The subsequent suit was barred by res judicata as the foundation for the claim in both suits was the same, and the plaintiff could have sought further relief in the first suit.

1. The plaintiff filed two suits, one in O.S.No.699 of 2003 and another suit in O.S.No.940 of 2003 in respect of the same property. The defendant in O.S.No.940 of 2003, i.e, in the subsequent suit, filed a petition in I.A.No.1165 of 2003 under Order 7 Rule 11 read with Order 11 Rule 2 and 151 of C.P.C. to reject the plaint. That petition was allowed on 26.3.2004. Challenging the order rejecting the plaint, the plaintiff in O.S.No.940 of 2003 filed the appeal in A.S.No.130 of 2005. A.S.No.130 of 2005 was allowed remanding O.S.No.940 of 2003 for joint trial along with O.S.No.699 of 2003. This Civil Miscellaneous Appeal has been filed challenging the order passed in A.S.No.130 of 2005.

2. Admittedly, there are two suits which are between the same parties and in respect of the same property. It is the contention of the defendants that the cause of action in both the suits is the same and therefore, the second suit is not maintainable. But, it is the contention of the plaintiff that the cause of action in both the suits are different and therefore, the second suit is maintainable. According to the plaintiff in O.S.No.699 of 2003, the first suit was filed for bare injunction and the second suit was filed for mandatory injunction. In other words, the contention is that, at the time when the first suit was filed for bare injunction, there was no construction at all and therefore, the relief in the nature of preventive injunction was asked for. At the time when O.S.No.940 of 2003 was filed, there was construction and the plaint was filed seeking mandatory injunction directing the removal of construction. Therefore, it is contended that the cause of action in both the suits are different.

3. Per contra, it is the contention of the learned counsel for the defendants that the suit in O.S.No.940 of 2003 is barred by the principles of res-judicata and specifically under Order 2 rule 2 CPC. It is appropriate to consider Order 2 Rule 2 C.P.C.

3.1.ORDER 2. Suit to include the whole claim.

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

3.2. Rule 2(1) in Order 2 enables the plaintiff to relinquish any portion of the claim, so as to bring the same within the jurisdiction of the Court and Rule 2(2) of Order 2 contemplates that if the plaintiff has omitted to sue in respect of, or intentionally relinquishes, any portion of his claim, he would be precluded from suing in respect of the portion so omitted or relinquished. Rule 3 of Order 2, provides that if, in case, the plaintiff omits to pray for any relief, with the leave of the Court he may sue on a subsequent occasion for such reliefs.

3.3. When the plaintiff's subsequent suit is not barred by Order 2, Rule 2 of C.P.C has been explained in the decision reported in AIR 1970 SC 1059 (1) Sidramappa v. Rajashetty and others, wherein it is held that where 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 the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff's subsequent suit is not barred by Order 2, Rule 2 of C.P.C. therefore it is necessary to see whether the foundation otherwise called the cause of action for both the suits are diff