Order 2 Rule 2 of the CPC seeks to avoid multiplicity of litigations on the same cause of action and will apply even when the subsequent suit has been filed during the pendency of the first suit.

Asha Arora, J.

1. The instant revisional application is against an order dated 7th May, 2016 passed by the learned Judge, Small Causes Court, Sealdah in Title Suit No. 109 of 2000 renumbered as Title Suit No. 57 of 2014.

2. By the impugned order the Trial Court rejected an application filed by the defendant no. 3 for deciding the point of maintainability of the suit pursuant to the Order dated 8th February, 2016 passed by this Court in C.O. No. 4218 of 2015. By the aforesaid order the Trial Court was directed to decide the issue of maintainability on two points namely, whether the suit is barred by Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as the CPC) and whether it is ex facie barred by limitation. The Trial Court decided both the issues in favour of the plaintiffs and rejected the application filed by the defendant no. 3.

3. Aggrieved, the petitioner /defendant no. 3 has approached this Court.

4. Leading this Court through paragraph 12 of the previous suit being Title Suit No. 18 of 1999 and paragraph 6 of the present suit being Title Suit No. 109 of 2000 (renumbered as Title suit No. 57 of 2014), Mr Anindya Kumar Mitra, learned Senior Counsel appearing for the petitioner/defendant no. 3 argued that the cause of action as regards the petitioner/defendant no. 3 in both the suits is the same. The deed of conveyance dated 9th November, 1992 executed in favour of the defendant no. 3 has been assailed by the plaintiffs in the present suit as well as in the earlier suit. Mr. Mitra contended that on the basis of the cause of action in the earlier suit plaintiffs could have sought for further relief in the said suit in the nature of cancellation of the deed of conveyance dated 9th November, 1992 and recovery of possession. Instead of claiming the entire relief in the earlier suit plaintiffs filed the present suit seeking cancellation of the impugned deed of conveyance and recovery of possession without obtaining the leave of the Court as contemplated by Order 2 Rule 2 of the CPC. In the absence of obtaining such leave in the earlier suit, plaintiffs are precluded from bringing a subsequent suit claiming the reliefs which were omitted in the earlier suit. Learned counsel for the petitioner further submitted that though the plaintiffs had knowledge of the deed of conveyance at the time of filing of the earlier suit, no relief was sought for cancellation of the deed. Therefore the present suit claiming the reliefs which ought to have been sought in the earlier suit is barred by Order 2 Rule 2 of the CPC. To buttress his submissions Mr. Mitra relied upon the decision reported in (2014) 3 Supreme Court Cases 595 (State Bank of India Versus Gracure Pharmaceuticals Limited). Reference has also been made to the decisions reported in (2013) 1 Supreme Court Cases 625 in the case of Virgo Industries (ENG.) Private Limited Versus Venture Tech Solutions Private Limited and the case of N.V. Srinivasa Murthy and Others versus Mariyamma (dead) by proposed LRS. & Others reported in (2005)5 Supreme Court Cases 548. On the point of limitation, learned counsel for the petitioner submitted that the present suit is for cancellation of the deed of conveyance which was registered on 9th November, 1992. Since no specific date has been mentioned in the plaint with regard to the plaintiff’s knowledge of the deed of conveyance, the date of registration of the deed becomes the date of deemed knowledge. Therefore the claim for cancellation of the deed of conveyance is barred by Article 59 of the Limitation Act. In support of such submission reference has been made to the decision reported in (2000)7 Supreme Court Cases 702 in the case of Dilboo (smt) (dead) by LRS. And Others versus Dhanraji (Smt)(dead) and Others. It has also been contended that the claim of the plaintiffs for recovery of possession being consequential to the cancellation of the deed of conveyance, cannot be granted. Learned counsel for the petitioner argued t