better reply to your query
You need to contest the same in court on point of law
Have you withdrawn the earlier petition with the liberty to file fresh ? If not than you have tough case.
You will need strong supporting judgments and case laws.
If you had withdrawn the earlier suit without seeking court's permission to file a fresh suit on the same cause of action at a later date and if you were permitted in the withdrawal petition to file a fresh suit, then this suit will be maintainable.
If not then this suit may not be entertained by court neither the objection filed by the defendant can be rejected.
Order 2, Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
Order 2 rule 3 further states 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.
Dear Client,
It is necessary to file the earlier suit and prove its legality in order to sustain a plea under Order 2 Rule (2) CPC. Only in such cases will the bar to the maintainability of the subsequent suit under Order 2 Rule (2) CPC be attracted. The first suit must have been based on the same cause of action as the second suit. An appeal against the order rejecting the plaint is the appropriate course of action when a plaint is rejected for nonpayment of the court fee because a revision petition is not admissible in these circumstances. An appeal is filed against an order that rejects a plaint because it is a decree.
- If you have withdraw the first petition with the opportunity to file the same , then this section will not applied
- Further ,as per section 69(2) of the Partnership Act, an unregistered partnership firm cannot file a suit against a third party for enforcing its rights arising from a contract or other legal rights,
- Since, the firm is now registered then a new cause of action arose to file the case within the limitation period.
