A plea of bar under Order 2 Rule 2 C.P.C. requires establishing an identical cause of action in both suits, necessitating examination of prior pleadings.

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.2 of 2023 in O.S.No.2 of 2023, on the file of the District Munsif Court, Sattur, dismissing the petition filed under Order 7 Rule 11 C.P.C.

2. The respondents, as plaintiffs have filed the above suit claiming declaration that the sale deed dated 24.09.2020, on the file of the Sub Registrar Office, Sattur executed by the first revision petitioner / first defendant in favour of the revision petitioners 2 to 8 / defendants 2 to 8 as null and void and nonest in the eye of law. Pending suit, the revision petitioners have filed an application in I.A.No.2 of 2023 under Order 7 Rule 11 C.P.C., for rejection of plaint on the ground that in view of the earlier suit in O.S.No.57 of 2021 pending on the file of the District Munsif Court, Sattur, the present suit in O.S.No.2 of 2023 is barred under Order 2 Rule 2 C.P.C. The respondents / plaintiffs have filed their counter statement raising serious objections. The learned District Munsif, after enquiry, has passed the impugned order dismissing the said petition. Aggrieved by the order of dismissal, the present revision came to be filed.

3. The main contention of the revision petitioners is that the suit property was in possession and enjoyment of Subbiah – father of the defendants 1 to 5, for whom patta was granted in Patta No. 315, that their brother Mareeswaran had died leaving behind the defendants 6 to 8, that the parents of the defendants 1 to 5 died on 30.04.2008 and 23.01.2016 respectively, that all the legal heirs of the said Subbiah have executed a sale deed in favour of the first defendant in respect of their 5/6 shares in the suit property on 24.09.2020 by receiving valuable consideration and that the first defendant has become the owner of the property and he has been in possession and enjoyment of the same, that the first defendant has put up a petty shop in the vacant land and is doing business, that patta was also transferred in his name and the same came to be issued, that the plaintiffs have no right to title or interest in the suit property, that since they had interfered with the first defendant's possession and enjoyment of the suit property, he was constrained to file a suit in O.S.NO.57 of 2021, that the plaintiffs herein have filed their written statement along with the counter claim and the said suit was in part-heard stage, that the plaintiffs have filed the present suit to declare that the sale deed executed by the defendants 2 to 8 in favour of the first defendant is null and void, that the cause of action for claiming the said relief has arisen in the earlier suit in O.S.No.57 of 2021 itself, that the plaintiffs ought to have obtained leave for filing the present suit under Order 2 Rules 2 and 3 C.P.C., that since the present suit came to be filed without getting any permission, the present suit is barred by Order 2 Rule 2 C.P.C., and that therefore, the plaint is liable to be rejected.

4. The defence of the plaintiffs is that the bar under Order 2 Rule 2 C.P.C., cannot be presumed, that the said plea can only be decided at the trial, that the northern portion in S.No.1407/2017 is the suit property and the same was owned by the plaintiffs' father Marimuthu, but the patta was wrongly issued in favour of Subbiah, that the said Subbiah has never been in possession and enjoyment of the suit property, that since Subbiah had no right in the suit property, the defendants 2 to 8 have no right to execute a sale deed in favour of the first defendant and that therefore, the plaintiffs were constrained to file the above suit to declare that the said sale deed is null and void, that the defendants by creating documents including the sale deed, have filed the suit in O.S.No.57 of 2021 and that since the defendants 2 to 8 were not parties to the suit in O.S.No.57 of 2021, the plaintiffs have chosen to file the present suit, that no suit can be dismissed without trial on the ground of Order 2 Rule 2 C