DISCUSS THE CONCEPT ON CAUSE OF ACTION

(Project Report)

Submitted to

Mr. Sandeep Suman

Faculty Member in the drafting, pleading and convincing

Submitted by

Neha Tirkey, Sem. – 8, Section – C, Roll No. 89

DATE OF SUBMISSION – 6.03.2018

Hidayatullah National Law University

 DECLARATION

I, Neha Tirkey, hereby declare that, the project work entitled, ‘discuss the concept on cause
of action ‘submitted to H.N.L.U., Raipur is record of an original work done by me under the
able guidance of Mr. Sandeep Suman, Faculty Member of The drafting, pleading and
convincing, H.N.L.U., Raipur.

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 ACKNOWLEDGMENT

I feel highly elated to work on the topic “discuss the concept on cause of action”.

The practical realization of this project has obligated the assistance of many persons. I am
highly indebted to Mr. Sandeep Suman, the faculty member of the drafting, pleading and
convincing, for their guidance and constant supervision as well as for providing necessary
information regarding the project & also for their support in completing the project.

I would like to express my gratitude towards my parents & colleague for their kind co-
operation and encouragement which help me in completion of this project.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

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 OBJECTIVES
Objectives:
1. To study about the concept on cause of action and the code.
2. To study about the joinders of cause of action.
3. To study the exceptions to the rule on the code.

RESEARCH METHODOLOGY

The research methodology used in this project is analytical and descriptive. Data has been
collected from various books, articles, papers and web sources.

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 TABLE OF CONTENTS

1. Acknowledgements………………………………………………….……………........2

2. Objective ……………………………….…………….………………………….……..3

3. Methodology…………………………………………………………………………....3

4. Introduction……………………………………………………………………………..5-6

5. Cause of action and the code…………………………………………………………..6-8

1. Expression on cause of action………………………………………………...……6-8

2. Exceptions to the rule………………………………………………………………6-8

3. Joinders of the cause of action………………………………………………….…6-8

6. Case law…………………………………………………………………………….…9-11

7. Conclusion………………..………………………………………………….…….……12

8. References………………………………………………..……………….…..................13

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 INTRODUCTION

1
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). 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,

1 https://en.wikipedia.org/wiki/Cause_of_action

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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 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

2
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

2 https://www.lawteacher.net/free-law-essays/civil.../cause-of-action-in-a-civil-suit.php
https://www.merriam-webster.com/dictionary/cause%20of%20action
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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 causes 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.

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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 the same cause of action.

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.

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.

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Case Law
3
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. 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

3 https://www.merriam-webster.com/dictionary/cause%20of%20action

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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 Gupta 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 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. 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.

Mis-joinder 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 mis-joinder of causes of action or multifariousness. All objections on the grounds of mis-
joinder 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

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have been waived, it has, therefore been held that mis-joinder of causes of action being not an
inherent lack of jurisdiction, if the objection is not raised at the earliest possible opportunity it
stands waived. 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.

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 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 suit. 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 succeed Cause 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:

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.

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 REFERENCES

1. Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999
2. Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar (Ed.), 9th Edition, Vol. I, Wadhwa and
Company, Nagpur, 2001
3. Mulla, The Code of Civil Procedure, Binod Mohan Prasad (Ed.), 17th Edition, Lexis Nexis
Butterworths, New Delhi, 2007
4. Mallick, M.R., Mitra's Civil Procedure, 4th Edition, Eastern Law House, Kolkata, 2002

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