Report No. 144
6.2.2. Question for consideration.-
The question is this. What is the position if two suits are filed on the same day, making different claims founded on the same cause of action? How are the provisions of Order 2, rule 2 to be applied in such cases?
6.2.3. High Courts have expressed three diverging views on this question. The three views are:-
(i) Order 2, rule 2, applies in such a case. One or the other suit must be dismissed, and, for this purpose, the suit which bears the later number, should be taken as suit filed "afterwards".
(ii) The rule applies, and the plaintiff must elect. But the test of "numbering" of the suit as per (i) above should not be applied. The election should be of the plaintiff, who should decide which suit be desires to proceed with.
(iii) The Court should allow the two suits filed on the same day to be consolidated, instead of forcing upon the plaintiff dismissal of one of the suits as per (ii) above.
6.2.4. The first view is taken by the Allahabad High Court.1 The second view is taken by the Madras High Court.2 The third view has been taken by the Bombay High Court.3
1. Murti v. Bhola Ram, 1989 ILR 18 All 165 (FB).
2. Rayalu Ayyar v. Ramudu Ayyar, AIR 1926 Mad 934 (935, 936) (Courts Troller, C.J.).
3. Ganesh v. Gopal, AIR 1943 Born 12 (17, 18) (Broomfield & Macklin, JJ.)
6.2.5. In our opinion, the Allahabad view (i.e., the first view mentioned above) is, with great respect, not a very satisfactory one. The accidents of numbering of suits should not conclusively determine the career of one or other of two suits filed on the same day. As regards the Madras view, (i.e., the second of the three views mentioned above), it is, no doubt, a more practical view than the first one. Still, we think that the Bombay view is the most preferable for a variety of reasons. In the first place, it does substantial justice to the parties by suggesting a procedure (consolidation) which is convenient.
Secondly, it strikes a fairly good balance between the interests of the plaintiff and those the defendant. The plaintiff, if he has a just cause, is enabled to obtain trial thereof. At the same time, the defendant is spared of the inconvenience of being vexed by two different suits based on the same cause of action. Thirdly, consolidation of suits and hearing them together really achieves the main object of Order 2, rule 2, which is to avoid multiplicity of litigation in the shape of "splitting of claims". If the plaintiff commits an irregularity by consolidating the claim, the court can rectify the irregularity by consolidating the split portions of the claim.