Chamber Notes
Omitted or Relinquished: What Order II Rule 2 Settles Without Deciding Anything
27 September 2026 · 16 min read
The prayer clause is drafted as a list of what the plaintiff wants from this suit. Order II Rule 2 reads it as a list of what he will ever be able to ask for. What answers to the same cause of action and is left out of the plaint becomes unavailable in a later suit — without a hearing, without an issue, and without anything in the decree that records the loss.
That much is familiar. What is less often set out is that Rule 2 contains two separate bars, that only one of them can be avoided, and that the Code nowhere says which of the two a particular omission falls under.
The rule
Order II Rule 1 states the object: "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them."
Rule 2 supplies the sanction. Sub-rule (1) requires that "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action", subject to a liberty to relinquish part of it in order to bring the suit within the jurisdiction of a Court.
Sub-rule (2), side-headed "Relinquishment of part of claim", provides: "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), side-headed "Omission to sue for one of several reliefs", provides: "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."
The Explanation adds that "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", and the illustration applies the rule to three years of unpaid rent sued for in respect of one year only.
Two bars, and only one door
Read side by side, the two operative sub-rules are not variants of a single proposition.
Sub-rule (2) bars a later suit for a portion of the claim that was omitted or relinquished, and it offers nothing in return. There is no reference to the leave of the Court, no saving and no condition. The bar attaches on the omission itself, and it attaches equally whether the omission was deliberate — "intentionally relinquishes" — or merely an omission — "omits to sue in respect of". Sub-rule (1) permits a relinquishment for one purpose only, to bring the suit within the jurisdiction of a Court, and that is a permission to relinquish, not a permission to sue for the relinquished part afterwards. Sub-rule (2) closes on it.
Sub-rule (3) bars a later suit for a relief omitted, but only where the omission was without leave. "Except with the leave of the Court" sits inside the operative clause rather than in a proviso, and it is the only opening in the rule. A plaintiff who obtains that leave sues for one relief now and keeps the others.
Note also what sub-rule (3) does not do. Its first half is permissive: a person entitled to more than one relief "may sue for all or any of such reliefs". The rule does not compel a plaintiff to join all his reliefs in one suit. It leaves him free to sue for one, and attaches a consequence to the others. The Code does not prohibit splitting; it prices it.
So the two omissions are treated differently. A part of the claim, once left out, is not recoverable in a later suit. A relief, left out with the Court's permission, is preserved. The difference is not one of degree of fault, because sub-rule (2) bars the innocent omission as firmly as the intentional relinquishment. It is a difference in what is being left out.
Which makes the classification decisive. Before an advocate can know whether leave is available to him at all, he has to know whether the thing he proposes to leave out is a portion of the claim or one of several reliefs. If it is the first, there is no application to be made. If it is the second, there is an application that has to be made now.
The Code does not define either expression.
The boundary the plaintiff draws himself
Both sub-rules operate within one cause of action. Sub-rule (1) speaks of the whole of the claim "in respect of the cause of action"; sub-rule (3) of more than one relief "in respect of the same cause of action". Whatever falls outside that cause of action is untouched by the rule.
Section 2 of the Code defines more than a dozen expressions — decree, judgment, order, district, foreign judgment, legal representative, mesne profits, movable property, pleader, prescribed, public officer, rules, signed. "Cause of action" is not among them, and the Code contains no general definition of it. The nearest thing to one is the Explanation to Rule 2 itself, and that Explanation does not define the expression: it deems certain things to constitute one cause of action, expressly "for the purposes of this rule".
What the Code does instead is require the plaintiff to state it. Order VII Rule 1 lists the particulars a plaint shall contain, and clause (e) is "the facts constituting the cause of action and when it arose". Rule 8 of the same Order adds that where relief is sought in respect of several distinct claims or causes of action founded upon separate and distinct grounds, "they shall be stated as far as may be separately and distinctly".
The boundary of the bar is therefore drawn in the plaintiff's own pleading. He states the facts constituting his cause of action, and that statement fixes the perimeter within which his omissions will count. A plaint that narrates the whole history of a transaction in order to look complete enlarges the perimeter. A plaint that keeps distinct causes of action separate, as Rule 8 requires, keeps them apart. Neither is a question of drafting elegance. Order VII Rule 1(e) and Order II Rule 2 operate on the same words, and the first of them is settled long before anybody has occasion to read the second.
What the plaint must disclose, and what it need not
There is a second asymmetry, and it runs opposite to the first.
Order VII Rule 1(h) requires the plaint to state, among its particulars, "where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed, or relinquished". A relinquishment of part of the claim therefore appears on the face of the plaint, in figures.
Nothing in Order VII requires the plaint to state which reliefs the plaintiff is not asking for. Nothing requires it to state that leave under Order II Rule 2(3) has been sought, or granted, or on what terms. Order II itself prescribes no form for that application, no stage by which it must be made, and no material to be placed before the Court in support of it.
So the omission for which the Code provides no escape is the one it insists be recorded, and the omission for which it provides an escape is the one it leaves off the record altogether. A plaint discloses the claim given up and is silent about the relief reserved. Years later, when a second suit is met with Rule 2, the record of the first suit will show the relinquished amount as a figure in the plaint, and will show the reservation of the omitted relief only if somebody asked for an order and the order was drawn up.
That is a practical reason for treating leave under sub-rule (3) as something to be obtained on a separate application and a speaking order rather than by a sentence in the plaint. The rule does not require it. The rule also supplies nothing else to prove it by.
Asked and not granted, or never asked
Order VII Rule 7 pulls in a different direction from all of this. It provides that "Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for." The same rule applies to relief claimed by a defendant in his written statement.
A Court may therefore grant a relief that was never specifically asked for. Order II Rule 2(3) bars a second suit for a relief that was never asked for. The two are not in conflict, because they address different things — one the powers of the Court in the suit before it, the other the plaintiff's right to bring another suit — but the combination is worth stating plainly. A relief left out of the plaint may still be given in the suit in which it was left out. It may not be sued for in a later one.
Section 11 closes the remaining position. Explanation V provides: "Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused."
So a relief claimed and not granted is deemed refused, and a relief not claimed at all is barred by Order II Rule 2(3) unless leave was taken. The drafting choice that feels like a choice — whether to ask for a relief the case may not support — does not produce two different results at the far end. Asking and failing produces a deemed refusal. Not asking produces a bar. The only course that produces neither is asking for leave to omit.
Section 12 then extends the reach of the bar: "Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies." The preclusion is not local to the Court that tried the first suit.
The rule the amending Acts left alone
The Code of Civil Procedure (Amendment) Act, 1976 reworked the First Schedule extensively, and the 1999 and 2002 Amendment Acts did it again. Order II was very largely left out of all three.
On the face of the India Code compilation, the only amendment footnote anywhere in Order II is against Rule 6, substituted by section 53 of Act 104 of 1976. Rules 1, 2, 3, 4, 5 and 7 carry none. Rule 2 stands, so far as the compilation discloses, in the words in which it was enacted in 1908 — its side-headings, its Explanation and its illustration about the rent for 1905, 1906 and 1907 included.
That is worth noticing, because the rule has been described for a century as a hard one, and because the amending Acts had occasion to soften it and did not. Section 53 of the 1976 Act substituted Order II Rule 6 to give the Court a discretion to order separate trials where a joinder of causes of action may embarrass or delay the trial. Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 conditioned a quite different power, by adding the due-diligence proviso to Order VI Rule 17. Both Acts were adjusting what may be done about the shape of a case after it has been filed — in the first, by widening the Court's power to separate causes of action that had been joined; in the second, by narrowing a party's power to alter his own pleading. Order II Rule 2 governs the shape of the case at the outset, and neither Act went near it.
What Uttar Pradesh did to it
The one alteration that reaches a court in this State did not come from Parliament.
Uttar Pradesh Act 57 of 1976, by section 4, amended Order II Rule 2 in two respects. It renumbered the existing Explanation as Explanation I and inserted after it a new Explanation II: "For the purpose of this rule a claim for ejectment of the defendant from immovable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property, shall be deemed to be claims in respect of distinct causes of action."
It then substituted the illustration, which now reads: "A lets immovable property to B at a yearly rent. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid, and the tenancy is determined before A sues B in 1908, only for the rent due for 1906. A may afterwards sue B for ejectment but not for the rent due for 1905 or 1907."
The two halves of that sentence record precisely what the amendment does and does not do. Ejectment is carved out, because Explanation II deems it to rest on a distinct cause of action, so leaving it out of a suit for rent does not bar it. The rent for the other two years is not carved out, because it remains a portion of the same claim, and sub-rule (2) has no door in it.
For drafting in this State the consequence is narrow and definite. A landlord who sues for one year's rent has not lost his ejectment. He has lost the rent he did not sue for. And because Explanation II is a State amendment — the compilation prints no other State amendment to Order II — the perimeter of the bar is not uniform across the country. The same facts, pleaded in the same words, divide differently depending on where the plaint is filed.
The other place the Code asks for leave at the time
Order XXIII Rule 1 is the Code's other treatment of a claim given up, and the comparison shows what Order II Rule 2(3) leaves unsaid.
Sub-rule (1) permits a plaintiff at any time after institution to abandon his suit or part of his claim. Sub-rule (3) allows the Court, where it is satisfied that a suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing a fresh suit, to "grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit". Sub-rule (4) provides that a plaintiff who abandons under sub-rule (1), or withdraws without the permission referred to in sub-rule (3), "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".
The structure is that of Order II Rule 2(3): a bar, with an exception for the case where the Court's leave was obtained at the time. But Order XXIII then says something Order II does not. Rule 2 of that Order provides: "In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
Order XXIII therefore states expressly what liberty to sue afresh is not: it is not an extension of time. Order II Rule 2(3) says nothing on the subject. On the face of the rule, leave to omit a relief removes the bar created by that rule and does no more; it does not purport to address limitation, and nothing in it suggests that the period for the omitted relief stops running while the first suit is tried. A reservation obtained at the time of the first suit and acted on years later may therefore be good against Rule 2 and worth nothing.
Where the decision actually has to be taken
It would overstate the rule to say that everything is lost at the presentation of the plaint. Rule 2 does not strike anything out of the plaint before the Court; it bars a later suit. While the first suit is alive, an omitted relief can be brought into it by amendment under Order VI Rule 17 — subject, once trial has commenced, to the proviso requiring the Court to be satisfied that in spite of due diligence the party could not have raised the matter earlier.
So there are three routes for a relief that is not in the plaint as first presented, and they close in sequence. It can be added to the suit by amendment, freely before trial commences and on proof of diligence afterwards. It can be reserved for a separate suit by leave under Order II Rule 2(3), which the rule requires at the time of the omission and which nothing permits afterwards. Or, once the first suit has been decided, it is barred — and by then, under Section 12, barred in every Court to which the Code applies.
That is why the decision belongs to the drafting stage even though the bar does not fall until later. Each route that remains open after the plaint is presented is conditional on something the plaintiff will have to prove — diligence, or an order he thought to obtain. The route available while the plaint is being drafted is conditional on nothing except noticing the question.
What the Code accepts
Order II Rule 1 asks that a suit be framed so as to prevent further litigation concerning the subjects in dispute. Rule 2 achieves that end by a particular means: it extinguishes, unheard, claims and reliefs that no Court has considered.
The Code does not present this as an adjudication and does not suggest the extinguished claim was bad. Sub-rule (2) bars the omitted portion of the claim whether or not it was good. Sub-rule (3) bars the omitted relief whether or not the plaintiff was entitled to it. Nothing in either turns on the merits of what is lost, and nothing in the decree in the first suit will disclose that anything was lost at all.
What the rule does is decide who bears the cost of an incomplete plaint, and it answers without qualification: the party who drafted it.
The other side is treated differently on the same subject. Order II closes with Rule 7: "All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived." Order I Rule 13 says the same of non-joinder and misjoinder of parties. Those rules give the defendant a deadline on the frame of the suit and a period of grace before it — until the settlement of issues, and where the ground of objection arises later, until then.
The plaintiff who chose the frame gets no equivalent grace. What he gets instead is a single application, which the rule requires him to think of at the same moment as the omission, and which is the only thing in Order II that is capable of being done in time.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.