Or.2 rule 2 and Or. 7 rule 11 C.P.C = Or.2 rule 2 C.P.C when applies ? Can it be decided at the threshold ? = K.Baladhandayudam : Petitioner/ Defendant Vs. P.S.R.Sathiyamurthy : Respondent/ Plaintiff = Reported in http://judis.nic.in/judis_chennai/filename=41638

Or.2 rule 2 and Or. 7 rule 11 C.P.C = Or.2 rule 2 C.P.C when applies ? Can it be decided at the threshold ? =

the revision petitioner/defendant filed a statement stating that the suit is barred by Order 2 Rule 2 CPC and it is liable to be dismissed and the respondent/plaintiff along with his vendor Rajmohan and another person filed a suit in O.S.No.328 of 2010 on the file of the District Munsif Court, Panruti against the revision petitioner and four others for permanent injunction and the cause of action for the present suit i.e. O.S.No.52 of 2012 and the cause of action for the suit in O.S.No.328 of 2010 are one and the same and therefore, the suit is barred under Order 2 and Rule 2 CPC. The revision petitioner herein also filed I.A.No.325 of 2012 under Order 7 Rule 11 of CPC to reject the plaint on the ground that the suit is barred under Order 2 Rule 2 of CPC and that application was dismissed and aggrieved by the same, this revision is filed. =

Order 2, Rule 1 and 2. Order 2 Rule 1 and 2 reads as follows:-

1.Frame of suit: 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. 

2.Suit to include the whole claim: (1)Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2)Relinquishment of part of claim: 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. 

(3)Omission to sue for one of several reliefs: 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." 

No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. 

But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. 

Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. 

The two pleas are different and one will not include the other. 

The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable. 

II.The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under order 2 Rule 2 of the Code was not attracted.  

18.Though, in those cases, the revision petitioner has pleaded that the suit O.S.No.52 of 2012 is barred under Order 2 Rule 2 CPC, the suit is at the primary stage and issues have to be framed and the parties must be given opportunity to explain or demonstrate to the effect that the suit was based on the different cause of action and therefore, at the threshold, it is not advisable to reject his suit on the ground of Order 2 Rule 2 CPC. 

................................................................................................................................................................................

the present suit O.S.No.52 of 2012 was filed two years latter and it is not a suit for recovery of possession and the plaintiff, namely the respondent herein alleged that he is in possession of the suit property by fencing the same and the revision petitioner herein claiming title from the power agent and obtained service connection and also attempted to take forcible possession and therefore, the suit was filed for declaration of title and injunction. Therefore, having regard to the pleadings in O.S.No.328 of 2010 and in O.S.No.52 of 2012 at this stage, it cannot be stated that the relief of declaration of title was available, when O.S.No.328 of 2010 was filed by the respondent/plaintiff herein along with others and omitted to pray for that relief in the earlier suit and therefore, the present suit O.S.No.52 of 2012 is barred by Order 2 Rule 2 CPC.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  02.04.2013

CORAM:
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P(PD)No.3861 of 2012
and
M.P.No.1 of 2012
                                   
K.Baladhandayudam                    :   Petitioner/
                                         Defendant
 
Vs.
               
                           
P.S.R.Sathiyamurthy                  :  Respondent/
                                        Plaintiff

PRAYER:This Civil Revision Petition filed under Article 227 of the Constitution of India, against the order and decretal order, dated 27.09.2012 in I.A.No.325 of 2012 in O.S.No.52 of 2012 on the file of the Subordinate Judge, Panruti.

  For Petitioner       : Mr.AR.L.Sundaresan,
                               Senior counsel
                               for Mrs.A.L.Gandhimathi

For Respondent     : Mr.A.K.Kumarasamy


                         O R D E R

The defendant in O.S.No.52 of 2012 on the file of the Sub Court, Panruti, is the revision petitioner.

2.The respondent/plaintiff filed the suit for declaration of title and for permanent injunction stating that the property originally belonged to one Rajmohan and Rajmohan sold the property to the plaintiff under a registered sale deed, dated 04.11.2010 and ever-since the date of purchase, the respondent/plaintiff is in effective possession of the property as absolute owner and also fenced the property. Earlier, his vendor Rajmohan executed a power in favour of one Rajagopal and thereafter, the power was cancelled and the revision petitioner herein alleged to have purchased the property from the power agent and also got service connection in respect of the suit property and is attempting to put up a construction and also trying to trespass into the suit property and therefore, the suit was filed for declaration of title and injunction.

3.In that suit, the revision petitioner/defendant filed a statement stating that the suit is barred by Order 2 Rule 2 CPC and it is liable to be dismissed and the respondent/plaintiff along with his vendor Rajmohan and another person filed a suit in O.S.No.328 of 2010 on the file of the District Munsif Court, Panruti against the revision petitioner and four others for permanent injunction and the cause of action for the present suit i.e. O.S.No.52 of 2012 and the cause of action for the suit in O.S.No.328 of 2010 are one and the same and therefore, the suit is barred under Order 2 and Rule 2 CPC. The revision petitioner herein also filed I.A.No.325 of 2012 under Order 7 Rule 11 of CPC to reject the plaint on the ground that the suit is barred under Order 2 Rule 2 of CPC and that application was dismissed and aggrieved by the same, this revision is filed.

4.Mr.AR.L.Sundaresan, the learned Senior counsel appearing for the revision petitioner submitted that a reading of the plaint in O.S.No.328 of 2010 and O.S.No.52 of 2012 would make it clear that in respect of the same cause of action, the plaintiff/respondent herein filed O.S.No.328 of 2010 along with four others and prayed for injunction. Though at that time, the prayer for declaration ought to have been prayed for in O.S.No.328 of 2010, as the plaintiffs in that suit were also aware that their title was in dispute at that time, nevertheless, without getting the leave from the court for filing a suit for declaration at the relevant point of time, they have chosen to file a suit for bare injunction and two years latter, the respondent alone filed a suit for declaration and for permanent injunction and even at that time of filing of O.S.No.328 of 2010, the revision petitioner herein disputed the tittle of the respondent/plaintiff herein and that was also mentioned in the plaint in O.S.No.328 of 2010 and therefore, the present suit filed by the plaintiff/respondent for declaration and for injunction in respect of the same cause of action is clearly barred by Order 2 Rule 2 CPC and therefore, the plaint in O.S.No.52 of 2012 is liable to be rejected. The learned Senior counsel relied upon the judgment of the Hon'ble Supreme court reported in (2005)5 SCC 548, in the matter of N.V.Srinivas Murthy and others vs. Mariyamma (Dead) by proposed Lrs and others and 2012(5) CTC 359 in the matter of Virgo Industries (Eng.) Ltd., vs. Venturetech  Solution P. Ltd., in support of his contention.

5.Mr.A.K.Kumarasamy, the learned counsel appearing for the respondent/plaintiff submitted that the trial court, after carefully appreciating the pleadings in both the cases, rightly held that the cause of action for both the suits are different and therefore, the suit filed by the respondent/plaintiff in O.S.No.52 of 2012 is not barred under Order 2 Rule 2 of CPC and therefore, the order of the Court below need not be interfered with.

6.He further submitted that as per the judgment of the Hon'ble Supreme Court reported in 2011(1)LW 193 in the matter of Alka Gupta vs. Narender Kumar Gupta, a suit cannot be rejected at the threshold by invoking the provision of Order 2 Rule 2 CPC without giving any opportunity to the plaintiff to substantiate the case by leading evidence that the subsequent suit is based on a separate cause of action and therefore, submitted that the revision is liable to be dismissed.

7.To appreciate the contention of both parties, we will have to see the pleadings in both the suits.

8.Before doing so, it is pertinent to look at the provision of Order 2 Rule 2 CPC to find out the implication of Order 2, Rule 1 and 2. Order 2 Rule 1 and 2 reads as follows:-
1.Frame of suit: 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.

2.Suit to include the whole claim: (1)Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2)Relinquishment of part of claim: 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.

(3)Omission to sue for one of several reliefs: 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."
9.In the judgment reported in 2011(1) LW 193 [Alka Gupta vs. Narender Kumar Gupta], the Hon'ble Supreme court relying upon the judgment of the Hon'ble Supreme court reported in AIR 1964 SC 1810 [Gurbux Singh vs. Bhoora Lal] held as follows:-

"In order that a plea of a bar under O. 2, R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."

10.In the judgment reported in 2012(5)CTC 359 in the matter of Virgo Industries (Eng.) P. Ltd., vs. Venture tech Solutions P. Ltd., the scope of Order 2, Rule 2 has been held as follows:-

9.Order 2, Rule 1 requires every Suit to include the whole of the claim to which the Plaintiff is entitled in respect of any particular cause of action.  However, the Plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2, Rule 2 contemplates a situation where a Plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the Plaintiff so acts, Order 2, Rule 2 of C.P.C. makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2, Rule 2(2) does not contemplate omission or relinquishment of any portion of the Plaintiff's claim with the leave of the Court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2, Rule 2(3) in situations where a Plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the Plaintiff is precluded from brining a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2, Rule 2(2) & (3)of C.P.C. that the aforesaid two sub-rules of Order 2, Rule 2 contemplate two different situations, namely, where a Plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent in suit seeking the relief omitted in the earlier suit proved [provided] that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.

Therefore, it is made clear that in respect of the same cause of action, when the plaintiff is entitled to seek for more than one relief and if he omits to sue for the same relief without getting the leave of the court, latter he cannot file another suit for the same relief in respect of the same cause of action.
11.'Cause of action' is defined in Halsbury's Law of England (4th Edition) as follows:-

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

12.The above passage has been quoted by the Hon'ble Supreme Court in the judgment reported in 2012(4)CTC 308(SC) in the matter of Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman vs. Ponniamman Educational Trust, represented by its Chairperson/Managing Trustee and the same is also followed in the judgment reported in 2012 (5) CTC 359.
13.Therefore, we will have to see whether the cause of action for filing the suit O.S.No.328 of 2010 and O.S.No.52 of 2012 is one and the same and to find out the same, we will have to look into the pleadings in both the cases.

14.O.S.No.328 of 2010 was filed by the respondent/plaintiff herein along with his vendor S.Rajmohan and another person, by name R.Kumaravel against the Inspector of Police Panruti, the Deputy Superintendent of Police, Panruti, the Superintendent of Police, Cuddalore, A.Rajagopal the power of attorney of Rajmohan and the revision petitioner herein. In that suit, it is stated that the vendor of the respondent/plaintiff, by name Rajmohan, the first plaintiff in O.S.No.328 of 2010 executed a registered power of attorney in favour of A.Rajagopal, the 4th respondent in O.S.No.328 of 2010 in respect of the suit property and the reason for executing the power was also stated in that suit and it was further stated that after coming to know the true colour of the power agent namely the 4th respondent in O.S.No.328 of 2010, the power executed by Rajmohan, the first plaintiff in O.S.No.328 of 2010 in favour of the 4th defendant A.Rajagopal was cancelled through a cancellation deed, dated 12.08.2010 and thereafter, the suit property in O.S.No.52 of 2012 was sold by Rajmohan, the first plaintiff in O.S.No.328 of 2010 to the respondent/plaintiff herein under a registered sale deed, dated 04.11.2010 and another portion was sold to the 3rd plaintiff in O.S.No.328 of 2010 under a sale deed, dated 04.11.2010 and ever-since the date of sale, the purchasers were in the possession of the property and it is further stated that the power agent and  the revision petitioner herein have conspired together and crated some invalid documents to defeat the right and title of the first plaintiff in that suit property, namely Rajmohan and the defendants 4 and 5, namely the power of attorney Rajagopal and the revision petitioner herein with the help of the police officials attempted to take forcible possession of the suit property, which was under the enjoyment of the plaintiffs 2 and 3 in the suit O.S.No.328 of 2010 on 13.12.2010 and therefore, the suit was filed for injunction against the defendants named therein.  Therefore, a reading of the plaint in O.S.No.328 of 2010 makes it clear that Rajmohan was the owner of the property and he executed a power in favour of Rajagopal, the 4th respondent and the 4th respondent Rajagopal and the 5th defendant, namely the revision petitioner herein conspired together and created some documents to defeat the right of Rajmohan, the vendor of the respondent/plaintiff in this case, by creating some invalid documents and also attempted to take forcible possession of the suit property with the help of the police officials on 13.12.2010 and therefore, the suit was filed for injunction.

15.In that suit O.S.No.328 of 2010, it was not stated that the defendants 4 and 5, namely A.Rajagopal and K.Balathandayudam, the revision petitioner herein disputed the title of the respondent/plaintiff herein and it was only stated that they created some invalid documents to defeat the right and title of Rajmohan, the respondent/plaintiff's vendor herein and the defendants 4 and 5 with the help of the police officials attempted to take forcible possession on 13.12.2010, which necessitated the plaintiff in that suit to file a suit for bare injunction.


16.In the present case in O.S.No.52 of 2012, it was admitted that Rajmohan, the plaintiff's vendor, appointed the Rajagopal as his power agent and latter, the power was cancelled and thereafter, the said Rajmohan sold the suit property to the respondent herein under a registered sale deeds, dated 04.11.2010 and on 27.04.2012, the revision petitioner attempted to trespass into the suit property claiming right under the sale deed executed by Rajmohan and as the plaintiff's title was disputed, a suit was filed for declaration and permanent injunction. Therefore, a plain reading of the plaint, in two cases, would make it clear that the cause of action for the suit in O.S.No.328 of 2010 was the interference caused by the defendants 4 and 5 to the plaintiff's possession in that suit with the help of the police officials and therefore, the vendor as well as the purchasers filed a suit for injunction as against the police officials and also against the power agent and the revision petitioner and in that suit, it was not stated that the revision petitioner purchased the property from Rajagopal and it was only stated that the defendants 4 and 5 created some invalid documents to defeat the right and title of the first plaintiff in that suit. Only in O.S.No.52 of 2012, it was stated that the power agent sold the property to the revision petitioner herein, after the cancellation of the power and under the said sale deed executed by the power agent in favour of the revision petitioner, he claimed title and attempted to interfere with the possession and enjoyment of the property on 27.04.2012 and therefore, the suit for declaration of title and injunction was filed. Therefore, a prima facie reading of the plaint in both the cases, in my opinion, were filed on different causes of action and as held by the Hon'ble Supreme court in the above said judgment referred to above, unless the relief, that was prayed for in the subsequent suit was available to the plaintiff in the earlier suit and without praying for the same and without obtaining the leave of the court, the earlier suit was filed for a lesser relief, then only bar under Order 2 Rule 2 CPC comes into operation. In my opinion, the cause of action for both the suits are different and therefore, it cannot be stated that the plaintiffs in O.S.No.328 of 2010 ought to have prayed for declaration of tittle in that suit and omitted to pray for declaration of title in the earlier suit would not be a bar to file in the present suit O.S.No.52 of 2012.
17.Further in the judgment reported in 2011(1) LW 193 [Alka Gupta vs. Narender Kumar Gupta], it has been held as follows:-
Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court can not examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable.

II.The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under order 2 Rule 2 of the Code was not attracted.


18.Though, in those cases, the revision petitioner has pleaded that the suit O.S.No.52 of 2012 is barred under Order 2 Rule 2 CPC, the suit is at the primary stage and issues have to be framed and the parties must be given opportunity to explain or demonstrate to the effect that the suit was based on the different cause of action and therefore, at the threshold, it is not advisable to reject his suit on the ground of Order 2 Rule 2 CPC.

19.Further, it is not known whether the revision petitioner herein took the plea in O.S.No.328 of 2010 that he purchased the property from the power agent before the cancellation of power by the Principal, namely the first plaintiff in O.S.No.328 of 2010 and he was in possession of the property from that date. The written statement filed in O.S.No.328 of 2010 was not filed along with the typed set of papers and it was also not submitted by the learned Senior Counsel, while submitting his argument that in the written statement filed in O.S.No.328 of 2010, the revision petitioner herein made it clear that he purchased the property from the power agent earlier to the date of cancellation of the power by the Principal.

20.Further, the present suit O.S.No.52 of 2012 was filed two years latter and it is not a suit for recovery of possession and the plaintiff, namely the respondent herein alleged that he is in possession of the suit property by fencing the same and the revision petitioner herein claiming title from the power agent and obtained service connection and also attempted to take forcible possession and therefore, the suit was filed for declaration of title and injunction. Therefore, having regard to the pleadings in O.S.No.328 of 2010 and in O.S.No.52 of 2012 at this stage, it cannot be stated that the relief of declaration of title was available, when O.S.No.328 of 2010 was filed by the respondent/plaintiff herein along with others and omitted to pray for that relief in the earlier suit and therefore, the present suit O.S.No.52 of 2012 is barred by Order 2 Rule 2 CPC.
21.In the judgment reported in 2012(5) CTC 359 [Virgo Industries (Eng.) P. Ltd., vs. Venture tech Solutions P. Ltd, the facts are entirely different. In that reported case, two agreements of sale were entered into by the plaintiff and the defendant in respect of two different parcels of property on 27.07.2005 and six months time was provided for completion of the sale deed. Nevertheless, the plaintiff filed C.S.Nos.831 of 2005 and C.S.No.833 of 2005 before the Original Side of this court and prayed for permanent injunction restraining the defendant from alienating, encumbering or dealing with the plaint schedule properties to any other third party, on the basis of two agreements of sale executed by the defendant in favour of the plaintiffs. Thereafter, in the year 2007, the very same plaintiff filed suits in O.S.Nos.202 and 203 of 2007 on the file of the District Court, Tiruvallur for specific performance of agreement of sale and in that context, the Hon'ble Supreme Court held that at the time of filing C.S.Nos.831 and 833 of 2005 for injunction, the plaintiff ought to have prayed for specific performance of agreement, as that relief was available at that time and even though, six months period was fixed for completion of the sale deed under the Specific Relief Act, 1963, the plaintiff need not wait for expiry of due date for performance of agreement of sale in a situation where the defendant had made intentions clear by his overt acts and therefore, having regard to the allegations made in C.S.Nos.831 and 833 of 2005 and the nature of prayer prayed for in those two suits namely, injunction restraining the defendant from alienating the suit property to any third party, the relief for specific performance was available to the plaintiff at the time of filing of two suits in C.S.Nos.831 and 833 of 2005 and that was omitted to be prayed for without getting the leave and therefore, the subsequent suits filed by the plaintiff in O.S.Nos.202 and 203 of 2007 before the District Court, Thiruvallur were bared by Order 2 Rule 2 CPC.
22.Similarly, in the judgment reported in (2005)5 SCC 548,[N.V.Srinivasa Murthy and others vs. Mariyamma (Dead) by proposed Lrs. and others], the facts were entirely different and in that reported case, the allegations in the 2nd suit were that the plaintiff's father incurred some debts and borrowed some amount from the predecessor in title of the defendants and by way of security for the loan advanced, a registered sale deed was executed for the loan amount on 05.05.1953 with a contemporaneous oral agreement that on return of the borrowed sum with interest, the registered re-conveyance deed shall be executed in favour of the plaintiff and even though, the entire amount was repaid, the re-conveyance was not executed and the defendant effected mutation in the revenue records in his favour and therefore, the plaintiff filed a suit for declaration that he is the absolute owner of the property and for permanent injunction. The plaintiff also filed earlier suit O.S.No.557 of 1990 for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit land. In that context, the Hon'ble Supreme Court held that in the earlier suit O.S.557 of 1990, the plaintiff ought to have prayed for the re-conveyance of the sale deed on the ground that entire loan amount was repaid and both the suits were based on the same cause of action, namely the sale deed, dated 05.05.1953 was executed only as a security for the loan availed and the defendant agreed to execute a re-conveyance deed on receipt of the entire loan amount and after any payment of the loan, the defendant refused to execute the re-conveyance and therefore, while filing the 1st suit in O.S.No.557 of 1990, the relief for executing the re-conveyance was available to the plaintiff and without praying for the same, he filed a suit for injunction and thereafter, on the same set of facts and the cause of action filed a subsequent suit and therefore, the subsequent suit was barred under Order 2 Rule 2 CPC.

23.As stated supra, in the present case, the facts are entirely different and considering the pleadings in O.S.No.328 of 2010 and in O.S.No.52 of 2012, at this stage, it cannot be stated that both the suits are arising out of the same cause of action and the plaintiffs omitted to sue the relief of declaration in the earlier suit and that has to be proved only during the trial and therefore, the plaint in O.S.No.52 of 2012 cannot be rejected at the threshold. The observations or findings given in this order were made only for disposing the revision and the court below is directed not to be influenced by such observation or finding while answering the issue whether the suit is barred by Order 2 Rule 2 CPC and shall decide the same on the basis of evidence.

24.In the result, I do not find any merit in the revision petition and accordingly, the same is dismissed.  Consequently, connected Miscellaneous Petition is closed. No costs.

                                          02.04.2013
Index :Yes/No
Internet :Yes/No
er














R.S.RAMANATHAN, J.


er


To,

The Subordinate Judge,
Panruti.





Pre-delivery order
made
CRP(PD)No.3861 of 2012








2.04.2013