2026 INSC 372

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3624 OF 2024

S. VALLIAMMAI & O THERS …APPELLANTS

VERSUS

S. RAMANATHAN & ANOTHER …RESPONDENTS

J U D G M E N T

NAGARATHNA, J.

The appellants herein are aggrieved by the impugned order

dated 11.07.2019 passed by the High Court of Judicature at

Madras in C.R.P.(PD) No.4472 of 2013 whereby the Civil Revision

Petition filed by the respondents herein was allowed and the order

dated 24.06.2013 passed by the VIth Assistant Judge, City Civil

Court, Chennai (hereinafter referred to as “trial court”) in O.S.

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No.2320 of 2013 (hereinafter called the ‘second suit’ for the sake of

convenience) was set aside. Consequently, the plaint in the second

suit was rejected. The trial court, by the said order, had rejected

I.A. No.7712/2013 filed by the respondents under Order VII Rule

11 of the Code of Civil Procedure, 1908 (hereinafter referred to as

“Code”) and allowed I.A. No.6381/2013 filed by the appellants

herein under Order XXXIX Rules 1 and 2 of the Code.

1.1 For the sake of convenience, the parties shall be referred to

in terms of their status and position before the trial court in O.S.

No.2320 of 2013 (the second suit).

1.2 Briefly stated, the facts of the case are that Late Shri M.

Sokkalingam (“original owner”) and his wife S Valliammai -

appellant No.1 herein (hereinafter referred to as plaintiff No.1)

entered into a partition of family properties by way of oral

settlement dated 01.11.2011 with their children, i.e., two

daughters namely Meena – appellant No.2 herein (hereinafter

referred to as plaintiff No.2) and Muthumeena – appellant No.3

herein (hereinafter referred to as “plaintiff No.3”) and son namely,

S. Ramanathan - respondent No.1 herein (hereinafter referred to

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as defendant No.1). According to the oral settlement, plaintiff Nos.2

and 3 received Rs.9,00,00,000/- (Rupees Nine Crores) each

through cheques and executed deeds dated 02.11.2011 ,

relinquishing their share in the properties in favour of their

brother-defendant No.1.

1.3 Thereafter on 04.11.2011, the original owner executed a

registered Power of Attorney bearing Document No.724 of 2011 in

favour of Shri E.J. Ayyappan - respondent No.2 herein (herein

referred to as “defendant No.2”), with respect to the following

properties:

i) Regent Place bearing R.S. No.3907/2A, Survey No.C-263 (part)

New Survey No.43 situated in Ward E, Block No.6,

admeasuring 1 acre 56 cents, situated at 374, 375 and 376,

Peyton Road, Opposite Ratan Tata Officer’s Home,

Ootacamund, Nilgiris (“Ooty (Nilgiris) property”, for the sake of

convenience) (Schedule ‘A’ Property).

ii) Vacant land situated at Door No.1/29, Rayavaram Main Road,

(Kadiyapatti village), Ramachandrapuram, Panangudi ,

Vettam, Thirumayam Taluk, Pudukottai District, comprised in

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Old Survey No.177 (Natham) New Survey No.90/11

(“Pudukottai property”, for the sake of convenience) (Schedule

‘B’ Property)

1.4 Pursuant thereto, settlement deeds dated 09.11.2011 and

10.11.2011 with respect to the aforesaid properties were executed

in favour of defendant No.1 by defendant No.2, as the power of

attorney of the original owner.

1.5 Subsequently, on 30.07.2012, plaintiff No.1 and the original

owner instituted O.S. No.4722 of 2012 (‘first suit’) before the VIIth

Assistant Judge, City Civil Court, Chennai against defendant No.1

(in the second suit), seeking the relief of permanent injunction and

peaceful possession and enjoyment of:

i) property situated at Old Door No.23, Harrington Avenue,

subsequently at Door No.48, fifth avenue and presently Door

No.2, fifth avenue, Harrington road, Chetpet, Chennai-600031

(“Chennai property”, for the sake of convenience) (“Schedule

‘A’” therein); and

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ii) operation of the cash deposits, stocks, shared, debentures,

mutual fund deposit etc lying in A/c No.axcess plus

42710180701, 42710180698, 42705092018 with Standard

Chartered Bank, No.1, Rajaji Salai, Parrys, Chennai-600104

(“Schedule ‘B’” therein).

1.6 In the aforesaid suit, it was alleged that defendant No.1, by

intimidating the original owner as well as plaintiff No.1 in the

second suit and by exploiting their emotions, forced them to

execute some documents on 04.11.2011. Further, defendant No.1

compelled them to execute the settlement deed dated 04.11.2011,

settling the property described in Schedule ‘A’ therein to the son of

defendant No.1 after reserving life interest for plaintiff No.1.

1.7 During the pendency of the aforesaid first suit, the original

owner, M. Sokkalingam, passed away on 13.03.2013.

1.8 Subsequently, the appellant-plaintiffs herein (wife and the

daughters of plaintiff No.1 in the first suit) instituted O.S. No.2320

of 2013 (“second suit”) on 08.04.2013 before the trial court, seeking

a declaration that the Power of Attorney dated 04.11.2011 ,

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registered as Doc. No.724/2011 was illegal, null and void, and the

same was obtained by sheer misrepresentation, coercion, fraud

and undue influence together with all consequential acts and

deeds if any made on the strength of the power of attorney dated

04.11.2011 and for permanent injunction restraining the

defendant, his men, agents and servan ts from alienating the

Schedules ‘A’ and ‘B’ properties. Further, the plaintiffs also filed

I.A. No.6381/2013 under Order XXXIX Rules 1 and 2 of the Code

seeking an interim injunction, restraining the defendants from

alienating or encumbering the suit properties pending disposal of

the suit.

1.9 Subsequently, the respondent-defendants preferred I.A.

No.7712 of 2013 in the second suit under Order VII Rule 11 of the

Code seeking rejection of the plaint by contending that the said suit

was barred under Order II Rule 2 of the Code.

1.10 The trial court by common order dated 24.06.2013,

dismissed I.A. No.7712/2013 filed by the defendants being not

maintainable and allowed I.A. No.6381/2013 filed by the plaintiff,

granting temporary injunction against the defendants restraining

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alienation and encumbrance of the suit properties pending

disposal of the suit. It was held that the second suit was not barred

on account of Order II Rule 2 of the Code as the causes of action

and properties involved in the two suits were distinct and separate

and that the plaintiffs came to know about the General Power of

Attorney only after the written statement was filed by the defendant

No.1 in the first suit and at that juncture, the cause of action arose.

The trial court further doubted the manner in which the suit

properties had been settled through a third party i.e., defendant

No.2.

1.11 Being aggrieved, the defendants preferred C.R.P.(PD)

No.4472 of 2013 before the Madras High Court. By way of

impugned order dated 11.07.2019, the High Court allowed the

revision petition filed by the defendants and set aside the Trial

Court’s order in O.S. No.2320 of 2013 and thereby rejected the

plaint under Order VII Rule 11 of the Code. The Court observed

that upon perusal of the plaint in O.S. No.4722/2012, it was

apparent that the plaintiffs were aware of the execution of the

Power of Attorney dated 04.11.2011. It was further observed that

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the cause of action for both the suits was one and the same and

that the plaintiffs were parties and privy to all the events, including

the oral settlement and subsequent execution of the Power of

Attorney. It was further held that the trial court deviated from its

jurisdiction by going into the aspect of why and for what purpose

the Power of Attorney was executed, brushing aside the fact that

the plaintiff Nos.2 and 3 were witnesses to the said document. The

High Court expressed that the trial court did not appreciate the

fact that plaintiff No.2 herself wrote a letter requesting the Sub-

Registrar, Periamet, to undertake a home visit to register the Power

of Attorney in favour of defendant No.2, and therefore she

subsequently could not be allowed to take a contradictory stand to

contend that she came to know about the Power of Attorney only

after filing of the written statement by defendant No.1 in the first

suit.

1.12 Being aggrieved, the appellants have preferred the present

civil appeal.

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2. Before proceeding further, it is necessary to distill the

averments of the plaint in O.S. No.4722 of 2012 which is the first

suit and O.S. No.2320 of 2013 which is the second suit.

Averments of Plaint in O.S. No.4722 of 2012 (First Suit):

2.1 The plaintiffs in the said suit are the parents of the defendant

therein (defendant No.1 in the second suit). They averred that they

are residing at Door No.2, Vth Avenue, Harrington Road, Chennai-

600031; the property more fully described in Schedule ‘A’

thereunder which is the absolute property of plaintiff No.1 and he

is in continuous possession and enjoyment of the same. The

plaintiffs have three children, namely, two daughters and

defendant-son who is an advocate. The plaintiffs were residing in

Schedule ‘A’ property and their daughters are married and settled

in USA.

2.1.1 That their defendant-son had been insisting the plaintiffs to

part with all their properties including properties mentioned in

Schedules ‘A’ and ‘B’.

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2.1.2 That plaintiff No.2 was sick and bedridden most of the times

and the plaintiffs are helpless as they have to live in constant fear

and anxiety because of the intimidating tactics of the defendant

who was none other than their son. That the plaintiff No.2 has

several ailments and suffered from disorientation and had suffered

a heart attack in the month of July 2011 and was also hospitalized.

Instead of attending to his parents, the defendant - son has been

insisting on the plaintiffs parting with their properties. On

24.08.2011, the defendant physically assaulted and verbally

abused plaintiff No.2 for not settling the property on him.

2.1.3 That owing to the intimidation of the defendant, plaintiff

No.2 was forced to execute some documents on 04.11.2011 when

the Registrar took the thumb impression of the plaintiff No.2 on a

settlement deed dated 04.11.2011 settling Schedule ‘A’ property in

favour of defendant - son after reserving life interest in the said

property for plaintiff No.1. The defendant has also taken away the

original title deeds and documents from the house of the plaintiffs.

2.1.4 Further, the plaintiffs had valuable shares and securities

which they had liquidated and divided the amount by giving their

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two daughters a lesser amount as compared to the defendant-son

and a small balance was deposited in the bank account of plaintiff

No.1 for the last stages of their life. The plaintiffs are residing in

Schedule ‘A’ property therein and they do not have any

independent source of income except the interest income from the

bank account more fully described as Schedule ‘B’ in the plaint.

2.1.5 That the defendant was pestering the plaintiffs to change

the Schedule ‘B’ account into a joint account by including him as

a joint account holder along with the plaintiffs which the plaintiffs

were not willing to do so. That the plaintiffs were a respectable

family from Chettinad and therefore had not lodged any police

complaint.

2.1.6 It was also averred that the greed of the defendant had not

been satisfied with the settlement deed executed by compelling

plaintiff No.1 to part with properties such as 1.5 acres of land in

Ooty with the Bungalow and several valuable properties at

Pudukottai District belonging to plaintiff No.2. Hence, he was now

eyeing the bank account. That on 23.07.2012, the defendant

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demanded plaintiff No.1 to include his name also in the bank

account.

2.1.7 The defendant was living in his own house at Mylapore and

the plaintiffs were residing in the Schedule ‘A’ property and even

according to the settlement deed dated 04.11.2011, plaintiff No.1

was entitled for life interest over the said property. However, the

defendant frequently visited the plaintiffs and bothered them

mentally affecting their peace and coming in the way of their

enjoyment of their property.

2.1.8 The cause of action arose when the defendant demanded

his parents to part with all their properties and a settlement deed

was executed on 04.11.2011 and later on 23.07.2012 when the

defendant came to the house and demanded the plaintiff to convert

the bank account into a joint account. Plaintiffs were entirely

dependent upon the interest yield from the bank account and the

plaintiffs were in constant fear of the defendant.

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2.1.9 The plaintiffs sought the following reliefs (in the first suit):

a) Permanent injunction restraining the defendant, his men,

agents and servants from interfering with the plaintiffs

peaceful possession and enjoyment of the Schedule ‘A’

mentioned property;

b) Permanent injunction restraining the defendant, his men,

agents and servants from interfering with operation of

Schedule ‘B’ bank account;

c) Permanent injunction restraining the defendant against

exercising any undue influence, coercion, threat, blackmailing

against the plaintiff for transfer or opening of joint bank

account in respect of Schedule ‘B’ bank account;

d) To pay the cost of this suit; and

e) Grant such other relief the Court may deem fit and proper in

the circumstances of this case.

Averments in O.S. No.2320 of 2013 (Second Suit):

3. This suit has been filed by the widow of late M. Sokkalingam

as plaintiff No.1 and their two daughters as plaintiff Nos.2 and 3

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against defendant No.1 who is the son of late M. Sokkalingam and

defendant No.2 who is his power of attorney holder.

3.1 According to the plaintiffs, M. Sokkalingam died intestate on

13.03.2013 leaving the plaintiffs and defendant No.1 to jointly

inherit the properties. Defendant No.2 was the friend of defendant

No.1 who has acted as the power agent of late M. Sokkalingam

under an illegal and invalid power of attorney deed dated

04.11.2011 which is challenged.

3.2 That M. Sokkalingam had heart and kidney ailments and was

suffering from diabetes and other ailments. He had undergone

knee and heart surgeries and had been hospitalized for a number

of months and was in altered state of consciousness from mid 2010

to February, 2012. Often he would be disoriented and later gain

his consciousness after some interval. Around October 2011 to

December, 2011, the problem became acute when he had altered

levels of consciousness for two to three months. He was

hospitalized in the month of July 2011 due to heart attack. That

late M. Sokkalingam and plaintiff No.1 were residing at Door No.2,

Vth Avenue, Harrington Road, Chennai–600031 and plaintiff Nos.2

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and 3, being their daughters were married and settled in the United

States of America and they used to visit their parents now and

then. Defendant No.1, who is the son, has been greedy and money-

minded and insisted plaintiff No.1 and her husband to part with

all the properties to the exclusion of his two sisters. Defendant No.1

has been adopting a hostile attitude and tactics to take control of

all the properties of his father by blackmailing and threatening that

he would commit suicide if all the properties were not conveyed to

him. That plaintiff No.1 and her husband were stripped of all their

moveable and immoveable properties except the amount lying in

the bank account of plaintiff No.1 in Standard Chartered Bank,

Chennai. That defendant No.1 was continuously pestering plaintiff

No.1 and her husband to convert the said bank account into a joint

bank account by including his name and by frequently calling the

officials of the Standard Chartered Bank by giving unnecessary

instructions to convert the bank account into a joint account but

the account holders being the parents of defendant No.1 were not

willing to do so. Hence, they filed O.S. No.4722 of 2012 (first suit)

on the file of the VIIth Assistant City Civil Court, Chennai seeking

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the relief for permanent injunction against defendant No.1 from

interfering with their possession of the property and the bank

account. The said suit is still pending. That the parents of

defendant No.1 had to live in constant fear and anxiety because of

the intimidating tactics of defendant No.1 who is none other than

their own son.

3.3 That plaintiff No.1 is a heart patient and her husband was

also a heart patient and defendant No.1, instead of lending any

help and being of solace to them was insisting on them for parting

with their properties. That on one occasion dated 24.08.2011,

defendant No.1 came home at around 08:00 PM and physically

assaulted and verbally abused the handicappe d father for not

settling the properties on him. Considering the reputation of the

family, no criminal complaint was lodged. That defendant No.1 by

intimidating plaintiff No.1 and her husband (M. Sokkalingam)

forced them to execute some documents on 04.11.2011 when he r

husband was in a semi-conscious state of mind. The Registrar was

brought to the house and the thumb impression of M. Sokkalingam

was obtained by force. He was thus compelled to execute the

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settlement deed dated 04.11.2011 setting the property described

in Schedule ‘A’ in the said plaint to the defendant after reserving

the life interest for the plaintiff No.1. Defendant No.1 has also taken

away all the original title deeds and documents of the Schedule

mentioned properties from the house of the plaintiffs even earlier.

3.4 That on 04.11.2011, defendant No.1 got the thumb

impression of M. Sokkalingam without his knowledge on various

papers and the signatures of the plaintiff Nos. 2 and 3 were also

obtained on various papers as witnesses to the documents in which

thumb impression of M. Sokkalingam were obtained by force, fraud

and without his knowledge since at that time he was in a semi-

conscious state of mind. That the rude behaviour and inexorable

greed of defendant No.1 prompted plaintiff No.1 and her husband

to file the suit i.e. O.S. No.4722 of 2012 (first suit) to allay their

immediate apprehension. That M. Sokkalingam made an inquiry

with the help of plaintiff Nos.2 and 3 herein in the Registrar’s office

about any document alleged to have been executed by him on

04.11.2011, when the Registrar visited the house of plaintiff No.1

for the purpose of the execution of the settlement deed. It is to the

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utter shock and dismay the power of attorney dated 04.11.2011,

bearing Document No.724 of 2011 on the file of Sub-Registrar’s

office (SRO), Periamet in favour of defendant No.2 was brought to

his notice. M. Sokkalingam had instructed his counsel to prepare

the case to declare the power of attorney dated 04.11.2011 on the

file of SRO, Periamet as invalid but before the suit could be

instituted he died.

3.5 That defendant No.1 was not invited by his father (M.

Sokkalingam) for his 80

th birthday and his father wanted his wife

to perform his last rites but defendant No.1 ultimately performed

his last rites.

3.6 Defendant No.2 was stated to be appointed as the power agent

of M. Sokkalingam to execute the settlement deed in favour of

defendant No.1. That, M. Sokkalingam during the said period was

in a semi-conscious state of mind and defendant No.1 had

threatened and coerced all the family members to put signature on

the documents. That M. Sokkalingam never intended to settle the

Schedules ‘A’ and ‘B’ properties upon defendant No.1 as the

relationship between them was not cordial; rather was very much

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strained. That the father was beaten by his son-defendant No.1 and

there was no love and affection between them.

3.7 That, M. Sokkalingam was a reputed member of the Chettiar

Community having trustworthy friends and relatives and there was

no occasion for him to choose defendant No.2, who is an advocate

and friend of defendant No.1 as the power agent for the execution

of the settlement deed. If at all, any such document had to be

executed by M. Sokkalingam, it would have been done so at

Chennai by appointing power agent to present the settlement deed

for registration. That the power of attorney dated 04.11.2011,

bearing Document No.724 of 2011 on the file of SRO, Periamet is

per se illegal and void and the same was executed by fraud,

coercion and further as the executant at the time of the execution

was not in a sound state of mind. Therefore, any consequential act

on the strength of the said power of attorney is also illegal and

invalid. That defendant No.1 is not entitled to have any absolute

right over the suit properties.

3.8 That the cause of action for the suit arose when M.

Sokkalingam died intestate on 13.03.2013 leaving the plaintiffs

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and the defendant No.1 to jointly inherit the properties. On

04.11.2011, when M. Sokkalingam was in a semi-conscious state

of mind, was compelled to put his thumb impression on some

documents. Hence, the plaintiffs sought following reliefs:

a) Declare the Power of Attorney deed dated 04.11.2011

registered as Doc. No.724 of 2011 on the file of SRO, Periamet,

Chennai–600003 as illegal, null and void and the same is

obtained by sheer misrepresentation, coercion, fraud and

undue influence together with all consequential acts and deeds

if any made on the strength of the power of attorney dated

04.11.2011;

b) Permanent injunction restraining the defendant, his men,

agents and servants from alienating the Schedules ‘A’ and ‘B’

properties;

c) Grant such other relief as deemed fit and proper under the

circumstances of the case; and

d) To pay the cost of the suit.

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Order VII Rule 11 of the Code:

4. Since the issue in this appeal pertains to the correctness or

otherwise of the impugned order granting rejection of the plaint, at

this stage, we deem it necessary to extract Order VII Rules 11 and

13 of the Code which deal with the grounds for rejection of a plaint,

as under:

“11. Rejection of plaint. - The plaint shall be rejected in

the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the

plaintiff, on being required by the Court to correct the

valuation within a time to be fixed by the Court, fails

to do so;

(c) where the relief claimed is properly valued, but the

plaint is written upon paper insufficiently stamped,

and the plaintiff, on being required by the Court to

supply the requisite stamp-paper within a time to be

fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the

plaint to be barred by any law:

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provision of

rule 9:

Provided that the time fixed by the Court for the

correction of the valuation or supplying of the requisite

stamp-paper shall not be extended unless the Court,

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for reasons to be recorded, is satisfied that the plaintiff

was prevented by any cause of an exceptional nature

for correcting the valuation or supplying the requisite

stamp-paper, as the case may be, within the time fixed

by the Court and that refusal to extend such time

would cause grave injustice to the plaintiff.

xxx xxx xxx

13. Where rejection of plaint does not preclude

presentation of fresh plaint.—The rejection of the plaint

on any of the grounds hereinbefore mentioned shall not of

its own force preclude the plaintiff from presenting a fresh

plaint in respect of the same cause of action.”

4.1 In the instant case, an application was filed under Order VII

Rule 11(d) of the Code where the ground of rejection of the plaint

was that the suit appears from the statement in the plaint to be

barred by any law. In this regard, various decisions of this Court

with regard to rejection of plaint under Order VII Rule 11 of the

Code could be discussed as follows:

a) In T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467,

this Court while examining the aforesaid provision held that

the trial court must remember that if on a meaningful and not

a formal reading of the plaint it is manifestly vexatious and

meritless in the sense of not disclosing a clear right to sue, it

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should exercise the power under Order VII Rule 11 of the Code

taking care to see that the ground mentioned therein is

fulfilled. If clever drafting has created the illusion of a cause of

action, it has to be nipped in the bud at the first hearing by

examining the party searchingly under Order X of the Code.

b) The object of the said provision was laid down by this Court in

Sopan Sukhdeo Sable vs. Assistant Charity

Commissioner, (2004) 3 SCC 137. Similarly, in Popat and

Kotecha Property vs. State Bank of India Staff

Association, (2005) 7 SCC 510, this Court has culled out the

legal ambit of Order VII Rule 11 of the Code.

c) It is trite law that not any particular plea has to be considered,

but the whole plaint has to be read. As was observed by this

Court in Roop Lal Sathi vs. Nachhattar Singh Gill, (1982)

3 SCC 487, only a part of the plaint cannot be rejected and if

no cause of action is disclosed, the plaint as a whole must be

rejected. Similarly, in Raptakos Brett & Co. Ltd. vs. Ganesh

Property, (1998) 7 SCC 184, it was observed that the

averments in the plaint as a whole have to be seen to find out

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whether clause (d) of Order VII Rule 11 of the Code is

applicable.

d) It was further held with reference to Order VII Rule 11 of the

Code in Saleem Bhai vs. State of Maharashtra, (2003) 1

SCC 557 that the relevant facts which need to be looked into

for deciding an application thereunder are the averments in

the plaint. The trial court can exercise the power at any stage

of the suit i.e. before registering the plaint or after issuing

summons to the defendant at any time before the conclusion

of the trial. For the purposes of deciding an application under

clauses (a) and (d) of Order VII Rule 11 of the Code, the

averments in the plaint are germane and the pleas taken by

the defendant in the written statement would be wholly

irrelevant at that stage.

e) In R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275, it was

reiterated that the only restriction was that the consideration

of the application for rejection should not be on the basis of

the allegations made by the defendant in his written statement

or on the basis of the allegations in the application for rejection

25

of the plaint. The court has to consider only the plaint as a

whole and in case the entire plaint comes under the situations

covered by Order VII Rules 11(a) to (f) of the Code, the same

has to be rejected.

f) In Kuldeep Singh Pathania vs. Bikram Singh Jaryal,

(2017) 5 SCC 345, this Court observed that the court can only

see whether the plaint, or rather the pleadings of the plaintiff,

constitute a cause of action. Pleadings in the sense where, even

after the stage of written statement, if there is a replication

filed, in a given situation the same also can be looked into to

see whether there is any admission on the part of the plaintiff.

In other words, under Order VII Rule 11 of the Code, the court

has to take a decision looking at the pleadings of the plaintiff

only and not on the rebuttal made by the defendant or any

other materials produced by the defendant.

g) In an application under Order VII Rule 11 of

the Code, a plaint cannot be rejected in part. This principle is

well established and has been continuously followed since the

1936 decision in Maqsud Ahmad vs. Mathra Datt & Co. AIR

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1936 Lah 1021. This principle is also explained in another

decision of this Court in Sejal Glass Ltd. vs. Navilan

Merchants Private Ltd., (2018) 11 SCC 780 which was again

followed in Madhav Prasad Aggarwal vs. Axis Bank Ltd.,

(2019) 7 SCC 158.

h) In Sri Biswanath Banik vs. Sulanga Bose, (2022) 7 SCC

731, this Court discussed the issue regarding the suit being

barred by limitation or not and observed that at that stage,

what is required to be considered are the averments in the

plaint. Only in a case where on the face of the plaint, it is seen

that the suit is barred by limitation, then and only then a plaint

can be rejected under Order VII Rule 11(d) of the Code on the

ground of limitation. At that stage what is required to be

considered is the averments in the plaint. For the aforesaid

purpose, the Court has to consider and read the averments in

the plaint as a whole.

Order II Rules 1 and 2 of the Code:

5. Order II Rules 1 and 2 of the Code are extracted as under:

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“Order II – Frame of Suit: -

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.

Explanation.— For the purposes of this rule an obligation

and a collateral security for its performance and

successive claims arising under the same obligation shall

be deemed respectively to constitute but one cause of

action.”

5.1 Order II of the Code deals with frame of suit. Order II Rule 1

states that 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. Thus, the

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fundamental aim of Order II Rule 1 is to avoid multiple suits which

may be founded on the same cause of action or may be relating to

the same subject-matter. Similarly, Order II Rule 2 of the Code

elaborates the objective of Order II Rule 1 thereof by stating the

suit to include the whole claim and deals with the consequences of

relinquishment of a part of claim and omission to sue for one of

several reliefs. The object of Order II Rule 2 is also to avoid

multiplicity of suits. This is because the litigant who does not

include all the grounds available to him on the subject in dispute

in one suit and institutes several suits against the same parties on

the same subject in dispute, would abuse the process of the Court.

5.2 The difference between Order II Rule 1 and Order II Rule 2 of

the Code is, that in Order II Rule 1, the phrase used is “subjects in

dispute” whereas in Order II Rule 2, the phrase used is “cause of

action”. Secondly, Order II Rule 2 provides that failure of a plaintiff

to abide by the mandate of the said Rule results in the plaintiff

being debarred from instituting a fresh suit for that claim.

However, Rule 1 does not provide for the consequences that will

result for non-compliance except possibly under Order VII Rule

29

1(a). Thus, under Order II Rule 2, the bar is with regard to the right

to sue in the context of relinquishment of a part of the claim and

omission to sue for one of several reliefs [Order II Rule 2 (sub-rules

(2) and (3)].

5.3 Where a person is entitled to more than one relief in respect

of the same cause of action, he may sue for all the reliefs or he may

sue for one or more of them and reserve his right with the leave of

the court to sue for the rest. It is only when more than one relief is

claimed under a particular cause of action sued on, that the

plaintiff can reserve one or some of them with the leave of the court.

5.4 It is for the defendant who raises the plea of bar under Order

II Rule 2 of the Code to establish that:

(i) the subsequent suit was in respect of the same cause of action

on which the earlier suit was based;

(ii) in respect of such a cause of action the plaintiff was entitled to

more than one relief; and

(iii) without the leave of the court he had omitted to claim such a

relief in the earlier suit, claimed by him thereafter in the

30

subsequent suit [B. Shambumal vs. State Bank of Mysore,

AIR 1971 Mys. 156].

However, if the right to relief in respect of which a further suit

is brought did not exist at the date of institution of the former suit,

the subsequent suit is not barred [State of Uttar Pradesh vs.

Mool Chand, AIR 1972 All. 413].

5.5 While filing the first suit, if the plaintiff reserves his right with

the leave of the court to sue for the rest of the reliefs then he can

file a second suit for the remaining reliefs. On the other hand, if no

such leave is obtained, he will be precluded from afterwards suing

for any relief so omitted. Certain judgments of this Court could be

referred to only in the context of rejection of the plaint under Order

VII Rule 11(d) of the Code later as the controversy in the present

case is in the above context.

5.6 Order II Rule 2 of the Code deals with the reliefs sought in a

suit by the plaintiff in respect of a cause of action. Order II Rule

2(1) thereof states that 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

31

order to bring the suit within the jurisdiction of any court. Order II

Rule 2(2) of the Code states that 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. Order II Rule 2(3) of the Code states that 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, to sue

for all such reliefs, except with the leave of the court, he shall not

afterwards sue for any relief so omitted.

5.7 The expression “same cause of action” is significant. On the

basis of a cause of action, if a plaintiff is entitled to several reliefs

but he omits to sue for all such reliefs, he is forbidden to sue for

such relief unless he has reserved his right to sue thereafter by a

separate suit. The object of Order II Rule 2 of the Code is based on

the principle that the defendants should not be vexed twice for the

same cause of action which is a principle akin to the principle of

res judicata. Therefore, there cannot be splitting of claims and

splitting of remedies which arise on the same cause of action.

Secondly, the principle applies between the same parties.

32

Therefore, the test is the identity of cause of action for the principle

under Order II Rule 2 of the Code to be applied. If a cause of action

enables the person to ask for larger and wider reliefs and if the

plaintiff limits his claim, then subsequently, he cannot seek the

remaining reliefs by filing fresh proceedings.

5.8 However, it is necessary to bear in mind that it is not

incumbent that the suit should include all the reliefs even though

the cause of action has not arisen for seeking certain reliefs

inasmuch as a suit may be filed for an appropriate relief and if a

subsequent cause of action arises additional reliefs could be

sought by filing a subsequent suit. Thus, in order to apply Order II

Rule 2 of the Code, the earlier suit should have been founded on

the same cause of action on which the subsequent suit is based

and if, in the earlier suit, the plaintiff had omitted to sue in respect

of or intentionally relinquished any portion of his claim, he will not

subsequently be entitled to sue in respect of the portion of his claim

so omitted or relinquished.

5.9 The tests for determining whether Order II Rule 2 of the Code

would apply in a particular case is, whether, the relief sought in

33

the second suit or the subsequent suit is, in fact, founded upon a

cause of action distinct from that which was the foundation for the

former suit. If the answer to this question is in the affirmative, then

the bar under Order II Rule 2 of the Code would not apply.

Therefore, if there are different causes of action arising even out of

the same transaction, the plaintiff is not obliged to bring a suit with

regard to all of them. Similarly, when the cause of action on the

basis of which the earlier suit was brought, does not form the

foundation for the subsequent suit and in the earlier suit, the relief

sought in the subsequent suit could not have been claimed, then,

the subsequent suit is not barred. Thus, the applicability of the bar

under Order II Rule 2 of the Code revolves on the meaning to be

given to the expression ‘cause of action’.

5.10 In Mohammad Khalil Khan vs. Mahbub Ali Mian, 1948

SCC OnLine PC 44 (“Mohammad Khalil Khan ”), the Privy

Council noted that the expression ‘cause of action’ has not been

legislatively defined in any enactment but observed that the said

expression means every fact which would be necessary for the

plaintiff to prove, if traversed, in order to support his right to the

34

judgment of the court. That, the expression ‘cause of action’ does

not comprise every piece of evidence and has no relation

whatsoever to the defence that may be set up by the defendant but

it references to the media upon which plaintiff requests the court

to arrive at a conclusion in his favour.

5.11 In Mohammad Khalil Khan , it was observed that what

would constitute the cause of action in a suit must always depend

upon the particular facts of the case. Further, in order to determine

the question whether cause of action in the two suits is the same

or not, one of the tests that could be applied is, whether, the same

evidence would support the claims in both suits; if the evidence

required to support the claims is different, then the causes of

action are also different. In the said case, the following principles

were laid down after discussing a number of judicial precedents on

the applicability of Order II Rule 2 of the Code in the following way:

“The principles laid down in the cases thus far discussed

may be thus summarised:—

(1) The correct test in cases falling under O. 2, R. 2, is

“whether the claim in the new suit is in fact founded upon

a cause of action distinct from that which was the

foundation for the former suit.” [Moonshee Buzloor

35

Ruheem v. Shumsunnissa Begum , (1867) 11 Moo. I.A.

551, 605].

(2) The cause of action means every fact which will be

necessary for the Plaintiff to prove if traversed in order to

support his right to the judgment. [Read v. Brown, (1888)

22 Q.B.D. 128, 131].

(3) If the evidence to support the two claims is different,

then the causes of action are also different.

[Brunsden v. Humphrey, (1884) 14 Q.B.D. 141, 146].

(4) The causes of action in the two suits may be

considered to be the same if in substance they are

identical. [Brunsden v. Humphrey, (1884) 14 Q.B.D. 141,

146].

(5) The cause of action has no relation whatsoever to the

defence that may be set up by the Defendant nor does it

depend upon the character of the relief prayed for by the

Plaintiff. It refers… to the media upon which the Plaintiff

asks the Court to arrive at a conclusion in his favour.

[Mst. Chand Kour v. Partab Singh, (1888) L.R. 15 I.A. 156,

157]. This observation was made by Lord Watson in a

case under S. 43 of the Act of 1882 (corresponding to O.

2, R. 2) where Plaintiff made various claims in the same

suit.”

5.12 Recently, in Cuddalore Powergen Corporation Ltd. vs.

Chemplast Cuddalore Vinyls Limited, 2025 SCC OnLine 82,

this Court speaking through Pardiwala J. observed in paragraph

47 as under:

36

“47. On a conspectus of the aforesaid discussion, what

follows is that:

i. The object of Order II Rule 2 is to prevent the

multiplicity of suits and the provision is founded on

the principle that a person shall not be vexed twice for

one and the same cause.

ii. The mandate of Order II Rule 2 is the inclusion of the

whole claim arising in respect of one and the same

cause of action, in one suit. It must not be

misunderstood to mean that all the different causes of

action arising from the same transaction must be

included in a single suit.

iii. Several definitions have been given to the phrase

“cause of action” and it can safely be said to mean -

“every fact which would be necessary for the plaintiff to

prove, if traversed, in order to support his right to the

judgment of the Court”. Such a cause of action has no

relation whatsoever to the defence that may be set up

by the defendant, nor does it depend upon the

character of the relief which is prayed for by the

plaintiff but refers to the media upon which the

plaintiff asks the Court to arrive at a conclusion in his

favour.

iv. Similarly, several tests have been laid out to determine

the applicability of Order II Rule 2 to a suit. While it is

acknowledged that the same heavily depends on the

particular facts and circumstances of each case, it can

be said that a correct and reliable test is to determine

whether the claim in the new suit is in fact founded

upon a cause of action distinct from that which was

the foundation of the former suit. Additionally, if the

evidence required to support the claims is different,

then the causes of action can also be considered to be

different. Furthermore, it is necessary for the causes

37

of action in the two suits to be identical in substance

and not merely technically identical.

v. The defendant who takes shelter under the bar

imposed by Order II Rule 2(3) must establish that (a)

the second suit was in respect of the same cause of

action as that on which the previous suit was based;

(b) in respect of that cause of action, the plaintiff was

entitled to more than one relief; and (c) being thus

entitled to more than one relief, the plaintiff, without

any leave obtained from the Court, omitted to sue for

the relief for which the second suit had been filed.

vi. The defendant must also have produced the earlier

plaint in evidence in order to establish that there is an

identity in the causes of action between both the suits

and that there was a deliberate relinquishment of a

larger relief on the part of the plaintiff.

vii. Since the plea is a technical bar, it has to be

established satisfactorily and cannot be presumed

merely on the basis of inferential reasoning.”

(Underlining by us)

On a reading of the above, what emerges is that the

defendant must establish that the second suit was in respect of the

same cause of action on which the previous suit was based. The

defendant must produce the plaint in the earlier suit in evidence

in order to establish that there is an identity in the causes of action

between the two suits and there was a deliberate relinquishment

of a larger relief on the part of the plaintiff. The defendant in a suit

38

must establish satisfactorily the issue and the technical bar cannot

be presumed merely on the basis of an inferential reasoning.

5.13 Bar to sue is distinct from a suit being barred by any law.

In the former, a suit cannot be commenced at all and, therefore,

would have to be dismissed on the application of Order II Rule 2 of

the Code, while in the latter case, a suit can be commenced but is

not entertainable owing to a bar in law. Under Order II Rule 2, a

suit can be dismissed after recording evidence depending upon the

facts and circumstances of the case and on the analysis of the

cause of action in a former suit and a subsequent suit. In the case

of rejection of a plaint, recording of evidence on the bar to file a suit

may not be necessary in all circumstances. It all depends on the

nature of the bar.

5.14 To sue, according to Webster Dictionary, is “to seek justice

or right by legal process”. According to Strouds’ Judicial

Dictionary, (Fifth Edition, p.2540) the words “to sue” is said to have

meaning generally speaking, ‘of bringing action’. Thus, the word

‘sue’ means to institute or commence a proceeding and has

reference to the point of time when the suit is instituted and not to

39

any subsequent stages of the suit. The word ‘sue’ means to take

any legal proceedings in accordance with the provisions of the

Code.

5.15 Thus, the right to sue is circumscribed by what is stated

under Order II Rules 1 and 2 of the Code. Order II Rule 2(1) states

that 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 the court. With regard to

relinquishment of part of the claim and omission to sue for one of

several reliefs, the consequences are stated in sub-rules (2) and (3)

of Order II Rule 2 of the Code. Thus, under the said sub-rules the

right to sue in respect of relinquishment of a claim or omitted

reliefs in the absence of conditions occurring therein would not

arise. Therefore, sub-rules (2) and (3) of Order II Rule 2 deal with

claims and reliefs.

5.16 Further, on a comparative analysis of the plaint in the first

suit and the second suit, the following aspects have to be

considered:

40

(i) Whether parties and their privies are the same in the

two suits?

(ii) Whether the cause of action in the two suits is

identical or distinct?

(iii) Whether the subject matters of the two suits are

different?

(iv) Any such other point of identity or distinction.

5.17 Turning to Order VII Rule 11 (d), it deals with rejection of

plaint and not the right to sue being barred. A rejection of a plaint

is as per clauses (a) to (f) mentioned in Order VII Rule 11. Order VII

Rule 11 (d) states that the plaint shall be rejected where the suit

appears from the statement in the plaint to be barred by any law.

Therefore, the crucial words are, the filing of the suit being barred

by any law. The issue, whether the suit is barred by any law has to

be determined from the statement in the plaint. The expression

“statement in the plaint” would mean not only a meaningful

reading of the averments in the plaint but also a meaningful

reading of the documents appended to the plaint. Thus, it is on a

meaningful reading of the plaint and the annexed documents, the

suit should appear to be barred by any law. Hence, the written

statement or any other document cannot be taken into

41

consideration in order to ascertain whether the suit is barred by

any law.

5.18 When the expression “barred by any law” is read in

juxtaposition with Order II Rule 2 of the Code, it is already noted

that Order II Rule 2 does not bar the filing of any suit but sub-rules

(2) and (3) forbids the suing for certain claims which have been

relinquished or certain reliefs which have been omitted to sue in

the earlier suit in respect of which a plaintiff cannot sue for those

claims or reliefs by filing a subsequent suit.

5.19 On the other hand, the bar to filing of any suit in law under

Order VII Rule 11(d) is distinct. The law must bar the filing of a suit

either by an express bar or by an implied bar. An example of an

express bar of a suit is in Section 34 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short, “SARFAESI Act, 2002”) which reads

as under:

“34. Civil court not to have jurisdiction.—No civil court

shall have jurisdiction to entertain any suit or proceeding

in respect of any matter which a Debts Recovery Tribunal

or the Appellate Tribunal is empowered by or under this

Act to determine and no injunction shall be granted by any

42

court or other authority in respect of any action taken or

to be taken in pursuance of any power conferred by or

under this Act or under the Recovery of Debts Due to

Banks and Financial Institutions Act, 1993 (51 of 1993).”

If Section 34 of the SARFAESI Act, 2002 applies in a case,

then, such a suit is barred in law. If on a meaningful reading of the

plaint a suit is barred in law, then the plaint itself has to be

rejected. In other words, the suit can be filed but the plaint has to

be rejected for reasons enumerated in Order VII Rule 11 of the Code

such as the suit being barred by any law. When a plaint is rejected,

a fresh suit could be filed only in terms of Order VII Rule 13 which

is extracted above. The said provision would however not apply, if

there is absence of a cause of action, the suit is hit by limitation or

on the principle of res judicata or is otherwise barred by law.

5.20 As opposed to the above, under Order II Rule 2 of the Code,

the right to sue is taken away in terms of sub-rules (2) and (3)

thereof which means that the suit could not have been filed at all.

On the other hand, under Order VII Rule 11(d), there is “no bar to

sue” but “the suit is barred by law from being filed”. There is a

43

subtle but distinct difference between the two. If the conditions

under sub-rules (2) and (3) of Order II Rule 2 of the Code are

satisfied in a case, it would be a case of there being a curtailment

of the right to sue for the claims relinquished or omitted in the

earlier suit. It is not a case where the plaint has to be rejected as it

is barred by the provision of Order II Rule 2 [sub-rules (2) and (3)].

In other words, the application of Order II Rule 2 of the Code to a

case can result in rejection of reliefs being granted to a plaintiff

which may, in certain cases, also result in dismissal of the suit

itself. But it does not result in rejection of the plaint under Order

VII Rule 11 (d) of the Code.

5.21 We think that in a case where Order II Rule 2 of the Code

applies, there is no legal bar to filing a suit but the reliefs sought

for or the claims made therein cannot be granted if the conditions

mentioned therein apply. For arriving at such a conclusion, there

has to be evidence let in in order to determine whether the

provision of Order II Rule 2 would apply to the suit or not. On the

other hand, in the case of Order VII Rule 11(d), if there is express

or implied bar for filing of a suit under any law th en on a

44

meaningful reading of the plaint, it has to be rejected. The suit need

not proceed to record evidence on merits but only to the extent

where evidence is necessary to be recorded for the purpose of

rejection of the plaint such as on the ground of the suit being bit

by law of limitation or on the principle of res judicata. Thus, the

bar created by any law to the filing of a suit is different from a

plaintiff suing for certain claims or reliefs which he could not have

claimed or sued having regard to Order II Rule 2 of the Code.

Therefore, in our view, the application of Order II Rule 2 cannot be

construed to be a ground for rejection of the plaint under Order VII

Rule 11(d) of the Code.

6. The judgments relied upon by learned senior counsel for the

respondent have mainly dealt with Order II Rule 2 of the Code. We

refer to the two judgments which deal in the context of Order II

Rule 2 as well as Order VII Rule 11 of the Code.

6.1 In the case of N.V. Srinivasa Murthy vs. Mariyamma

(Dead) by proposed LRs, (2005) 5 SCC 548, the facts were that

the appellant-plaintiff therein had earlier filed a suit bearing Civil

Suit No.557/1990 seeking the relief of permanent injunction

45

against the defendants from interfering with the possession and

enjoyment of scheduled lands. A subsequent suit was filed on

26.08.1996, by the very same plaintiff against the defendant

seeking a declaration that the registered sale deed dated

05.05.1953 was a loan transaction and also sought for permanent

injunction and specific performance of the oral agreement of

reconveyance of the property by a registered instrument.

6.1.1 In the said plaint it was contended that the father of the

plaintiffs had incurred some debts and had therefore borrowed a

sum of Rs. 2000 from the predecessor-in-title of the defendants. By

way of security for the loan advanced, a registered sale deed was

executed on 05.05.1953 with an oral agreement that on return of

the borrowed sum with interest, a registered reconveyance deed

shall be executed in favour of the borrower. Thereafter, the

defendant executed receipts in favour of the plaintiff,

acknowledging the return of loan amount. However, it was alleged

that the defendants made an attempt to interfere with the plaintiffs’

possession and enjoyment of the suit lands. Answering the issue

of whether the subsequent suit was barred under Order II Rule 2

46

of the Code, this Court observed that whatever relief the plaintiffs

desired to claim from the civil court on the basis of averment with

regard to the registered sale deed of 1953 could and ought to have

been claimed in original Civil Suit No. 557 of 1990 which was

pending at that time and therefore it was held that the second suit

claiming indirectly relief of declaration and injunction was barred

by Order II Rule 2 of the Code. It was held that the plaint in the

subsequent suit was liable to be rejected, if not on the ground that

it does not disclose “cause of action”, on the ground that from the

averments in the plaint, the suit was barred by law within the

meaning of clause (d) of Order VII Rule 11 of the of the Code.

6.1.2 In the aforesaid case, the issue of suit being barred by

limitation was accepted as the registered sale -deed dated

05.05.1953 was the basis for instituting the suit by taking recourse

to orders passed in the mutation proceedings by the Revenue

Courts. Hence, it was stated that on a critical examination of the

plaint, the suit was clearly barred on the facts stated in the plaint

itself. In the above context, it was also observed that the second

suit indirectly claimed the relief of declaration and injunction, and

47

hence it was apparently barred by Order II Rule 2 of the Code.

What primarily impressed this Court in the aforesaid case was the

fact that the second suit was barred by the law of limitation and

hence Order VII Rule 11(d) of the Code applied.

6.2 In State Bank of India vs. Gracure Pharmaceuticals

Ltd., (2014) 3 SCC 595-602, respondent-plaintiffs therein had

availed of various credit facilities from the appellant-defendant

bank therein. The plaintiffs had an export order from M/s

Medipharma Company, France, which had opened two letters of

credit (for short, “LCs”)- one was opened with Credit du Nord Paris

(for short, “CDN”) and another was opened with BNP-Paribas S.A,

Ivry-Sur-Seine (for short, “BNP”). The date of issue of the first LC

by CDN was 16.01.2001 and it was to expire on 10.04.2001.

Similarly, a second LC opened with BNP was issued on 16.01.2001

and was to expire on 30.04.2001. The proceeds of the export deal

were paid by the appellant bank honouring the bills of exchange

against the LC opened with CDN and BNP and credited the same

to the account of the respondent-plaintiffs therein subject to

realisation of the Letter of Credit (“LCs”). Since the amounts of the

48

LCs were not received with the issuing bank, the amounts were

debited to the account of the respondent on account of non-receipt

of the LCs. The Bank sent various letters to the respondent to

regularise the accounts. Since the accounts were not regularised,

the appellant-bank decided not to grant further facility. The

closure of the account was done on 20.03.2002 due to the fault of

respondent-plaintiffs therein on non-regularisation of their

accounts i.e. after non-receipt of payment of the LCs, the account

became irregular and remained so continuously. Plaintiffs therein

filed the first suit dated 15.05.2003 before the High Court seeking

recovery of Rs.44,30,994 with interest, alleging wrongful debits

relating to the LCs. Subsequently, a second suit dated 21.05.2003

was filed before the District Court seeking damages of ₹3,09,000

with interest, alleging wrongful withdrawal of credit facilities by the

bank. This Court held that both suits arose from the same cause

of action, the relief claimed in the second suit could have been

claimed in the first suit, and therefore the second suit was barred

under Order II Rule 2 of the Code. It was observed that the facts,

on the basis of which the subsequent suit was filed, existed on the

49

date on which the earlier suit was filed. The earlier suit was filed

on 15.03.2003, and the subsequent suit was filed on 21.05.2003.

No fresh cause of action arose between the first suit and the second

suit. The closure of the account, as already indicated , was

intimated on 20.03.2002 due to the alleged fault of the respondent

– plaintiff therein in not regularising their accounts, i.e. after non-

receipt of payment of LC, the account became irregular. When the

first suit for recovery of dues was filed, i.e. on 15.03.2001 for

alleged relief, damages sought for in the subsequent suit could

have also been sought for. It was therefore held that the respondent

had omitted certain reliefs which were available to it at the time of

filing of the first suit and after having relinquished the same, it

could not have filed a separate suit in view of the provisions of sub-

rule 2 of Order II Rule 2 of the Code.

6.2.1 In this case, it was observed that the earlier suit was filed

on 15.03.2003 and the subsequent suit was filed on 21.05.2003

and there was no fresh cause of action which arose between the

first and the second suit. Therefore, the respondent therein was

not entitled to split the cause of action into parts by filing separate

50

suits. However, it is necessary to note that although Order II Rule

2 of the Code may have been applied to the facts of the said case,

the plaint was not rejected under Order VII Rule 11(d) thereof as

such but possibly under Order VII Rule 11(a) of the Code as in

paragraph 17, it was noted by this Court as under:

“17. When we go through the abovequoted paragraph it

is clear that the facts on the basis of which the subsequent

suit was filed, existed on the date on which the earlier suit

was filed. The earlier suit was filed on 15.03.2003 and

subsequent suit was filed on 21.05.2003. No fresh cause

of action arose in between the first suit and the second

suit. The closure of account, as already indicated, was

intimated on 20.03.2002 due to the alleged fault of the

respondent in not regularising their accounts i.e. after

non-receipt of the payment of the LC, the account became

irregular. When the first suit for recovery of dues was filed

i.e. on 15.03.2001 for alleged relief, damages sought for in

the subsequent suit could have also been sought for.”

(Underling by us)

Therefore, the aforesaid two decisions of this Court could be

distinguished from the facts applicable to the present case.

7. A juxtaposition of the above discussion with the discussion

for rejection of a plaint under Order VII Rule 11(d) of the Code must

be made. On a conjoint reading of Order II Rule 2 with Order VII

Rule 11(d) of the Code, it emerges that the plea under Order II Rule

2 of the Code cannot be a basis or a ground for rejection of the

51

plaint. In other words, it is for the defendant to establish by way of

evidence, the bar of the subsequent suit under Order II Rule 2 of

the Code filed by the very same plaintiff. In such an event, on a

comparative analysis of the plaint filed in the first suit and the

plaint filed in the second suit, if the Court comes to the conclusion

that the second suit was filed on an identical cause of action which

led to the filing of the first suit and there was an omission to make

the claim or to reserve the reliefs to be claimed in the first suit in a

subsequent suit, then the bar under Order II Rule 2 of the Code

would apply to the subsequent suit or the second suit. Then the

claims or reliefs not maintainable would be rejected as the plaintiff

could not have sued for those reliefs by filing a second suit,

although technically, the filing of such a suit was not barred by

any law. On the other hand, if the cause of action for filing the

second suit is totally distinct from the cause of action from filing

the first suit and the reliefs claimed are distinct, subject-matter of

the suits are different and if the parties to the suit are also different

then in such a case, the plea under Order II Rule 2 of the Code

would not arise at all. The above are, inter alia, the heads of

52

distinction to be analysed while analysing the plaints in the

first/former suit and a subsequent suit.

8. In the present case, the defendant was not successful in

getting his application under Order VII Rule 11(d) of the Code

allowed. Consequently, the defendant filed civil revision petition

under Section 115 of the Code before the High Court. The High

Court, after narrating the respective contentions of the parties, has

analysed the averments in the plaint filed in OS No.4722 of 2012

(first suit) in juxtaposition with the plaint in OS No.2320 of 2013

(second suit). On a conjoint reading of the two plaints, the High

Court has observed that on a reading of the averments in

paragraph 7 of the plaint in OS No.4722 of 2012 that S Valliammai

(plaintiff No.1 in the second suit) was aware that the properties in

the present suit were already given to the share of defendant No.1

in the said suit (revision petitioner No.1 before the High Court).

That the power of attorney dated 04.11.2011 was not challenged

by M. Sokkalingam during his lifetime (plaintiff No.2 in the first

suit). That the second suit was filed after the demise of M.

Sokkalingam by his widow and his two daughters challenging the

53

power of attorney in favour of defendant No.2 in the said suit. The

High Court has also gone into the merits of the prayers sought for

by the plaintiff in the second suit. The High Court has further

observed that the first plaintiff in the second suit did not seek leave

to file another suit and that there was an omission to assail the

power of attorney in the first suit and that there was no separate

cause of action to file another suit. That the plaintiffs in the second

suit were aware of the execution of the power of attorney dated

04.11.2011, hence, the cause of action for both the suits were one

and the same. The High Court has further analysed the averments

in the second suit, as if it is evidence. The High Court has also

considered the implication of the release letters executed by the

daughters and consequently, held that the Trial Court erred in

concluding that the cause of action for the two suits is different

and distinct.

8.1 The above approach of the High Court in analysing the

averments made in the second suit as if it is evidence, in

juxtaposition with the averments made in the first suit is improper

54

in view of our aforesaid discussion. Therefore, the High Court was

not justified in allowing the Civil Revision Petition.

9. In the result, the appeal is allowed and the judgment and

order of the High Court is set-aside. The order of the trial court in

O.S. No.2320 of 2013 is restored along with the plaint.

All observations made in this appeal are only for the purpose

of disposal of this appeal and would not have a bearing on the

merits of the suit to be tried by the trial court.

The parties to bear the respective costs.

…………………………………..J.

(B.V. NAGARATHNA)

…………………………………..J.

(UJJAL BHUYAN)

NEW DELHI;

APRIL 16, 2026.