2007 Supreme(Bom) 1641

IN THE HIGH COURT OF BOMBAY
C. L. PANGARKAR, J.
Ramlal Maniram Navdhinge - Appellant
Versus
Maniram Patiram Navdhinge & Ors. - Respondent
First Appeal No.1 07 of 2007
Decided on 28th November, 2007

Headnote:Civil Procedure Code, 1908 - Order II, Rule 2 - Order VII, Rule 11 - Bar under Order II, Rule 2 - Applicability of - Pendency of two suits simultaneously - Earlier suit decided and institution of fresh second suit on same cause of action - Bar under Order II, Rule 2 attracted - However withdrawal of earlier suit and continuation and prosecution of only later suit not attracts bar under Order II, Rule 2 - Rejection of plaint under Order VII, Rule 11 as barred under Order II, Rule 2, unjustified and not proper. - Counsel for the appellant contended that bar of Order II would apply where the first suit is already decided on merits. He contends that bar of Order II would not apply where the first suit is withdrawn. The very objective of Order II is the parties should not be vexed twice for the same cause i.e. where two claims can be clubbed together they cannot be split and defendant cannot be forced to face the litigation twice. Therefore if defendant is required to face the litigation twice when the entire matter could have been decided in single suit he should not be required to face another suit. In the instant case provisions of Order II, Rule 2 would not at all apply. Plaintiff has withdrawn the earlier suit unconditionally and he has instituted a fresh suit. Therefore it could not be said that defendant is required to face two litigations one after the other and/or even during the pendency of the first suit. There is only one suit pending now. Nothing has been decided in earlier suit. It is not that after the decision of earlier suit again second suit is filed on the same cause of action, nor is it that different questions are agitated in two different pending suits simultaneously. There the plaintiff cannot continue two suits seeking different reliefs arising out of same cause of action but he can certainly withdraws one and continue the other if both were pending simultaneously that is why there is a provision in the form of Section 10 of Civil Procedure Code, Section 10 permits the Court to stay the subsequently instituted suit if first suit is pending between the same parties involving the same questions. Where therefore first suit is withdrawn it cannot be said that the defendant would be vexed if the second suit is continued. Shri Khapre the learned Counsel for the respondent No. 1 relied upon a decision of this Court in Smithkline Beecham Consumer Health Cares Gmbhy and others v. Hindustan Lever Limited and another, 2002 (Supp) Bombay Cases Reporter 674 : 2002 (1) All MR 1043. The fact of the case were different. In that case the second suit was filed at Bombay and the first suit on similar facts was filed at Delhi and it was also pending. Here the first suit is withdrawn immediately and only second suit is continued. To my mind the bar under Order II, Rule 2, Civil Procedure Code would apply where either two suits are pending simultaneously or when the earlier suit is decided and fresh second suit is instituted on the same cause of action. In the instant case now only one suit is pending and is being prosecuted. At the most in such a case the provisions that would apply is Order XXIII, Rule 1. If similar suit is instituted without permission Order XXIII, Rule 1 would bar the second suit. If in the instant case provisions of Order II, Rule 2 were to apply then Order XXIII would be redundant. The provisions of Order XXIII necessarily apply to cases where suit is withdrawn. The legislature has therefore introduced bar on second suit at two places for two different reasons. If the Order II, Rule 2 were to apply where first suit is withdrawn there would not have been necessity to have provisions of Order XXIII, Rule 1, Sub-rule 4 in the Code. Where first suit is withdrawn the provisions of Order XXIII alone would apply. Second suit in the instant case was not barred and the learned Judge of the lower Court fell in error.