Heard

the

learned

counsel

for

the

revision

petitioners.

The revision petitioners filed IA No.VII before

the Trial Court in O.S.No.466/2016 invoking Section 12 of

the CPC which in effect is invoking the provisions Order 2

Rule 2(3) of the CPC. Order 2 Rule 2(3) of CPC reads as

below:

"(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."

- 4 -

The contention of the revision petitioner No.2 is

that he is the defendant No.2 in O.S.No.466/2016. Earlier

the plaintiff in O.S.No.466/2016 as well as the revision

petitioner herein were the defendant Nos. 2 and 3 in

O.S.No.50/2009, wherein the petitioner had made a

counter claim against the plaintiff and the defendant Nos.1

and 2 therein. Acceding to his contention, while dismissing

the suit O.S.No.50/2009, a injunction was granted in

favour of the revision petitioner No.2 herein (defendant

No.2 in O.S.No.466/2016) that the plaintiff and defendant

Nos.1 and 2 in O.S.No.50/2009 are restrained from

alienating or transferring, mortgaging the property and

also from dispossessing the defendant No.3 and his family

members from the suit property until disposal of

O.S.No.246/2018

(Misc.No.68/2008)

and

C.C.No.2144/2009. Now the revision petitioner contends

that the plaintiff in O.S.No.466/2016 who was the

defendant No.2 in O.S.No.50/2009 knew about the

contention taken by the revision petitioner that he had

denied her title. It is also contended that the suit filed by

- 5 -

the plaintiff in O.S.No.466/2016, (who was the defendant

No.2 in O.S.No.50/2009) is hit by Order 2 Rule 2(3) of

CPC.

A plain reading Order 2 Rule 2(3) of CPC as

reproduced supra shows that when a person sue based on

the cause of action, he has to seek all the reliefs that

would accrue to him under the said cause of action. If he

omits to seek any one of the relief, either he has to seek

the leave of the Court or he will forego such relief in any of

the suit he may file later. In other words it would bar a

second suit by him on the same cause of action.

In

the

case

on

hand,

the

plaintiff

in

O.S.No.466/2016

was

a

defendant

No.2

in

O.S.No.50/2009. Obviously she had not approached the

court seeking any relief. She had not made any counter

claim in the said suit. Therefore, she has not sought for

any relief in O.S.No.50/2009 and therefore it is not

- 6 -

possible to hold that the rigor order 2 Rule 2(3) of CPC is

applicable in any way.

Learned counsel for the revision petitioner has

also placed reliance on the decision in the case of Deva

ram and another V/s Ishwar Chand and Another¹,

where relying on a earlier decision, the Apex Court held

that what is to be seen is that the cause of action in the

earlier suit and subsequent suit are identical and when the

identity of the cause of action are established, the Rule

would immediately become applicable. It also relied on a

decision in the case of Gurbux Singh V/s Bhura Lal²,

wherein it was observed as below:

"In order that a plea of a bar under

O.2

R.2(3)

Civil

Procedure

Code

should succeed the defendant who

raises the plea must make out (i) that

the second suit was in respect of the

same cause of action as that on which

1 AIR 1996 SC 378

2 AIR 1964 S.C. 110

- 7 -

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 whic