IMPORTANT POINT
The bar of Order II Rule 2 CPC is not attracted if the subsequent suit is based on a distinct cause of action that arose during the pendency of the previous suit, and the plaintiff had obtained permission to initiate recovery action against the defendants.

JUDGMENT (Oral)

1. Present none on behalf of the defendant No. 2. The defendant No. 2 is proceeded ex parte.

2. Issues in the present Suit were framed vide Order dated 27.07.2019. Issue No. 3 was taken as a preliminary issue which reads as under:

"(iii) Whether the present suit is barred by Order II Rule 2 of the CPC or on any other principle of law on account of CS(OS) No.2181/2015 re-numbered as CS No.208I30/20I6 earlier filed by the plaintiff against defendant no. 1 having been withdrawn by the plaintiff? OPD."

3. The plea taken by the defendant is that the present Suit is barred under Order II Rule 2 CPC. The basis for this assertion is that the plaintiff had filed an earlier Suit bearing No. CS(OS) 2181/2015 (renumbered as CS No. 208130/2016) before the Additional District Judge, District Court for the same relief and the same had been withdrawn by the plaintiff vide Order dated 21.05.2017 without any liberty. The plaintiff has now filed the present Suit for Recovery of Rs. 10,24,65,154/- on the same cause of action and thus, the present Suit is barred under Order II Rule 2 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC, 1908").

4. Before considering the merits, it is apposite to analyse the of Order II Rule 2 of CPC, 1908 and the cardinal principles envisaged therein.

5. While explaining the object of Order II Rule 2 CPC, the Supreme Court in Alka Gupta Vs Narender Kumar Gupta, AIR 2011 SC 860 has observed that the object of Order II Rule 2 of the Code is to primarily ensure that no defendant is sued and vexed twice in regard to the same cause of action and also to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.

6. In the landmark case of Gurbux Singh Vs. Bhura Lal, 1964 AIR SC 1810, the Apex court laid down the essential ingredients to be satisfied for the raising the plea of a bar under Order II Rule 2(3), CPC 1908. Firstly, the defendants must establish that the second suit filed is in respect of the same cause of action as that on which the previous suit was based; Secondly, in respect of that cause of action the plaintiff was entitled to more than one relief; and Lastly, the plaintiff has omitted to sue for the relief for which the second suit had been filed, without any leave obtained from the Court. Elaborating the concept of "Cause of action" it was also held that it is the bundle of facts which forms the basis or foundation of any suit.

7. Similarly, observations have been made in the case of Sidramappa Vs. Rajashetty and Ors., 1970 AIR SC 1059 and Deva Ram Vs. Ishwar Chand, 1996 AIR (SC) 378, to hold that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit if the plaintiff could not have claimed the relief sought then, the subsequent suit will not be barred by the rule contained in Order II Rule 2, CPC.

8. Further, in the case of Inbasagaran and Anr. V. S. Natarajan (Dead) thought Legal Representatives, (2015) 11 SCC 12, the Apex Court has reiterated that the bar of Order II Rule 2 would be attracted only if the Plaintiff omits to sue for or relinquishes the claim in the suit with the knowledge that he had any such right existing.

9. The effect of Order II Rule 2 of the CPC 1908 is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. However, Order 2 Rule 2 would not bar a second suit based on a different and distinct cause of action. The object of Order II Rule 2 is unity of claims/reliefs arising from the same cause of action and not unity of distinct cause of actions. Hence, it emerges that it is incumbent to ascertain primarily the precise cause of action upon which the previous suit was filed, to determine whether the bar under Order 2 Rule 2(3), CPC 1908 would be attracted.

10. Now the factual matrix of two suits may be examined t