Case Note & Summary
The revision application was filed by the original defendant No.1 against the order of the Jt. Civil Judge, Junior Division, Gangapur, dismissing his application under Order II Rule 2 and Order VII Rule 11 CPC. The plaintiff had filed R.C.S. No.404/2013 for possession of 40 R land from Gat No.97 and for removal of obstruction to a way. The defendant contended that the plaintiff had earlier filed R.C.S. No.30/2011 for the same cause of action, which was withdrawn unconditionally, and thus the suit was barred. The trial court rejected the application. The High Court upheld the trial court's order, holding that the earlier suit was for permanent injunction, while the present suit is for possession and removal of obstruction, which are different causes of action. The court noted that the plaint in the earlier suit did not mention the cause of action for possession or removal of obstruction. Therefore, the bar under Order II Rule 2 CPC does not apply, and the plaint cannot be rejected under Order VII Rule 11 CPC. The revision was dismissed.
Headnote
A) Civil Procedure - Order VII Rule 11 - Rejection of Plaint - Bar under Order II Rule 2 - The court considered whether the plaint should be rejected under Order VII Rule 11 read with Order II Rule 2 CPC on the ground that the plaintiff had earlier filed a suit for the same cause of action and withdrawn it unconditionally. The court held that the earlier suit was for a different cause of action (permanent injunction) and the present suit is for possession and removal of obstruction, hence the bar does not apply. (Paras 1-6)
B) Civil Procedure - Order II Rule 2 - Withdrawal of Suit - Subsequent Suit - The court examined the scope of Order II Rule 2 CPC and held that the bar applies only when the subsequent suit is based on the same cause of action as the earlier suit. Since the earlier suit was for permanent injunction and the present suit is for possession and removal of obstruction, the causes of action are distinct. (Paras 3-6)
Issue of Consideration
Whether the suit is barred under Order II Rule 2 and Order VII Rule 11 CPC due to earlier withdrawal of a suit for the same cause of action.
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order rejecting the defendant's application under Order II Rule 2 and Order VII Rule 11 CPC.
Law Points
- Order II Rule 2 CPC
- Order VII Rule 11 CPC
- Bar on subsequent suit
- Withdrawal of suit without liberty
- Cause of action
Case Details
2015 LawText (BOM) (02) 172
Civil Revision Application No.150 of 2014
Shri A.M. Nagarkar for applicant; Ms. Swati Nakhate holding for Ms. Mansi P. Joshi for respondent No.1
Sayyed Noor s/o Sayyed Burhan
Sayyed Minya s/o Sayyed Burhan and others
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Nature of Litigation
Civil revision against rejection of application under Order II Rule 2 and Order VII Rule 11 CPC in a suit for possession and removal of obstruction.
Remedy Sought
Defendant sought dismissal of the suit on the ground that it was barred by earlier withdrawal of a suit for the same cause of action.
Filing Reason
Defendant claimed that the plaintiff had earlier filed R.C.S. No.30/2011 for the same cause of action and withdrew it unconditionally, barring the present suit.
Previous Decisions
The trial court dismissed the defendant's application under Order II Rule 2 and Order VII Rule 11 CPC.
Issues
Whether the suit is barred under Order II Rule 2 CPC due to earlier withdrawal of a suit for the same cause of action.
Whether the plaint is liable to be rejected under Order VII Rule 11 CPC.
Submissions/Arguments
Defendant argued that the plaintiff had earlier filed R.C.S. No.30/2011 for the same cause of action and withdrew it unconditionally, so the present suit is barred under Order II Rule 2 CPC.
Plaintiff contended that the earlier suit was for permanent injunction, while the present suit is for possession and removal of obstruction, which are different causes of action.
Ratio Decidendi
The bar under Order II Rule 2 CPC applies only when the subsequent suit is based on the same cause of action as the earlier suit. Since the earlier suit was for permanent injunction and the present suit is for possession and removal of obstruction, the causes of action are distinct, and the suit is not barred.
Judgment Excerpts
The plaint filed as R.C.S. No.404/2013 before the Civil Judge, Junior Division, Gangapur is for possession of 40 R land from Gat No.97, situated at Jogeshwari, Taluka Gangapur and for removing the obstruction to way of 20 ft. x 600 ft.
The defendant filed application Exhibit 16 in the suit, claiming that in view of provisions of Order II Rule 2 and Order VII Rule 11 of the Code of Civil Procedure, the suit deserved to be dismissed as there was earlier R.C.S. No.30/2011 filed by plaintiff for the same cause of action and which suit had been withdrawn unconditionally and so the suit was barred.
Procedural History
The plaintiff filed R.C.S. No.404/2013 for possession and removal of obstruction. The defendant filed application Exhibit 16 under Order II Rule 2 and Order VII Rule 11 CPC, which was dismissed by the Jt. Civil Judge, Junior Division, Gangapur. The defendant then filed the present civil revision application in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order II Rule 2, Order VII Rule 11
