A subsequent suit is not barred under Order II Rule 2 CPC if the omission of relief in the previous suit was due to a lack of knowledge of material facts. Additionally, for rejection of a plaint under Order VII Rule 11 CPC, only the plaint's averments are considered.

HON'BLE MS. JUSTICE REKHA BORANA

Order

Judgment reserved on 19/03/2026

Judgment pronounced on 13/04/2026

1. The present revision petition has been filed aggrieved of order dated 26.02.2026 passed by Additional District Judge, Jodhpur District in Civil Original Suit No.02/2026 whereby application under Order VII Rule 11, CPC as filed on behalf of defendant Nos.3 to 6, stood rejected.

2. Vide the application, following grounds were raised by the defendants :

(i) The suit was barred by law in terms of Order II Rule 2, CPC as an earlier suit for permanent injunction qua the same property already remained pending before the Civil Court at Pipar. The present suit has been filed on the same cause of action without withdrawing the earlier suit therefore, the same is barred in law.

(ii) The plaintiff is not entitled to claim/pray for cancellation of the gift deed, he not being a party to the said gift deed. Further, a gift deed can only be revoked or suspended but cannot be cancelled. Meaning thereby, the relief as prayed for by the plaintiff cannot be granted and hence, the plaint deserves to be rejected.

(iii) The property in question had already been partitioned in the year 2011 and the said partition had even been acted upon therefore too, the plaint deserves to be rejected.

(iv) Had the property not been partitioned, the plaintiff would not have claimed any pre-emption. The claim of pre-emption itself proves that the property was partitioned.

3. Counsel for the petitioners submitted that the learned Trial Court erroneously rejected the application as the relief for cancellation of gift deed as prayed for by the plaintiff could not be granted as per law and when the main relief cannot be granted, the consequential relief for cancellation of sale deed also cannot be granted. Counsel while relying upon a Co-ordinate Bench judgment of this Court in Iqbal Chhipa Vs. Loon Chand ; S.B. Civil Revision Petition No.43/2019 (decided on 04.08.2021) submitted that the plaint deserves to be rejected on the said count alone. He further submitted that the suit in question been filed without withdrawing the earlier suit or without seeking a liberty of the Court, was clearly barred in terms of Order II Rule 2, CPC.

4. Per contra Counsel for the respondents submitted that the bar of Order II Rule 2, CPC would not apply to the present matter as the plaintiff was not aware of the gift deed or the sale deed in question at the time of filing of the earlier suit. It is only after the application for impleadment been filed by defendants No.3 to 6 in the said suit that the plaintiff came to know about the said documents. Hence, the learned Trial Court rightly rejected the application as filed by the defendants.

5. So far as the relief for cancellation of the gift deed is concerned, the same being in terms of the provisions of the Specific Relief Act, 1963, can definitely be granted.

6. Heard the counsels. Perused the record.

7. The primary issue which arises for consideration before this Court is - Whether the present suit is barred under the provisions of Order II Rule 2, CPC on account of the pendency of an earlier suit for permanent injunction and, consequently, whether the plaint is liable to be rejected under Order VII Rule 11, CPC.

8. On bare perusal of the pleadings, it is evident that the earlier suit for injunction was instituted on account of apprehended interference. As per the plaint, the present suit has been filed after the plaintiffs acquired knowledge regarding the execution of the gift deed and the sale deed, on the basis of which rights are claimed to have been created in favour of the defendants.

9. The applicability of bar under Order II Rule 2, CPC depends upon the identity of the cause of action raised and also upon whether the plaintiff, despite having knowledge of the relevant facts, omitted to claim the relief in the earlier suit. Hon’ble the Apex Court in the case of Cuddalore Powergen Corporation Lt