Order 2 Rule 2 CPC | No Bar On Subsequent Suit If Cause Of Action In Both Suits Not Same: J&K High Court
The Jammu and Kashmir and Ladakh High Court has recently observed that a subsequent suit is barred only if the first suit and the second suit are based on the same cause of action under Order 2 Rule 2 of the CPC.Justice Javed Iqbal Wani added that the court should not prematurely dismiss a suit or an application for an interim injunction if there are triable issues and that issues regarding...
The Jammu and Kashmir and Ladakh High Court has recently observed that a subsequent suit is barred only if the first suit and the second suit are based on the same cause of action under Order 2 Rule 2 of the CPC.
Justice Javed Iqbal Wani added that the court should not prematurely dismiss a suit or an application for an interim injunction if there are triable issues and that issues regarding the cause of action should be fully examined during the trial rather than at the threshold of the case.
"The bar to the maintainability the subsequent suit under Order 2 Rule (2) CPC will be attracted only when the first suit would have been based on the same cause of action as the second suit, and that filing of the earlier suit and proving it as per law is imperative to sustain a plea under Order 2 Rule (2) CPC. Thus, the only escapable conclusion drawn from above is that the suit cannot be thrown out at the threshold while invoking the provisions of Order 2 Rule (2) CPC, as has been done in the instant case."
Order 2 Rule 2 mandates that a plaintiff must include their entire claim related to a specific cause of action in one lawsuit. If the plaintiff intentionally or unintentionally omits a part of the claim, they cannot file a separate suit for it without the court's permission. This rule prevents the fragmentation of claims into multiple lawsuits.
Two appeals were brought before the court. In the first appeal, the plaintiff had filed a suit seeking specific performance of a contract, alleging that he had an agreement to purchase a building, Bhagat Building, in Srinagar, based on a registered Power of Attorney. The defendant argued that the plaintiff had knowledge of the revocation of the Power of Attorney and thus the suit should be barred.
The trial court rejected the plaintiff's application for an interim injunction and subsequently dismissed the application. The court justified this by claiming that the plaintiff had failed to demonstrate a prima facie case, balance of convenience, and irreparable loss, as required for an injunction. The plaintiff challenged the trial court's decision, but the appellate court upheld it, emphasizing the importance of exercising judicial discretion.
In the second appeal, the plaintiff had filed a suit for specific performance of a contract seeking the occupation of Bhagat Building based on a registered Power of Attorney executed by the defendant. The defendant argued that the Power of Attorney had been revoked through a registered deed, and this revocation was challenged by the plaintiff in a subsequent suit.
The trial court rejected the plaintiff's suit under Order 2 Rule 2 CPC, asserting that the plaintiff had knowledge of the revocation and failed to challenge it in the first suit. The plaintiff appealed this decision, arguing that the subsequent suit was based on a different cause of action and involved different parties and reliefs.
Upon examination of the pleadings in both suits, Justice Wani emphasised that to establish the bar under Order 2 Rule 2, the defendant must provide evidence of the pleadings in the previous suit, proving the identity of the cause of action in both suits.
The court clarified that mere inferential reasoning was insufficient and the technical bar had to be satisfactorily proven and could not be presumed.
Relying on P.V. Guru Raj Reddy & Anr Vs. P. Neeradha Reddy & Ors (2015(8) SCC 331) the bench highlighted that the power to reject a plaint under Order 7 Rule 11 CPC was drastic and required stringent adherence to legal principles.
While reviewing the records, the bench noted that the plaintiff stated in the subsequent suit that they learned about the revocation of the Power of Attorney after the defendant filed their written statement in the earlier suit. This information constituted the cause of action for the subsequent suit and the plaintiff's claim about the date of knowledge should have been assessed while considering the defendant's application under Order 7 Rule (11) CPC, the bench underscored.
Observing that the issue of the date of knowledge was a matter to be decided in the trial and not at the preliminary stage the court recorded,
“The trial Court ought not to have picked up a few sentences here and there from the plaint and on the basis of the same declared that the plaintiff had the knowledge of revocation of Power of Attorney and rejected the plaint based on such inferential reading”.
Reliance was placed on Gurbux Singh v. Bhooralal (AIR 1964 SC 1810) wherein SC held as follows,
“As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under 0. 2. R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits”.
The court noted that the trial court had relied on selective sentences from the plaintiff's pleadings to infer knowledge of the revocation, and this was not a sufficient basis to reject the suit at the threshold.
As a result, the court allowed the appeals and directed the trial court to proceed with the matter.
Case Title: Shakeel Ahmad Kuchay Vs. Manmohan Lal
Citation: 2023 LiveLaw (JKL) 268
Case No: MA No. 15/2006