A subsequent suit based on a different cause of action is not barred under Order 2, Rule 2 of the Code of Civil Procedure.

1. This Second Appeal was admitted on 27.7.2007 on the following substantial questions of law :

(a) Whether the plaintiff was entitled to institute the instant suit when the earlier suit filed by the plaintiff was dismissed as withdrawn and the plaintiff had not sought liberty to file a fresh suit and the same was not granted to the plaintiff ?

(b) Whether it can be said, in the facts and circumstances of the case, that the subject matter in this suit and the earlier suit was one and the same and hence the present suit was barred under the provisions of Order 23, Rule 1 of the Code of Civil Procedure ?

2. Heard submissions at the bar. It appears that, by the impugned Judgment and Order passed in Regular Civil Suit No.489 of 1987, the suit was partly decreed and the defendants were directed to hand over peaceful and vacant possession of the suit land bearing Survey No.166/3 to the plaintiff after the trial Court declared that the disputed way is easement of necessity and the plaintiff is entitled to use the said way. Consequently, the defendants were restrained permanently from causing obstruction and interference to the use of disputed way by the plaintiff personally or through any one on his behalf. The trial Court while deciding Regular Civil Suit No.489 of 1987 found that the plaintiff is owner of the suit land bearing Survey No.1663 under registered Sale deed dt.23.1.1981 and was in possession of the land pursuant to agreement to sell dt.25.1.1980. The trial Court was satisfied that the plaintiff was dispossessed by the defendants from the suit field and that the plaintiff is entitled to easement of necessity regarding cart way of 8 ft. wide. Thus, the relief of declaration and possession was granted in favour of the plaintiff. The Judgment and Order passed by the trial Court was questioned in Appeal u/s. 96 of the Code of Civil Procedure in the District Court, Wardha bearing Regular Civil Appeal No.33 of 1999. The first Appellate Court confirmed the finding that the plaintiff is owner of suit land bearing survey no.1663 under sale deed dt.25.1.1980 and was dispossessed by the defendants after sale deed was executed and it was held that the plaintiff is entitled to right of way of 8 ft. wide. That being so, the appeal came to be dismissed.

3. Against these concurrent findings of facts, this Second Appeal is preferred on the aforesaid substantial questions of law as formulated by order dt.27.7.2007 by this Court.

4. Mr. S.P. Kshirsagar, learned Counsel for the appellants argued that the plaintiff was not entitled to institute the suit on the ground that the earlier suit was withdrawn without liberty to file fresh suit. According to Mr. S.P. Kshirsagar, learned Counsel for the appellants, the plaintiff is required to raise all grounds available to him on the subject in dispute and non-inclusion of such grounds available to him would amount to abuse of process of Court as the plaintiff cannot institute several suits on the same subject. The learned Counsel made a reference to the ruling in the case of Smithkline Beecham Consumer Healthcare GMBHY and Others .vs. Hindustan Lever Limited and another reported in 2002 (1) Mh.l.J. 453 to canvass the provisions of Order 2, Rule 1 of the Code of Civil Procedure which obliges the plaintiff to include all grounds available to him in the suit.

5. Mr. Kshirsagar, learned Counsel also made a reference to the ruling in the case of N.V. Srinivasa Murthy and Others vs. Mariyamma (Dead) by proposed L.Rs. and Others reported in (2005) 5 SCC 548 to argue that under Order 2, Rule 2 of the Code of Civil Procedure, there is a bar to fresh suit in respect of the relief omitted.

6. Reference is also made to the ruling in the case of Prahlad Singh .vs. Col. Sukhdev Singh, 1987 EQ (SC) 252 to submit that a party cannot be allowed to reagitate the same matter again when the matter is already decided.

7. Reference is then made by learned Counsel Mr. S.P. Kshirsagar to the ruling in the case of Union of