The bar of Order 2 Rule 2, CPC cannot be raised based solely on the averments in the subsequent suit's plaint. The identity of causes of action between the previous and subsequent suits must be established through evidence, and such determination is not permissible under Order 7 Rule 11, CPC.

1. An interesting question arises for consideration in this application. The question is “ whether a plaint can be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 on the plea taken by the defendants that the present suit is barred under Order 2 Rule 2 of the said Code “

.2. It is alleged by the defendant Nos. 1 to 6 (applicants) that the plaintiff No.1 had earlier instituted a civil suit for permanent injunction being Suit No.10/2004 titled as “Shri Suresh Kakkar v. Shri Mahender Nath Kakkar and Others”. In that suit, which is pending before the Civil Judge, Karkardooma Courts, Delhi, the plaintiff No.1 has sought a perpetual injunction against some of the defendants herein from selling or alienating the suit property. It is alleged by the defendant Nos. 1 to 6 that all the material and substantial allegations made in the present plaint and in the plaint of Suit No.10/2004 are identical. It is also submitted that the alleged causes of action in the present suit and in the previous civil suit are, substantially, one and the same. The said defendants also submit that in the earlier suit, the plaintiffs did not claim the relief of partition in respect of the suit property nor did they claim the relief of recovery of the amount as claimed in the present suit. In the earlier suit, only the relief of permanent

.injunction was sought although the plaintiffs could have sought the reliefs of partition and recovery on the basis of the same cause of action. The said defendants further submitted that the plaintiffs did not seek any liberty or permission of the Civil Judge in terms of Order 2 Rule 2, CPC for instituting the present suit, subsequently. According to the said defendants, this amounted to failure and / or voluntary omission on the part of the plaintiffs to seek the further reliefs of partition and recovery in the said Suit No.10/2004 and this resulted in the plaintiffs giving up and relinquishing their claims to the reliefs of partition and recovery of money. On the basis of these averments, it is prayed on behalf of the said defendant Nos. 1 to 6 that the plaint ought to be rejected as it is barred by law (Order 2 Rule 2, CPC).

3. The present application under Order 7 Rule 11, CPC was filed simultaneously with the filing of the written statement on behalf of the defendant Nos. 1 to 6 on 17.01.2005. In the written statement also, the said defendants have taken the plea that the suit is not maintainable and is barred under the provisions of Order 2 Rule 2, CPC. Alongwith the written statement, the said defendants have also filed a set of documents which include a copy of the plaint in Suit No.10/2004

4. The learned counsel for the defendants 1 to 6 (applicants) drew my attention to the plaint filed in the earlier suit (Suit No.10/2004) and sought to compare it with the plaint filed in the present suit. Various submissions were made with regard to the similarities and differences in the two plaints as also the improvements made in the present plaint. It was contended that while there was a mention of a request for partition in the earlier plaint as also the fact that though the partition was promised, it was refused, the plaintiffs only sued for injunction and omitted to sue for partition and recovery of money. It was contended that the relief of partition could very well have been claimed on the same cause of action as alleged in the earlier suit, but had not been claimed and in view of the provisions of Order 2 Rule 2, CPC, leave not having been taken of the court, cannot now be claimed in the present suit. Therefore, the plaint ought to be rejected in view of the principles set out in Order 7 Rule 11 (d), CPC. The learned counsel also referred to the decisions in Kamal Kishore Saboo v. Nawabzada Humayun Kamal Hasan Khan: 2001 II AD (Delhi) 635 (DB), Vishal Anand v. Bimla Anand and Others: 113 (2004) DLT 850 (DB) and (Sree Rajah) Venkata Rengiah Appa Rao Bahadur and Ors. v. Secy. o