In Civil Revision No. 7483 of 2016-PUNJ HC- Order II Rule 2 CPC does not provide that if plaintiff is entitled to claim relief in first suit, then subsequent suit shall be barred under such provision: P&H HC Justice Anil Kshetarpal [21-07-2022]

Read Order: Balbir Singh and Another v. Ravinder Singh and Others

Monika Rahar

Chandigarh, July 29, 2022:  The High Court of Punjab and Haryana has recently held that the bar to maintainability of the subsequent suit under Order II Rule 2 CPC will be applicable only if the previous suit was based on the same cause of action and Order II Rule 2 CPC does not provide that if the plaintiff is entitled to claim the relief in the first suit, then the subsequent suit shall be barred under Order II Rule 2 CPC. 

Further, the Bench of Justice Anil Kshetarpal also asserted,  “… the bar under Order II Rule 2 CPC shall have to be examined by the Court after the parties are granted an opportunity to lead the evidence.”

Essentially, the now petitioner-plaintiff filed a suit in 2012 for declaration to the effect that the various sale deeds executed and registered in favour of the defendants were illegal, null and void. The plaintiff also prayed for decree of permanent injunction. 

The entire basis of the suit of the plaintiff was an agreement to sell executed by the fifth defendant in 2010 agreeing to sell the suit property. As per the agreement to sell, the parties agreed to execute the sale deed on June 14, 2012. 

The plaintiff filed an application for permission to amend the plaint so as to incorporate the relief of specific performance of the agreement to sell for which the cause of action accrued on June 14, 2012. 

The trial Court dismissed the application on the ground that such an amendment is barred under Order II Rule 2 of the CPC.

After considering the case of the petitioner, the Court opined at the very outset that the impugned order is not sustainable. 

On the legal principles governing Order II Rule 2 CPC, the Court observed that the bar to maintainability of the subsequent suit under Order II Rule 2 CPC will be applicable only if the previous suit was based on the same cause of action and a cause of action is constituted by a bundle of facts. 

“Order II Rule 2 CPC does not provide that if the plaintiff is entitled to claim the relief in the first suit, then the subsequent suit shall be barred under Order II Rule 2 CPC”, held Justice Kshetarpal while also adding that the bar under Order II Rule 2 CPC shall have to be examined by the Court after the parties are granted an opportunity to lead the evidence. 

Further, it was also held that when the suit is at a preliminary stage, it is considered inappropriate for the trial Court to dismiss the application for permission to amend the plaint by applying Order II Rule 2 CPC. 

“Further, Order II Rule 2 CPC is a penal provision which must be strictly construed. It is debatable “as to whether Order II Rule 2 CPC will be applicable in the same suit or not?””, the Court held. 

Keeping in view the aforesaid facts, the present revision petition was allowed and the Order, under challenge, was set aside while allowing the plaintiff to amend the plaint. 

Also, the Court directed the trial Court to proceed with the suit forth with, subject to payment of Rs 5,000 as costs, after the amended petition was filed.