JUDGMENT :

Alka Sarin, J.

Present revision petition has been filed challenging the order dated 10.04.2024 (Annexure P-4) whereby the application filed by the defendant No.6-petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been dismissed.

2. Briefly stated the facts relevant to the present lis are that plaintiff-respondent Nos.1 to 7 herein filed a suit for declaration and permanent injunction. In the said suit an application was filed by the defendant No.6-petitioner herein under Order VII Rule 11 CPC for rejection of the plaint on the ground that the same was barred under Order II Rule 2 CPC. Reply was filed to the said application. Vide the impugned order the said application has been dismissed. Aggrieved by the same, present revision petition has been filed.

3. Learned counsel for the defendant No.6-petitioner would contend that the suit was clearly barred by Order II Rule 2 CPC as earlier a case had been filed being Civil Suit No.54652-2013 titled 'Savitri Devi vs. Dault Ram etc.' which was dismissed. Further, the appeal was partly allowed and that the defendants had been declared owner of the land on the basis of the sale deed dated 02.07.2009 hence the application under Order VII Rule 11 CPC ought to have been allowed.

4. Heard.

5. In the present case the application under Order VII Rule 11 CPC has been filed on the ground that the suit is barred by Order II Rule 2 CPC.

6. It is trite that at the stage of deciding the application under Order VII Rule 11 CPC only the contents of the plaint are to be seen. From a meaningful reading of the plaint, the facts as stated in the application under Order VII Rule 11 CPC are not made out.

7. 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 :

"In order that a plea of a bar under Order 2 Rule 2(3) Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."

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 barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea b