The dismissal of a suit under Order II Rule 2 CPC requires clear evidence of a barred claim based on the same cause of action.

JUDGMENT :

Alka Sarin, J.

Present revision petition has been filed challenging the order dated 17.08.2024 (Annexure P-1) whereby the application filed by the petitioner for dismissal of the suit under Order II Rule 2 of the Code of Civil Procedure, 1908 has been dismissed.

2. The brief facts relevant to the present lis are that plaintiff (respondent No.1 herein) filed a suit seeking inter-alia a declaration to the effect that she is owner to the extent of half share in the property i.e. measuring 07 Marlas comprised in Khata No.98/122, Khasra No.5/12 as per Jamabandi for the year 1999-2000, situated in village Bhattian, Hadbast No.328, Tehsil Khanna, District Ludhiana as well as for permanent injunction. It was claimed that Meehan Singh, father of the plaintiff (respondent No.1 herein) and the defendant No.1 (respondent No.3 herein), was owner in possession of the suit property. Bhajan Kaur was the mother of the plaintiff (respondent No.1 herein) and the defendant No.1 (respondent No.3 herein). It was further the case set up that Meehan Singh died intestate leaving behind the plaintiff (respondent No.1 herein), defendant No.1 (respondent No.3 herein) and Bhajan Kaur as Class-I heirs and they were entitled to 1/3rd share each in the suit property and now after the death of Bhajan Kaur, the plaintiff (respondent No.1 herein) as well as the defendant No.1 (respondent No.3 herein) were entitled to half share each. During the pendency of the suit, an application was filed by the petitioner under Order II Rule 2 CPC for rejection of the plaint. Reply was filed to the said application. Vide the impugned order dated 17.08.2024, the said application has been dismissed. Aggrieved by the same, the present revision petition has been filed.

3. Learned counsel for the petitioner would contend that the present suit is clearly barred by the provisions of Order II Rule 2 CPC in view of the suits earlier instituted i.e. Civil Suit No.3 of 2016 and Civil Suit No.106 of 2020 and that the limitation to challenge the sale deed dated 20.02.2004 has already expired.

4. Heard.

5. Order II Rule 2 CPC reads as under :

'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.'

6. Hon'ble Supreme Court in case of Alka Gupta vs. Narinder Kumar Gupta [2010 (10) SCC 141] held as under :

9. This Court in Gurbux Singh v. Bhoora Lal , AIR 1964 Supreme Court 1810 held :

Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court can not examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was