In CR-5886-2022-PUNJ HC- Third suit not barred by Order 2 Rule 2 CPC, rules P&H HC after considering that causes of action in all three suits were different
Justice Nidhi Gupta [16-01-2023]

Read Order: Narinder Kumar Gulati v. Ramesh Rani Gulati & Others

Monika Rahar

Chandigarh, February 7, 2023:  Considering that the causes of action in all the three suits were fundamentally dissimilar inasmuch as first suit was for dissolution of the firm, the second was a suit for recovery and by way of third suit, respondents/ plaintiffs were claiming to be 100% exclusive owners of the properties left by late Sh. Kewal Krishan Gulati, the High Court of Punjab and Haryana has held that the third suit was not barred by res judicata under Order 2 Rule 2 CPC. 

"In my view, from a perusal of the above facts it is clear that all the three Civil Suits have been filed on three entirely different causes of action and against three different sets of parties", the Bench of Justice Nidhi Gupta held. 

The present Revision Petition was filed for setting aside the impugned order of the Trial Court dismissing the petitioner's application under Order 7 Rule 11 CPC for rejection of the suit filed by the respondents for being barred by Order 2 Rule 2 CPC. 

Brief facts of the case are that the petitioner was stated to be the adopted son of late Sh. Kewal Krishan Gulati while the plaintiffs (first two respondents herein) were wife and natural-born daughter, respectively, of Sh. Kewal Krishan Gulati. 

The petitioner's counsel argued that the plaintiffs filed two earlier suits wherein the relief claimed was same/similar to the one claimed by them in the present suit, thus, the bar of Order 2 Rule 2 CPC was applicable. It was further submitted that the issues and prayers in all the three Civil Suits were similar and covered by the first two Civil Suits. 

It was also the Counsel's case that the Trial Court was in error in dismissing the petitioner’s application under Order 7 Rule 11 CPC for rejection of the plaint being barred under Order 2 Rule 2 CPC.

After hearing the parties, the Court observed that the first Civil Suit was filed against the present petitioner for declaration to the effect that the partnership Firm concerned was dissolved in 2005 on the death of late Sh. Kewal Krishan Gulati and for rendition of account and partition of movable and immovable properties of the firm.

The Second Civil Suit was filed for recovery of Rs. 64,82,195/- against the Firm and the petitioner and his wife while the third/present Civil Suit was filed by the same plaintiffs against the petitioner, his biological mother and his biological brother.

"Thus, the third/present Civil Suit has been filed for declaration regarding the entire properties of late Sh. Kewal Krishan Gulati", the Bench observed.

By way of present Civil Suit, the Court observed that the respondents/plaintiffs have primarily made three prayers/sought three declarations to the effect that Shri Kewal Krishan Gulati died intestate leaving behind the plaintiffs as his only legal heirs and that the alleged Will was a complete forgery,  fabrication and was never executed by late Shri Kewal Krishan Gulati. 

Secondly, it was claimed that the plaintiffs were the exclusive owners of the properties left by Late Shri Kewal Krishan Gulati and that the petitioner was never adopted by Late Shri Kewal Krishan Gulati and that all the documents  pertaining thereto were illegal and void.

Therefore, the three suits pertained to, 

"As noted above, the first Civil Suit has been filed for declaration to the effect that the firm  stood dissolved; second Civil Suit is a suit for recovery simpliciter; and third/present Civil Suit is for three declarations as aforementioned."

The Bench also added, 

"In my view, from a perusal of the above facts it is clear that all the three Civil Suits have been filed on three entirely different causes of action and against three different sets of parties".

In the opinion of the Court the causes of action in all the three suits were fundamentally dissimilar inasmuch as first suit was for dissolution of the firm, second was a suit for recovery and by way of third suit, the respondents/plaintiffs were claiming to be 100% exclusive owners of the  properties left by late Sh. Kewal Krishan Gulati. 

"Admittedly, in the earlier two Suits, no claim regarding inheritance of property of late Sh. Kewal Krishan Gulati has been made", the Court held. 

Accordingly, it was held that the present suit was not barred by res judicata under Order 2 Rule 2 CPC, therefore, there was no error in the impugned order.