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CASE NO.: Appeal (civil)  7749 of 2004

PETITIONER: Sandeep Polymers Pvt. Ltd

RESPONDENT: Bajaj Auto Ltd. and Ors

DATE OF JUDGMENT: 20/07/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.   

1.      Challenge in this appeal is to the order passed by a  learned Single Judge of the High Court of Bombay, Nagpur  Bench, directing return of the plaint, as according to the High  Court the Court at Nagpur had no jurisdiction to entertain a  part of the claims made in the suit. The plaintiff was granted   liberty to represent the plaint in the Court having jurisdiction  at Pune. The trial Court was directed to follow the procedure  under Order 7 Rule 10-A of the Code of Civil Procedure, 1908  (in short the ’CPC’)  for return of the plaint to the plaintiff.

2.      Background facts in a nutshell are as follows:

       The appellant filed a special civil suit No.881/91 for  recovery of Rs.79,63,99,736/- as damages for breach of  contract. The stand of the plaintiff in the plaint was that it is  the manufacturer of moulds and high precision plastic  component for the industrial application specially for use by  automobile industry. It has its manufacturing operations at  Nagpur and the defendants have entered into an agreement  with it for lifetime supply of its products. it has made huge  investments at Nagpur amounting to rupees thirty crores and  that it has a most sophisticated factory at Nagpur. Plaintiff is  supplying its products to the Defendant No.1 for almost two  decades. The defendant no.1 vide registered letter dated  03.11.1999, which was received by the plaintiff at its Nagpur  office on 11.11.1999, has terminated its agreement with the  plaintiff. Due to the said termination, the machineries which  were installed by the plaintiff specifically for manufacturing  moulds for the defendant No.1 would remain idle and that  there will be no use of its unit installed at Nagpur. The  plaintiff, therefore, contended that it is entitled to  compensation of damages inasmuch, as the defendant No.1’s  action of refusing to honour its promise and assurance was  illegal and arbitrary

The defendant Nos.1, 3 and 4 filed an application under  Section 9A read with Order 7 Rule 11 of CPC submitting  therein that the suit was clearly abuse of process of law and  was not maintainable. The registered office of defendants 1  and 2 was at Pune and that the defendant Nos.3 and 4 are the  residents of Pune, whereas the defendant No.5 has its  registered office at Tokyo (Japan). The lease agreements

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between defendant No.1 and the plaintiff had been executed at  Pune, and supplies were made by the plaintiff to defendant  No.1 at Pune/Aurangabad, i.e. outside the territorial  jurisdiction of Civil Judge, Senior Division, Nagpur and,  therefore, it had no territorial jurisdiction to entertain the suit  and the suit deserves to be dismissed summarily. It was  denied by the respondents-defendants that the plaintiff has  set up its factory at Nagpur at the instance of defendant No.1.  It was further contended that the plaintiff has deliberately  suppressed the fact that it has its registered office at Mumbai  and neither of the parties to the suit resided at Nagpur. The  respondents  further averred in the said application that the  parties by consent have restricted the jurisdiction to Pune  Court only. The said term pertaining to jurisdiction is  contained in all the purchase orders placed by defendant No.1  with the plaintiff. Plaintiff had deliberately filed a part of the  purchase order and suppressed that part of the purchase  order from the Court which contained the clause regarding  jurisdiction.

The non-applicant/plaintiff filed its reply to the said  application reiterating the averments made in the plaint. It  reiterated that it had made huge investments at Nagpur on the  assurance made by the defendant No.1. The plaintiff, further,  submitted in its reply that the cause of action for suit has  arisen substantially, if not wholly, within the territorial  jurisdiction of the learned Court at Nagpur. Goods were  supplied from Nagpur and the cost thereof is received at  Nagpur and that the goods have also been delivered at Nagpur.  Substantial part of the claims in the plaint was on account of  damages etc. for breach of Memorandum of Understanding (in  short ’MoU’) and the breach of assurances given by the  defendant No.1. The plaintiff, therefore, submitted that if the  substantial cause of action arises out of damages on other  counts and if the small part of the claim arises out of  purchase order, the claim cannot be separated and, therefore,  it was in the interest of justice that the Court should entertain  the present suit.

3.      The learned trial Court, after considering the rival  contentions raised on behalf of the parties, found that the suit  was outcome of the damages caused to the Unit of the plaintiff  because of the breach of the contract. He further observed that  the letter of termination was received by the plaintiff at  Nagpur. It is further observed in the order that the term about  jurisdiction pointed out on behalf of the defendants was  relating to the breach of contract under order of purchase and  not relating to the damage caused to the plaintiff by  termination of the entire contract which was admittedly for the  life time. The learned trial Court, therefore, held that the cause  of action to file present suit arises at Nagpur and, therefore,  directed the suit to proceed according to law.  

4.      Questioning for quashing the order passed by Joint Civil  Judge, Senior Division, Nagpur Civil Revision was filed before  the High Court by the respondents. It was submitted that the  substantial part of the claim arises out of four purchase orders  which came to be placed by defendant No.1 with the plaintiff.   All the purchase orders ousted the jurisdiction of all Courts  except the Court at Pune. Except these purchase orders there  was no other written contract.   Since the suit is mainly based  on the cause of action arising out of said purchase orders  which ousted the jurisdiction of Courts except the Court  situated at Pune, though there may be ancillary cause of  action the ouster clause in the purchase order governs the

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proceedings between the parties.  

5.      Reference was made to various decisions of this Court in  Hakam Singh v. M/s Gammon (India) Ltd. (AIR 1971 SC 740),  Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. (2004 (4)  SCC 671) and New Moga Transport Company v. United India  Insurance Co. Ltd. And Ors.  (2004 (4) SCC 677). The plaintiff- appellant before this Court referred to various Mou dated  6.11.1996 and submitted that the same related to the  technical terms between the parties. As per the said terms the  plaintiff was entitled to receive 7 moulds but it was given 4  moulds. There was no ouster clause in the said MoU and,  therefore, suit for breach of terms would not be covered by the  ouster clause.  

6.      Reference has also been made to various  communications dated 9.10.1993, 25.5.1996, 30.11.1996 and  23.9.1997 to substantiate the stand that assurance was given  by defendant No.1 to the plaintiff that the plaintiff would be its  life time supplier. Relying on the provisions of   Order 2 Rule 2  of CPC it was submitted that the suit is required to include the  whole of the claim which the plaintiff was entitled to make in  respect of the cause of action. Therefore, it was necessary for it  to join all causes of action and since only insignificant part of  cause of action was governed  by the purchase orders the suit  filed at Nagpur will not be governed by the ouster clause.

7.      The High Court referred to various purchase orders and  conditions and averments in the plaint.  With reference to the  averments held that the claims were referable to the purchase  orders. The averments in para 29 indicated that they were  referable to MoU dated 6.11.1996. According to the High Court  perusal of the purchase orders indicated that the said MoU  was also a part of the purchase orders. With reference to  Condition No.20 of the purchase orders it was held that only  the Pune Court had jurisdiction in all the matters arising out  of the purchase orders. Accordingly, the High Court held that  the suit is based on several causes of action and it was open to  the plaintiff to file a suit for causes of action not related to  purchase order at Nagpur and to file another suit arising out  of cause of action related to the purchase orders at Pune.  

8.      Accordingly, the order was passed for return of the  plaint.

9.      In support of the appeal, with reference to the order of  the trial Court it was submitted that in para 60 it was  categorically held that the court at Nagpur had jurisdiction to  try the suit. The High Court accepted that by operation of  Order 2 Rule 2 CPC it was permissible to raise several causes  of action and there was no ouster clause in that sense. The  main relief is for damages and costs incurred. The purchase  order related only to part of the relief claimed.  Therefore, it  was submitted that the trial Court’s view should not have been  interfered with.

10.     In response, learned counsel for the respondents  submitted that the High Court has noted that the purchase  orders clearly excluded the jurisdiction and, therefore,   the  High Court’s view is irreversible.  

11.     The relevant portion of the purchase orders which are  identical reads as follows:

"NOTES:

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1. THE MOULDS WILL BE DESIGNED AND MANUFACTURED AS PER THE FOLLOWING:

(1) THE MEMORANDUM OF UNDERSTANDING (MOU) DATED 6 NOVEMBER 1996, EXECUTED BETWEEN M/S BAL M/S MARUBENT  CORPORATION, M/S TAKAHASHI SEIKI CO., LTD.,  M/S TOKYO  R&D CO. LTD. AND M/S SUNDEEP POLYMERS  PVT. LTD. AND AMENDMENT THERETO AS MAY  BE AGREED TO BETWEEN THE PARTIES FROM  TIME TO TIME AS PER THE PROJECT NEEDS.

(2) TECHNICAL ASSISTANCE AGREEMENT DATED 11/2/97 BETWEEN TAKAHASHI SEIKI CO. LTD.  AND SUNDEEP POLYMERS LTD.

TERMS AND CONDITIONS 1.      PRICE PRICES ARE FIRM AND FOR FREE DELIVERY  AT OUR WORKS  6.      PAYMENT         60% ADVANCE ALONGWITH THE ORDER.         20% AFTER SUBMISSION OF T1 SAMPLE 20% AFTER FINAL APPROVAL OF SAMPLE  AND MOULD

12.     GUARANTEE MOULD SHOULD BE GUARANTEED FOR  QUALITY, PRECISION, RELIABILITY AND ALSO  FOR WORKMANSHIP AND PERFORMANCE, USE  OF MATERIAL AND DESIGN WE SHOULD BE ABLE  TO GET MINIMUM 300,000 PIECES WITH NORMAL  MAINTENANCE. CONDITIONS 15. The prices and terms and conditions in this  order will be taken as firm and cannot be changed  till the order is fully executed. 20. This contract shall be deemed to have been  entered into at Pune and only Pune Courts will have  jurisdiction in all matters arising out of this Order."                   Some of the pleadings in the plaint also need to be noted.  "29. In the year 1995 or near about, the lst  defendant finalized the new model scooter in the  Japan, Code name alpha-4 in co-operation with the  defendant No.5. Since this was to be a modern  design vehicle, having entire plastic body, it was  important to select a top quality supplier in India  for the development of supplier of plastic parts for  alpha-4 vehicle and such similar models in the  future.

(a) The 1 defendant placed an order for a supply of a  part of the moulds for the alpha-4 from the  defendant No.5 and raised a purchase order  No.529911 dated  6/11/1996 on the 5th defendant  for an approximate amount of Rs.JPY 175 Million.  The plaintiff craves leave to refer to and rely upon  the aforesaid Purchase Order of the 1 defendant  when produced.

(b) A Memo. of Understanding (M0U) has been  entered into by various parties involved in the  development of Alpha-4, viz. the plaintiff, defendant

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Nos.1 and 3, Takahashi Seiki and another Japanese  Company Tokyo R&D Co. Ltd. This MoU spelt out  the role and obligation of each party in the  development of the plastic parts of the Alpha-4. The  Ist defendant also spelt out its commitment in  buying the plastic parts from the moulds supplied  by the 5th defendant and for which the plaintiff was  to set up additional investments. Hereto enclosed  and annexed as document No.XXIV is a copy of the  aforesaid Mou."

33.     In line with the aforesaid understanding  between the plaintiff and the Ist, 4th and 5th  defendants and also relying upon the MoU and the  Ist defendant’s letter dated 30.11.1996 the plaintiff  agreed to accept the 4 sets of Purchase Orders for  the manufacture of 10 Alpha-4 moulds, raised by  the 1st defendant, at an initial payment of Rs.296.7  lacs. These Purchase Orders are:

a)      No.541024 dated 12/2/1997 for Rs.148.5 lacs. b)      No.541023 dated 12/2/1997 for Rs.111.5 lacs. c)      No.2121209 dated 22/2/1998 for Rs 35 lacs. d)      No.20122154 dated 16/3/1998 for Rs.1.7 lacs.

The aforesaid Purchase Orders were in the tine  with the MoU and the Technical Assistance  Agreement, as already spelt out, and the same also  mentioned on the Orders."

12.     In Sopan Sukhdeo Sable and Ors. v. Assistant Charity  Commissioner and Ors. (2004 (3) SCC 137) it was inter-alia  held as follows: "16. Submission of learned counsel for respondent  No.2-trust was that requirement of law being  reading the plaint in its totality, the appellants  cannot take the plea that they would give up or  relinquish some of the reliefs sought for. That would  not be permissible. The plea clearly overlooks the  basic distinction between statements of the facts  disclosing cause of action and the reliefs sought for.  The reliefs claimed do not constitute the cause of  action. On the contrary, they constitute the  entitlement, if any, on the basis of pleaded facts. As  indicated above, Order VI Rule 2 requires that  pleadings shall contain and contain only a  statement in a concise form of the material facts on  which the party pleading relies for his claim. If the  plea of Mr. Savant, learned counsel for the  respondent-trust is accepted the distinction  between the statement of material facts and the  reliance on them for the claim shall be obliterated.  What is required in law is not the piecemeal reading  of the plaint but in its entirety. Whether the reliefs  would be granted on the pleaded facts and the  evidence adduced is totally different from the relief  claimed. All the reliefs claimed may not be allowed  to a party on the pleadings and the evidence  adduced. Whether part of the relief cannot be  granted by the Civil Court is a different matter from  saying that because of a combined claim of reliefs  the jurisdiction is ousted or no cause of action is  disclosed. Considering the reliefs claimed vis-a-vis  the pleadings would not mean  compartmentalization or segregation, in that sense.

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The plea raised by the respondent-trust is therefore  clearly unacceptable.   

17.     Keeping in view the aforesaid principles the  reliefs sought for in the suit as quoted supra have to  be considered. The real object of Order VII Rule 11  of the Code is to keep out of courts irresponsible law  suits. Therefore, the Order X of the Code is a tool in  the hands of the Courts by resorting to which and  by searching examination of the party in case the  Court is prima facie of the view that the suit is an  abuse of the process of the court in the sense that it  is a bogus and irresponsible litigation, the  jurisdiction under Order VII Rule 11 of the Code can  be exercised.  

18.     As noted supra, Order VII Rule 11 does not  justify rejection of any particular portion of the  plaint. Order VI Rule 16 of the Code is relevant in  this regard. It deals with ’striking out pleadings’. It  has three clauses permitting the Court at any stage  of the proceeding to strike out or amend any matter  in any pleading i.e. (a) which may be unnecessary,  scandalous, frivolous or vexatious, or, (b) which  may tend to prejudice, embarrass or delay the fair  trial of the suit, or, (c) which is otherwise an abuse  of the process of the Court.  

19.     Order VI Rule 2(1) of the Code states the basic  and cardinal rule of pleadings and declares that the  pleading has to state material facts and not the  evidence. It mandates that every pleading shall  contain, and contain only, a statement in a concise  form of the material facts on which the party  pleading relies for his claim or defence, as the case  may be, but not the evidence by which they are to  be proved.  

20.     There is distinction between ’material facts’  and ’particulars’. The words ’material facts’ show  that the facts necessary to formulate a complete  cause of action must be stated. Omission of a single  material fact leads to an incomplete cause of action  and the statement or plaint becomes bad. The  distinction which has been made between ’material  facts’ and ’particulars’ was brought by Scott, L.J. in  Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the  following passage :  The cardinal provision in Rule 4 is that  the statement of claim must state the  material facts. The word "material" means  necessary for the purpose of formulating  a complete cause of action; and if any one  "material" statement is omitted, the  statement of claim is bad; it is  "demurrable" in the old phraseology, and  in the new is liable to be "struck out"  under R.S.C. Order XXV, Rule 4 (see  Philipps v. Philipps ((1878) 4 QBD 127));  or "a further and better statement of  claim" may be ordered under Rule 7.  The function of "particulars" under Rule 6  is quite different. They are not to be used  in order to fill material gaps in a  demurrable statement of claim - gaps

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which ought to have been filled by  appropriate statements of the various  material facts which together constitute  the plaintiff’s cause of action. The use of  particulars is intended to meet a further  and quite separate requirement of  pleading, imposed in fairness and justice  to the defendant. Their function is to fill  in the picture of the plaintiff’s cause of  action with information sufficiently  detailed to put the defendant on his  guard as to the case he had to meet and  to enable him to prepare for trial.  

The dictum of Scott, L.J. in Bruce case (supra) has  been quoted with approval by this Court in Samant  N. Balkrishna v. George Fernandez (1969 (3) SCC  238), and the distinction between "material facts"  and "particulars" was brought out in the following  terms:   The word ’material’ shows that the facts  necessary to formulate a complete cause  of action must be stated. Omission of a  single material fact leads to an  incomplete cause of action and the  statement of claim becomes bad. The  function of particulars is to present as  full a picture of the cause of action with  such further information in detail as to  make the opposite party understand the  case he will have to meet".  

Rule 11 of Order VII lays down an independent  remedy made available to the defendant to challenge  the maintainability of the suit itself, irrespective of  his right to contest the same on merits. The law  ostensibly does not contemplate at any stage when  the objections can be raised, and also does not say  in express terms about the filing of a written  statement. Instead, the word ’shall’ is used clearly  implying thereby that it casts a duty on the Court to  perform its obligations in rejecting the plaint when  the same is hit by any of the infirmities provided in  the four clauses of Rule 11, even without  intervention of the defendant. In any event, rejection  of the plaint under Rule 11 does not preclude the  plaintiffs from presenting a fresh plaint in terms of  Rule 13.  

xx              xx              xx              xx              xx

22.     Under Order II Rule 1 of the Code which  contains provisions of mandatory nature, the  requirement is that the plaintiffs are duty bound to  claim the entire relief. The suit has to be so framed  as to afford ground for final decision upon the  subjects in dispute and to prevent further litigation  concerning them. Rule 2 further enjoins on the  plaintiff to include the whole of the claim which the  plaintiff is entitled to make in respect of the cause of  action. If the plaintiff omits to sue or intentionally  relinquishes any portion of his claim, it is not  permissible for him to sue in respect of the portion  so omitted or relinquished afterwards. If the  plaintiffs as contended by Mr. Mohta want to

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relinquish some reliefs prayer in that regard shall  be done before the trial Court. A reading of the  plaint and the reliefs along with the contents of the  plaint goes to show that the main dispute relates to  the question of continuance of tenancy and the  period of tenancy. They are in essence unrelated  with the other reliefs regarding enquiry into the  affairs of the trust. Such enquiries can only be  undertaken under Section 50 of the Act. For  instituting the suit of the nature specified in Section  50, prior consent of the Charity Commissioner is  necessary under Section 51. To that extent Mr.  Savant is right that the reliefs relatable to Section  50 would require a prior consent in terms of Section  51. If the plaintiffs give up those reliefs claimed in  accordance with law, the question would be whether  a cause of action for the residual claims/reliefs  warrant continuance of the suit. The nature of the  dispute is to be resolved by the Civil Court. The  question of tenancy cannot be decided under  Section 50 of the Act. Section 51 is applicable only  to suits which are filed by a person having interest  in the trust. A tenant of the trust does not fall  within the category of a person having an interest in  the trust.  Except relief in Para D of the plaint, the  other reliefs could be claimed before and can be  considered and adjudicated by the Civil Courts and  the bar or impediment in Sections 50 and 51 of the  Act will have no relevance or application to the other  reliefs. That being so, Sections 50 and 51 of the Act  would not have any application to that part of the  relief which relates to question of tenancy, the term  of tenancy and the period of tenancy. The inevitable  conclusion therefore is that Courts below were not  justified in directing rejection of the plaint. However,  the adjudication in the suit would be restricted to  the question of tenancy, terms of tenancy and the  period of tenancy only. For the rest of the reliefs, the  plaintiffs shall be permitted within a month from  today to make such application as warranted in law  for relinquishing and/or giving up claim for other  reliefs."  

13.     In Om Prakash Srivastava v. Union of India and Anr.  (2006 (6) SCC 207) it was held as follows: 9.      By "cause of action" it is meant every fact,  which, if traversed, it would be necessary for the  plaintiff to prove in order to support his right to a  judgment of the Court. In other words, a bundle of  facts, which it is necessary for the plaintiff to prove  in order to succeed in the suit. (See Bloom Dekor  Ltd. v. Subhash Himatlal Desai and Ors. (1994 (6)  SCC 322).

10.     In a generic and wide sense (as in Section 20  of the Civil Procedure Code, 1908) "cause of action"  means every fact, which it is necessary to establish  to support a right to obtain a judgment. (See  Sadanandan Bhadran v. Madhavan Sunil Kumar  (1998 (6) SCC 514).   

11.     It is settled law that "cause of action" consists  of bundle of facts, which give cause to enforce the  legal inquiry for redress in a court of law. In other  words, it is a bundle of facts, which taken with the

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law applicable to them, gives the plaintiff a right to  claim relief against the defendant. It must include  some act done by the defendant since in the  absence of such an act no cause of action would  possibly accrue or would arise. (See South East Asia  Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt.  Ltd. and others. (1996 (3) SCC 443).

12.     The expression "cause of action" has acquired  a judicially settled meaning. In the restricted sense  "cause of action" means the circumstances forming  the infraction of the right or the immediate occasion  for the reaction. In the wider sense, it means the  necessary conditions for the maintenance of the  suit, including not only the infraction of the right,  but also the infraction coupled with the right itself.  Compendiously, as noted above the expression  means every fact, which it would be necessary for  the plaintiff to prove, if traversed, in order to  support his right to the judgment of the Court.  Every fact, which is necessary to be proved, as  distinguished from every piece of evidence, which is  necessary to prove each fact, comprises in "cause of  action". (See Rajasthan High Court Advocates’  Association v. Union of India and Ors. (2001 (2)  SCC 294).

13.     The expression "cause of action" has  sometimes been employed to convey the restricted  idea of facts or circumstances which constitute  either the infringement or the basis of a right and  no more. In a wider and more comprehensive sense,  it has been used to denote the whole bundle of  material facts, which a plaintiff must prove in order  to succeed. These are all those essential facts  without the proof of which the plaintiff must fail in  his suit. (See Gurdit Singh v. Munsha Singh (1977  (1) SCC 791).

14.     The expression "cause of action" is generally  understood to mean a situation or state of facts that  entitles a party to maintain an action in a court or a  tribunal; a group of operative facts giving rise to one  or more bases of suing; a factual situation that  entitles one person to obtain a remedy in court from  another person. (See Black’s Law Dictionary). In  Stroud’s Judicial Dictionary a "cause of action" is  stated to be the entire set of facts that gives rise to  an enforceable claim; the phrase comprises every  fact, which if traversed, the plaintiff must prove in  order to obtain judgment. In "Words and Phrases"  (4th Edn.) the meaning attributed to the phrase  "cause of action" in common legal parlance is  existence of those facts, which give a party a right to  judicial interference on his behalf. (See  Navinchandra N. Majithia v. State of Maharashtra  and Ors. (2000 (7) SCC 640).

15.     In Halsbury Laws of England (Fourth Edition)  it has been stated as follows:

"Cause of action has been defined as  meaning simply a factual situation the  existence of which entitles one person to  obtain from the Court a remedy against

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another person. The phrase has been  held from earliest time to include every  fact which is material to be proved to  entitle the plaintiff to succeed, and every  fact which a defendant would have a right  to traverse. ’Cause of action’ has also  been taken to mean that particular act on  the part of the defendant which gives the  plaintiff his cause of complaint, or the  subject matter of grievance founding the  action, not merely the technical cause of  action".

16.     As observed by the Privy Council in Payana v.  Pana Lana (1914) 41 IA 142, the rule is directed to  securing the exhaustion of the relief in respect of a  cause of action and not to the inclusion in one and  the same action or different causes of action, even  though they arises from the same transaction. One  great criterion is, when the question arises as to  whether the cause of action in the subsequent suit  is identical with that in the first suit whether the  same evidence will maintain both actions. (See  Mohammad Khalil Khan v. Mahbub Ali Mian (AIR  1949 PC 78).

17.     It would be appropriate to quote para 61 of the  said judgment, which reads as follows:-          "61. (1) The correct test in cases falling  under Order II Rule 2, is whether the  claim in the new suit is in fact founded  upon a cause of action distinct from that  which was the foundation of the former  suit (Moonshee Buzloor Fuheer v.  Shumroonnissa Begum, (1967)11 Moo I  551 : 2 Bar 259 (P.C.).

(2) The ’cause of action’ means every fact  which will be necessary for the plaintiff to  prove it traversed in order to support his  right to the judgment (Real v. Brown ;  (1889) 22 Q.B.O. 138: 58 L.J. Q.B. 476).

(3) If the evidence to support the two  claims is different, then the causes of  action are also  different. (Brunsoon v.  Nurnphroy (18841 Q.B.O. 141. : 53  L.J.Q. B. 476).

(4) The causes of action in the two suits  may be considered to be the same  if in  substance they are identical ( Brunsoon  v, Numphroy, supra).

(5) The cause of action has no relation  whether to the defence that may be set  up by the defendant nor does it depend  upon the character of the relief prayed for  by the plaintiff. It refers \005\005.. to media  upon which the plaintiff asks the Court to  arrive a conclusion in his favour. (Mst.  Chand Kour v. Pratap Singh : (1887)15 IA  156. This observation was made by Lord

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Watson in a case under section 43 of the  Act of 1880 (corresponding to Order II,  Rule 2) where plaintiff made various  claim in the same suit".

14.     Learned counsel for the appellant submitted that a  separate suit shall be filed in relation to purchase orders at  Pune and necessary amendments to the plaint filed at Nagpur  shall be made. It shall be open to the respondents-defendants  to raise such objections and to take such stand as are  available. In view of  above, we dispose of the appeal with the  following directions: (1)     It shall be open to the appellant to file a separate  suit in relation to cause of action if any relating  for  the purchase orders, at Pune as was submitted by  learned counsel for the appellant. (2)     If the appellant is so advised it may move for  amendment of the suit at Nagpur. (3)     It shall be open to the respondents-defendants to  raise all objections and take such pleas as are  available in law.  

15.     Appeal is disposed of with no order as to costs.