Full Judgment Text
2026 INSC 372
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3624 OF 2024
S. VALLIAMMAI & OTHERS …APPELLANTS
VERSUS
S. RAMANATHAN & ANOTHER …RESPONDENTS
J U D G M E N T
NAGARATHNA, J.
The appellants herein are aggrieved by the impugned order
dated 11.07.2019 passed by the High Court of Judicature at
Madras in C.R.P.(PD) No.4472 of 2013 whereby the Civil Revision
Petition filed by the respondents herein was allowed and the order
dated 24.06.2013 passed by the VIth Assistant Judge, City Civil
Court, Chennai (hereinafter referred to as “trial court”) in O.S.
Signature Not Verified
Digitally signed by
BORRA LM VALLI
Date: 2026.04.16
17:04:29 IST
Reason:
1
No.2320 of 2013 (hereinafter called the ‘second suit’ for the sake of
convenience) was set aside. Consequently, the plaint in the second
suit was rejected. The trial court, by the said order, had rejected
I.A. No.7712/2013 filed by the respondents under Order VII Rule
11 of the Code of Civil Procedure, 1908 (hereinafter referred to as
“Code”) and allowed I.A. No.6381/2013 filed by the appellants
herein under Order XXXIX Rules 1 and 2 of the Code.
1.1 For the sake of convenience, the parties shall be referred to
in terms of their status and position before the trial court in O.S.
No.2320 of 2013 (the second suit).
1.2 Briefly stated, the facts of the case are that Late Shri M.
Sokkalingam (“original owner”) and his wife S Valliammai -
appellant No.1 herein (hereinafter referred to as plaintiff No.1)
entered into a partition of family properties by way of oral
settlement dated 01.11.2011 with their children, i.e., two
daughters namely Meena – appellant No.2 herein (hereinafter
referred to as plaintiff No.2) and Muthumeena – appellant No.3
herein (hereinafter referred to as “plaintiff No.3”) and son namely,
S. Ramanathan - respondent No.1 herein (hereinafter referred to
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as defendant No.1). According to the oral settlement, plaintiff Nos.2
and 3 received Rs.9,00,00,000/- (Rupees Nine Crores) each
through cheques and executed deeds dated 02.11.2011,
relinquishing their share in the properties in favour of their
brother-defendant No.1.
1.3 Thereafter on 04.11.2011, the original owner executed a
registered Power of Attorney bearing Document No.724 of 2011 in
favour of Shri E.J. Ayyappan - respondent No.2 herein (herein
referred to as “defendant No.2”), with respect to the following
properties:
i) Regent Place bearing R.S. No.3907/2A, Survey No.C-263 (part)
New Survey No.43 situated in Ward E, Block No.6,
admeasuring 1 acre 56 cents, situated at 374, 375 and 376,
Peyton Road, Opposite Ratan Tata Officer’s Home,
Ootacamund, Nilgiris (“Ooty (Nilgiris) property”, for the sake of
convenience) (Schedule ‘A’ Property).
ii) Vacant land situated at Door No.1/29, Rayavaram Main Road,
(Kadiyapatti village), Ramachandrapuram, Panangudi,
Vettam, Thirumayam Taluk, Pudukottai District, comprised in
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Old Survey No.177 (Natham) New Survey No.90/11
(“Pudukottai property”, for the sake of convenience) (Schedule
‘B’ Property)
1.4 Pursuant thereto, settlement deeds dated 09.11.2011 and
10.11.2011 with respect to the aforesaid properties were executed
in favour of defendant No.1 by defendant No.2, as the power of
attorney of the original owner.
1.5 Subsequently, on 30.07.2012, plaintiff No.1 and the original
owner instituted O.S. No.4722 of 2012 (‘first suit’) before the VIIth
Assistant Judge, City Civil Court, Chennai against defendant No.1
(in the second suit), seeking the relief of permanent injunction and
peaceful possession and enjoyment of:
i) property situated at Old Door No.23, Harrington Avenue,
subsequently at Door No.48, fifth avenue and presently Door
No.2, fifth avenue, Harrington road, Chetpet, Chennai-600031
(“Chennai property”, for the sake of convenience) (“Schedule
‘A’” therein); and
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ii) operation of the cash deposits, stocks, shared, debentures,
mutual fund deposit etc lying in A/c No.axcess plus
42710180701, 42710180698, 42705092018 with Standard
Chartered Bank, No.1, Rajaji Salai, Parrys, Chennai-600104
(“Schedule ‘B’” therein).
1.6 In the aforesaid suit, it was alleged that defendant No.1, by
intimidating the original owner as well as plaintiff No.1 in the
second suit and by exploiting their emotions, forced them to
execute some documents on 04.11.2011. Further, defendant No.1
compelled them to execute the settlement deed dated 04.11.2011,
settling the property described in Schedule ‘A’ therein to the son of
defendant No.1 after reserving life interest for plaintiff No.1.
1.7 During the pendency of the aforesaid first suit, the original
owner, M. Sokkalingam, passed away on 13.03.2013.
1.8 Subsequently, the appellant-plaintiffs herein (wife and the
daughters of plaintiff No.1 in the first suit) instituted O.S. No.2320
of 2013 (“second suit”) on 08.04.2013 before the trial court, seeking
a declaration that the Power of Attorney dated 04.11.2011,
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registered as Doc. No.724/2011 was illegal, null and void, and the
same was obtained by sheer misrepresentation, coercion, fraud
and undue influence together with all consequential acts and
deeds if any made on the strength of the power of attorney dated
04.11.2011 and for permanent injunction restraining the
defendant, his men, agents and servants from alienating the
Schedules ‘A’ and ‘B’ properties. Further, the plaintiffs also filed
I.A. No.6381/2013 under Order XXXIX Rules 1 and 2 of the Code
seeking an interim injunction, restraining the defendants from
alienating or encumbering the suit properties pending disposal of
the suit.
1.9 Subsequently, the respondent-defendants preferred I.A.
No.7712 of 2013 in the second suit under Order VII Rule 11 of the
Code seeking rejection of the plaint by contending that the said suit
was barred under Order II Rule 2 of the Code.
1.10 The trial court by common order dated 24.06.2013,
dismissed I.A. No.7712/2013 filed by the defendants being not
maintainable and allowed I.A. No.6381/2013 filed by the plaintiff,
granting temporary injunction against the defendants restraining
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alienation and encumbrance of the suit properties pending
disposal of the suit. It was held that the second suit was not barred
on account of Order II Rule 2 of the Code as the causes of action
and properties involved in the two suits were distinct and separate
and that the plaintiffs came to know about the General Power of
Attorney only after the written statement was filed by the defendant
No.1 in the first suit and at that juncture, the cause of action arose.
The trial court further doubted the manner in which the suit
properties had been settled through a third party i.e., defendant
No.2.
1.11 Being aggrieved, the defendants preferred C.R.P.(PD)
No.4472 of 2013 before the Madras High Court. By way of
impugned order dated 11.07.2019, the High Court allowed the
revision petition filed by the defendants and set aside the Trial
Court’s order in O.S. No.2320 of 2013 and thereby rejected the
plaint under Order VII Rule 11 of the Code. The Court observed
that upon perusal of the plaint in O.S. No.4722/2012, it was
apparent that the plaintiffs were aware of the execution of the
Power of Attorney dated 04.11.2011. It was further observed that
7
the cause of action for both the suits was one and the same and
that the plaintiffs were parties and privy to all the events, including
the oral settlement and subsequent execution of the Power of
Attorney. It was further held that the trial court deviated from its
jurisdiction by going into the aspect of why and for what purpose
the Power of Attorney was executed, brushing aside the fact that
the plaintiff Nos.2 and 3 were witnesses to the said document. The
High Court expressed that the trial court did not appreciate the
fact that plaintiff No.2 herself wrote a letter requesting the Sub-
Registrar, Periamet, to undertake a home visit to register the Power
of Attorney in favour of defendant No.2, and therefore she
subsequently could not be allowed to take a contradictory stand to
contend that she came to know about the Power of Attorney only
after filing of the written statement by defendant No.1 in the first
suit.
1.12 Being aggrieved, the appellants have preferred the present
civil appeal.
8
2. Before proceeding further, it is necessary to distill the
averments of the plaint in O.S. No.4722 of 2012 which is the first
suit and O.S. No.2320 of 2013 which is the second suit.
Averments of Plaint in O.S. No.4722 of 2012 (First Suit):
2.1 The plaintiffs in the said suit are the parents of the defendant
therein (defendant No.1 in the second suit). They averred that they
are residing at Door No.2, Vth Avenue, Harrington Road, Chennai-
600031; the property more fully described in Schedule ‘A’
thereunder which is the absolute property of plaintiff No.1 and he
is in continuous possession and enjoyment of the same. The
plaintiffs have three children, namely , two daughters and
defendant-son who is an advocate. The plaintiffs were residing in
Schedule ‘A’ property and their daughters are married and settled
in USA.
2.1.1 That their defendant-son had been insisting the plaintiffs to
part with all their properties including properties mentioned in
Schedules ‘A’ and ‘B’.
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2.1.2 That plaintiff No.2 was sick and bedridden most of the times
and the plaintiffs are helpless as they have to live in constant fear
and anxiety because of the intimidating tactics of the defendant
who was none other than their son. That the plaintiff No.2 has
several ailments and suffered from disorientation and had suffered
a heart attack in the month of July 2011 and was also hospitalized.
Instead of attending to his parents, the defendant - son has been
insisting on the plaintiffs parting with their properties. On
24.08.2011, the defendant physically assaulted and verbally
abused plaintiff No.2 for not settling the property on him.
2.1.3 That owing to the intimidation of the defendant, plaintiff
No.2 was forced to execute some documents on 04.11.2011 when
the Registrar took the thumb impression of the plaintiff No.2 on a
settlement deed dated 04.11.2011 settling Schedule ‘A’ property in
favour of defendant - son after reserving life interest in the said
property for plaintiff No.1. The defendant has also taken away the
original title deeds and documents from the house of the plaintiffs.
2.1.4 Further, the plaintiffs had valuable shares and securities
which they had liquidated and divided the amount by giving their
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two daughters a lesser amount as compared to the defendant-son
and a small balance was deposited in the bank account of plaintiff
No.1 for the last stages of their life. The plaintiffs are residing in
Schedule ‘A’ property therein and they do not have any
independent source of income except the interest income from the
bank account more fully described as Schedule ‘B’ in the plaint.
2.1.5 That the defendant was pestering the plaintiffs to change
the Schedule ‘B’ account into a joint account by including him as
a joint account holder along with the plaintiffs which the plaintiffs
were not willing to do so. That the plaintiffs were a respectable
family from Chettinad and therefore had not lodged any police
complaint.
2.1.6 It was also averred that the greed of the defendant had not
been satisfied with the settlement deed executed by compelling
plaintiff No.1 to part with properties such as 1.5 acres of land in
Ooty with the Bungalow and several valuable properties at
Pudukottai District belonging to plaintiff No.2. Hence, he was now
eyeing the bank account. That on 23.07.2012, the defendant
11
demanded plaintiff No.1 to include his name also in the bank
account.
2.1.7 The defendant was living in his own house at Mylapore and
the plaintiffs were residing in the Schedule ‘A’ property and even
according to the settlement deed dated 04.11.2011, plaintiff No.1
was entitled for life interest over the said property. However, the
defendant frequently visited the plaintiffs and bothered them
mentally affecting their peace and coming in the way of their
enjoyment of their property.
2.1.8 The cause of action arose when the defendant demanded
his parents to part with all their properties and a settlement deed
was executed on 04.11.2011 and later on 23.07.2012 when the
defendant came to the house and demanded the plaintiff to convert
the bank account into a joint account. Plaintiffs were entirely
dependent upon the interest yield from the bank account and the
plaintiffs were in constant fear of the defendant.
12
2.1.9 The plaintiffs sought the following reliefs (in the first suit):
a) Permanent injunction restraining the defendant, his men,
agents and servants from interfering with the plaintiffs
peaceful possession and enjoyment of the Schedule ‘A’
mentioned property;
b) Permanent injunction restraining the defendant, his men,
agents and servants from interfering with operation of
Schedule ‘B’ bank account;
c) Permanent injunction restraining the defendant against
exercising any undue influence, coercion, threat, blackmailing
against the plaintiff for transfer or opening of joint bank
account in respect of Schedule ‘B’ bank account;
d) To pay the cost of this suit; and
e) Grant such other relief the Court may deem fit and proper in
the circumstances of this case.
Averments in O.S. No.2320 of 2013 (Second Suit):
3. This suit has been filed by the widow of late M. Sokkalingam
as plaintiff No.1 and their two daughters as plaintiff Nos.2 and 3
13
against defendant No.1 who is the son of late M. Sokkalingam and
defendant No.2 who is his power of attorney holder.
3.1 According to the plaintiffs, M. Sokkalingam died intestate on
13.03.2013 leaving the plaintiffs and defendant No.1 to jointly
inherit the properties. Defendant No.2 was the friend of defendant
No.1 who has acted as the power agent of late M. Sokkalingam
under an illegal and invalid power of attorney deed dated
04.11.2011 which is challenged.
3.2 That M. Sokkalingam had heart and kidney ailments and was
suffering from diabetes and other ailments. He had undergone
knee and heart surgeries and had been hospitalized for a number
of months and was in altered state of consciousness from mid 2010
to February, 2012. Often he would be disoriented and later gain
his consciousness after some interval. Around October 2011 to
December, 2011, the problem became acute when he had altered
levels of consciousness for two to three months. He was
hospitalized in the month of July 2011 due to heart attack. That
late M. Sokkalingam and plaintiff No.1 were residing at Door No.2,
Vth Avenue, Harrington Road, Chennai–600031 and plaintiff Nos.2
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and 3, being their daughters were married and settled in the United
States of America and they used to visit their parents now and
then. Defendant No.1, who is the son, has been greedy and money-
minded and insisted plaintiff No.1 and her husband to part with
all the properties to the exclusion of his two sisters. Defendant No.1
has been adopting a hostile attitude and tactics to take control of
all the properties of his father by blackmailing and threatening that
he would commit suicide if all the properties were not conveyed to
him. That plaintiff No.1 and her husband were stripped of all their
moveable and immoveable properties except the amount lying in
the bank account of plaintiff No.1 in Standard Chartered Bank,
Chennai. That defendant No.1 was continuously pestering plaintiff
No.1 and her husband to convert the said bank account into a joint
bank account by including his name and by frequently calling the
officials of the Standard Chartered Bank by giving unnecessary
instructions to convert the bank account into a joint account but
the account holders being the parents of defendant No.1 were not
willing to do so. Hence, they filed O.S. No.4722 of 2012 (first suit)
on the file of the VIIth Assistant City Civil Court, Chennai seeking
15
the relief for permanent injunction against defendant No.1 from
interfering with their possession of the property and the bank
account. The said suit is still pending. That the parents of
defendant No.1 had to live in constant fear and anxiety because of
the intimidating tactics of defendant No.1 who is none other than
their own son.
3.3 That plaintiff No.1 is a heart patient and her husband was
also a heart patient and defendant No.1, instead of lending any
help and being of solace to them was insisting on them for parting
with their properties. That on one occasion dated 24.08.2011,
defendant No.1 came home at around 08:00 PM and physically
assaulted and verbally abused the handicapped father for not
settling the properties on him. Considering the reputation of the
family, no criminal complaint was lodged. That defendant No.1 by
intimidating plaintiff No.1 and her husband (M. Sokkalingam)
forced them to execute some documents on 04.11.2011 when her
husband was in a semi-conscious state of mind. The Registrar was
brought to the house and the thumb impression of M. Sokkalingam
was obtained by force. He was thus compelled to execute the
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settlement deed dated 04.11.2011 setting the property described
in Schedule ‘A’ in the said plaint to the defendant after reserving
the life interest for the plaintiff No.1. Defendant No.1 has also taken
away all the original title deeds and documents of the Schedule
mentioned properties from the house of the plaintiffs even earlier.
3.4 That on 04.11.2011, defendant No.1 got the thumb
impression of M. Sokkalingam without his knowledge on various
papers and the signatures of the plaintiff Nos. 2 and 3 were also
obtained on various papers as witnesses to the documents in which
thumb impression of M. Sokkalingam were obtained by force, fraud
and without his knowledge since at that time he was in a semi-
conscious state of mind. That the rude behaviour and inexorable
greed of defendant No.1 prompted plaintiff No.1 and her husband
to file the suit i.e. O.S. No.4722 of 2012 (first suit) to allay their
immediate apprehension. That M. Sokkalingam made an inquiry
with the help of plaintiff Nos.2 and 3 herein in the Registrar’s office
about any document alleged to have been executed by him on
04.11.2011, when the Registrar visited the house of plaintiff No.1
for the purpose of the execution of the settlement deed. It is to the
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utter shock and dismay the power of attorney dated 04.11.2011,
bearing Document No.724 of 2011 on the file of Sub-Registrar’s
office (SRO), Periamet in favour of defendant No.2 was brought to
his notice. M. Sokkalingam had instructed his counsel to prepare
the case to declare the power of attorney dated 04.11.2011 on the
file of SRO, Periamet as invalid but before the suit could be
instituted he died.
3.5 That defendant No.1 was not invited by his father (M.
th
Sokkalingam) for his 80 birthday and his father wanted his wife
to perform his last rites but defendant No.1 ultimately performed
his last rites.
3.6 Defendant No.2 was stated to be appointed as the power agent
of M. Sokkalingam to execute the settlement deed in favour of
defendant No.1. That, M. Sokkalingam during the said period was
in a semi-conscious state of mind and defendant No.1 had
threatened and coerced all the family members to put signature on
the documents. That M. Sokkalingam never intended to settle the
Schedules ‘A’ and ‘B’ properties upon defendant No.1 as the
relationship between them was not cordial; rather was very much
18
strained. That the father was beaten by his son-defendant No.1 and
there was no love and affection between them.
3.7 That, M. Sokkalingam was a reputed member of the Chettiar
Community having trustworthy friends and relatives and there was
no occasion for him to choose defendant No.2, who is an advocate
and friend of defendant No.1 as the power agent for the execution
of the settlement deed. If at all, any such document had to be
executed by M. Sokkalingam, it would have been done so at
Chennai by appointing power agent to present the settlement deed
for registration. That the power of attorney dated 04.11.2011,
bearing Document No.724 of 2011 on the file of SRO, Periamet is
per se illegal and void and the same was executed by fraud,
coercion and further as the executant at the time of the execution
was not in a sound state of mind. Therefore, any consequential act
on the strength of the said power of attorney is also illegal and
invalid. That defendant No.1 is not entitled to have any absolute
right over the suit properties.
3.8 That the cause of action for the suit arose when M.
Sokkalingam died intestate on 13.03.2013 leaving the plaintiffs
19
and the defendant No.1 to jointly inherit the properties. On
04.11.2011, when M. Sokkalingam was in a semi-conscious state
of mind, was compelled to put his thumb impression on some
documents. Hence, the plaintiffs sought following reliefs:
a) Declare the Power of Attorney deed dated 04.11.2011
registered as Doc. No.724 of 2011 on the file of SRO, Periamet,
Chennai–600003 as illegal, null and void and the same is
obtained by sheer misrepresentation, coercion, fraud and
undue influence together with all consequential acts and deeds
if any made on the strength of the power of attorney dated
04.11.2011;
b) Permanent injunction restraining the defendant, his men,
agents and servants from alienating the Schedules ‘A’ and ‘B’
properties;
c) Grant such other relief as deemed fit and proper under the
circumstances of the case; and
d) To pay the cost of the suit.
20
Order VII Rule 11 of the Code:
4. Since the issue in this appeal pertains to the correctness or
otherwise of the impugned order granting rejection of the plaint, at
this stage, we deem it necessary to extract Order VII Rules 11 and
13 of the Code which deal with the grounds for rejection of a plaint,
as under:
“11. Rejection of plaint. - The plaint shall be rejected in
the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails
to do so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of
rule 9:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court,
21
for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature
for correcting the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed
by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff.
xxx xxx xxx
13. Where rejection of plaint does not preclude
presentation of fresh plaint. —The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of
its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action.”
4.1 In the instant case, an application was filed under Order VII
Rule 11(d) of the Code where the ground of rejection of the plaint
was that the suit appears from the statement in the plaint to be
barred by any law. In this regard, various decisions of this Court
with regard to rejection of plaint under Order VII Rule 11 of the
Code could be discussed as follows:
a) In T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467 ,
this Court while examining the aforesaid provision held that
the trial court must remember that if on a meaningful and not
a formal reading of the plaint it is manifestly vexatious and
meritless in the sense of not disclosing a clear right to sue, it
22
should exercise the power under Order VII Rule 11 of the Code
taking care to see that the ground mentioned therein is
fulfilled. If clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first hearing by
examining the party searchingly under Order X of the Code.
b) The object of the said provision was laid down by this Court in
Sopan Sukhdeo Sable vs. Assistant Charity
Commissioner , (2004) 3 SCC 137. Similarly, in Popat and
Kotecha Property vs. State Bank of India Staff
Association, (2005) 7 SCC 510 , this Court has culled out the
legal ambit of Order VII Rule 11 of the Code.
c) It is trite law that not any particular plea has to be considered,
but the whole plaint has to be read. As was observed by this
Court in Roop Lal Sathi vs. Nachhattar Singh Gill, (1982)
3 SCC 487 , only a part of the plaint cannot be rejected and if
no cause of action is disclosed, the plaint as a whole must be
Raptakos Brett & Co. Ltd. vs. Ganesh
rejected. Similarly, in
Property, (1998) 7 SCC 184, it was observed that the
averments in the plaint as a whole have to be seen to find out
23
whether clause (d) of Order VII Rule 11 of the Code is
applicable.
d) It was further held with reference to Order VII Rule 11 of the
Code in Saleem Bhai vs. State of Maharashtra, (2003) 1
SCC 557 that the relevant facts which need to be looked into
for deciding an application thereunder are the averments in
the plaint. The trial court can exercise the power at any stage
of the suit i.e. before registering the plaint or after issuing
summons to the defendant at any time before the conclusion
of the trial. For the purposes of deciding an application under
clauses (a) and (d) of Order VII Rule 11 of the Code, the
averments in the plaint are germane and the pleas taken by
the defendant in the written statement would be wholly
irrelevant at that stage.
e) In R.K. Roja vs. U.S. Rayudu , (2016) 14 SCC 275 , it was
reiterated that the only restriction was that the consideration
of the application for rejection should not be on the basis of
the allegations made by the defendant in his written statement
or on the basis of the allegations in the application for rejection
24
of the plaint. The court has to consider only the plaint as a
whole and in case the entire plaint comes under the situations
covered by Order VII Rules 11(a) to (f) of the Code, the same
has to be rejected.
f) In Kuldeep Singh Pathania vs. Bikram Singh Jaryal,
(2017) 5 SCC 345 , this Court observed that the court can only
see whether the plaint, or rather the pleadings of the plaintiff,
constitute a cause of action. Pleadings in the sense where, even
after the stage of written statement, if there is a replication
filed, in a given situation the same also can be looked into to
see whether there is any admission on the part of the plaintiff.
In other words, under Order VII Rule 11 of the Code, the court
has to take a decision looking at the pleadings of the plaintiff
only and not on the rebuttal made by the defendant or any
other materials produced by the defendant.
g) In an application under Order VII Rule 11 of
the Code, a plaint cannot be rejected in part. This principle is
well established and has been continuously followed since the
1936 decision in Maqsud Ahmad vs. Mathra Datt & Co. AIR
25
1936 Lah 1021 . This principle is also explained in another
decision of this Court in Sejal Glass Ltd. vs. Navilan
Merchants Private Ltd., (2018) 11 SCC 780 which was again
followed in Madhav Prasad Aggarwal vs. Axis Bank Ltd .,
(2019) 7 SCC 158 .
h) In Sri Biswanath Banik vs. Sulanga Bose, (2022) 7 SCC
731 , this Court discussed the issue regarding the suit being
barred by limitation or not and observed that at that stage,
what is required to be considered are the averments in the
plaint. Only in a case where on the face of the plaint, it is seen
that the suit is barred by limitation, then and only then a plaint
can be rejected under Order VII Rule 11(d) of the Code on the
ground of limitation. At that stage what is required to be
considered is the averments in the plaint. For the aforesaid
purpose, the Court has to consider and read the averments in
the plaint as a whole.
Order II Rules 1 and 2 of the Code:
5. Order II Rules 1 and 2 of the Code are extracted as under:
26
“Order II – Frame of Suit: -
1. Frame of suit.— Every suit shall as far as
practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent
further litigation concerning them.
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.
Explanation.— For the purposes of this rule an obligation
and a collateral security for its performance and
successive claims arising under the same obligation shall
be deemed respectively to constitute but one cause of
action.”
5.1 Order II of the Code deals with frame of suit. Order II Rule 1
states that every suit shall as far as practicable be framed so as to
afford ground for final decision upon the subjects in dispute and
to prevent further litigation concerning them. Thus, the
27
fundamental aim of Order II Rule 1 is to avoid multiple suits which
may be founded on the same cause of action or may be relating to
the same subject-matter. Similarly, Order II Rule 2 of the Code
elaborates the objective of Order II Rule 1 thereof by stating the
suit to include the whole claim and deals with the consequences of
relinquishment of a part of claim and omission to sue for one of
several reliefs. The object of Order II Rule 2 is also to avoid
multiplicity of suits. This is because the litigant who does not
include all the grounds available to him on the subject in dispute
in one suit and institutes several suits against the same parties on
the same subject in dispute, would abuse the process of the Court.
5.2 The difference between Order II Rule 1 and Order II Rule 2 of
the Code is, that in Order II Rule 1, the phrase used is “subjects in
dispute” whereas in Order II Rule 2, the phrase used is “cause of
action”. Secondly, Order II Rule 2 provides that failure of a plaintiff
to abide by the mandate of the said Rule results in the plaintiff
being debarred from instituting a fresh suit for that claim.
However, Rule 1 does not provide for the consequences that will
result for non-compliance except possibly under Order VII Rule
28
1(a). Thus, under Order II Rule 2, the bar is with regard to the right
to sue in the context of relinquishment of a part of the claim and
omission to sue for one of several reliefs [Order II Rule 2 (sub-rules
(2) and (3)].
5.3 Where a person is entitled to more than one relief in respect
of the same cause of action, he may sue for all the reliefs or he may
sue for one or more of them and reserve his right with the leave of
the court to sue for the rest. It is only when more than one relief is
claimed under a particular cause of action sued on, that the
plaintiff can reserve one or some of them with the leave of the court.
5.4 It is for the defendant who raises the plea of bar under Order
II Rule 2 of the Code to establish that:
(i) the subsequent suit was in respect of the same cause of action
on which the earlier suit was based;
(ii) in respect of such a cause of action the plaintiff was entitled to
more than one relief; and
(iii) without the leave of the court he had omitted to claim such a
relief in the earlier suit, claimed by him thereafter in the
29
subsequent suit [ B. Shambumal vs. State Bank of Mysore,
AIR 1971 Mys. 156 ].
However, if the right to relief in respect of which a further suit
is brought did not exist at the date of institution of the former suit,
the subsequent suit is not barred [ State of Uttar Pradesh vs.
Mool Chand, AIR 1972 All. 413 ].
5.5 While filing the first suit, if the plaintiff reserves his right with
the leave of the court to sue for the rest of the reliefs then he can
file a second suit for the remaining reliefs. On the other hand, if no
such leave is obtained, he will be precluded from afterwards suing
for any relief so omitted. Certain judgments of this Court could be
referred to only in the context of rejection of the plaint under Order
VII Rule 11(d) of the Code later as the controversy in the present
case is in the above context.
5.6 Order II Rule 2 of the Code deals with the reliefs sought in a
suit by the plaintiff in respect of a cause of action. Order II Rule
2(1) thereof states that 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
30
order to bring the suit within the jurisdiction of any court. Order II
Rule 2(2) of the Code states that 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. Order II Rule 2(3) of the Code states that 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, to sue
for all such reliefs, except with the leave of the court, he shall not
afterwards sue for any relief so omitted.
5.7 The expression “same cause of action” is significant. On the
basis of a cause of action, if a plaintiff is entitled to several reliefs
but he omits to sue for all such reliefs, he is forbidden to sue for
such relief unless he has reserved his right to sue thereafter by a
separate suit. The object of Order II Rule 2 of the Code is based on
the principle that the defendants should not be vexed twice for the
same cause of action which is a principle akin to the principle of
res judicata . Therefore, there cannot be splitting of claims and
splitting of remedies which arise on the same cause of action.
Secondly, the principle applies between the same parties.
31
Therefore, the test is the identity of cause of action for the principle
under Order II Rule 2 of the Code to be applied. If a cause of action
enables the person to ask for larger and wider reliefs and if the
plaintiff limits his claim, then subsequently, he cannot seek the
remaining reliefs by filing fresh proceedings.
5.8 However, it is necessary to bear in mind that it is not
incumbent that the suit should include all the reliefs even though
the cause of action has not arisen for seeking certain reliefs
inasmuch as a suit may be filed for an appropriate relief and if a
subsequent cause of action arises additional reliefs could be
sought by filing a subsequent suit. Thus, in order to apply Order II
Rule 2 of the Code, the earlier suit should have been founded on
the same cause of action on which the subsequent suit is based
and if, in the earlier suit, the plaintiff had omitted to sue in respect
of or intentionally relinquished any portion of his claim, he will not
subsequently be entitled to sue in respect of the portion of his claim
so omitted or relinquished.
5.9 The tests for determining whether Order II Rule 2 of the Code
would apply in a particular case is, whether, the relief sought in
32
the second suit or the subsequent suit is, in fact, founded upon a
cause of action distinct from that which was the foundation for the
former suit. If the answer to this question is in the affirmative, then
the bar under Order II Rule 2 of the Code would not apply.
Therefore, if there are different causes of action arising even out of
the same transaction, the plaintiff is not obliged to bring a suit with
regard to all of them. Similarly, when the cause of action on the
basis of which the earlier suit was brought, does not form the
foundation for the subsequent suit and in the earlier suit, the relief
sought in the subsequent suit could not have been claimed, then,
the subsequent suit is not barred. Thus, the applicability of the bar
under Order II Rule 2 of the Code revolves on the meaning to be
given to the expression ‘cause of action’.
5.10 In Mohammad Khalil Khan vs. Mahbub Ali Mian, 1948
SCC OnLine PC 44 (“Mohammad Khalil Khan”), the Privy
Council noted that the expression ‘cause of action’ has not been
legislatively defined in any enactment but observed that the said
expression means every fact which would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the
33
judgment of the court. That, the expression ‘cause of action’ does
not comprise every piece of evidence and has no relation
whatsoever to the defence that may be set up by the defendant but
it references to the media upon which plaintiff requests the court
to arrive at a conclusion in his favour.
5.11 In Mohammad Khalil Khan, it was observed that what
would constitute the cause of action in a suit must always depend
upon the particular facts of the case. Further, in order to determine
the question whether cause of action in the two suits is the same
or not, one of the tests that could be applied is, whether, the same
evidence would support the claims in both suits; if the evidence
required to support the claims is different, then the causes of
action are also different. In the said case, the following principles
were laid down after discussing a number of judicial precedents on
the applicability of Order II Rule 2 of the Code in the following way:
“The principles laid down in the cases thus far discussed
may be thus summarised:—
(1) The correct test in cases falling under O. 2, R. 2, is
“whether the claim in the new suit is in fact founded upon
a cause of action distinct from that which was the
foundation for the former suit.” [ Moonshee Buzloor
34
Ruheem v. Shumsunnissa Begum, (1867) 11 Moo. I.A.
551, 605 ].
(2) The cause of action means every fact which will be
necessary for the Plaintiff to prove if traversed in order to
support his right to the judgment. [ Read v. Brown, (1888)
22 Q.B.D. 128, 131 ].
(3) If the evidence to support the two claims is different,
then the causes of action are also different.
[ Brunsden v. Humphrey, (1884) 14 Q.B.D. 141, 146 ].
(4) The causes of action in the two suits may be
considered to be the same if in substance they are
identical. [ Brunsden v. Humphrey, (1884) 14 Q.B.D. 141,
146 ].
(5) The cause of action has no relation whatsoever to the
defence that may be set up by the Defendant nor does it
depend upon the character of the relief prayed for by the
Plaintiff. It refers… to the media upon which the Plaintiff
asks the Court to arrive at a conclusion in his favour.
[ Mst. Chand Kour v. Partab Singh, (1888) L.R. 15 I.A. 156,
157 ]. This observation was made by Lord Watson in a
case under S. 43 of the Act of 1882 (corresponding to O.
2, R. 2) where Plaintiff made various claims in the same
suit.”
5.12 Recently, in Cuddalore Powergen Corporation Ltd. vs.
Chemplast Cuddalore Vinyls Limited, 2025 SCC OnLine 82,
this Court speaking through Pardiwala J. observed in paragraph
47 as under:
35
“47. On a conspectus of the aforesaid discussion, what
follows is that:
i. The object of Order II Rule 2 is to prevent the
multiplicity of suits and the provision is founded on
the principle that a person shall not be vexed twice for
one and the same cause.
ii. The mandate of Order II Rule 2 is the inclusion of the
whole claim arising in respect of one and the same
cause of action, in one suit. It must not be
misunderstood to mean that all the different causes of
action arising from the same transaction must be
included in a single suit.
iii. Several definitions have been given to the phrase
“ cause of action ” and it can safely be said to mean -
“ every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the
judgment of the Court ”. Such a cause of action has no
relation whatsoever to the defence that may be set up
by the defendant, nor does it depend upon the
character of the relief which is prayed for by the
plaintiff but refers to the media upon which the
plaintiff asks the Court to arrive at a conclusion in his
favour.
iv. Similarly, several tests have been laid out to determine
the applicability of Order II Rule 2 to a suit. While it is
acknowledged that the same heavily depends on the
particular facts and circumstances of each case, it can
be said that a correct and reliable test is to determine
whether the claim in the new suit is in fact founded
upon a cause of action distinct from that which was
the foundation of the former suit. Additionally, if the
evidence required to support the claims is different,
then the causes of action can also be considered to be
different. Furthermore, it is necessary for the causes
36
of action in the two suits to be identical in substance
and not merely technically identical.
v. The defendant who takes shelter under the bar
imposed by Order II Rule 2(3) must establish that (a)
the second suit was in respect of the same cause of
action as that on which the previous suit was based;
(b) in respect of that cause of action, the plaintiff was
entitled to more than one relief; and (c) being thus
entitled to more than one relief, the plaintiff, without
any leave obtained from the Court, omitted to sue for
the relief for which the second suit had been filed.
vi. The defendant must also have produced the earlier
plaint in evidence in order to establish that there is an
identity in the causes of action between both the suits
and that there was a deliberate relinquishment of a
larger relief on the part of the plaintiff.
vii. Since the plea is a technical bar, it has to be
established satisfactorily and cannot be presumed
merely on the basis of inferential reasoning.”
(Underlining by us)
On a reading of the above, what emerges is that the
defendant must establish that the second suit was in respect of the
same cause of action on which the previous suit was based. The
defendant must produce the plaint in the earlier suit in evidence
in order to establish that there is an identity in the causes of action
between the two suits and there was a deliberate relinquishment
of a larger relief on the part of the plaintiff. The defendant in a suit
37
must establish satisfactorily the issue and the technical bar cannot
be presumed merely on the basis of an inferential reasoning.
5.13 Bar to sue is distinct from a suit being barred by any law.
In the former, a suit cannot be commenced at all and, therefore,
would have to be dismissed on the application of Order II Rule 2 of
the Code, while in the latter case, a suit can be commenced but is
not entertainable owing to a bar in law. Under Order II Rule 2, a
suit can be dismissed after recording evidence depending upon the
facts and circumstances of the case and on the analysis of the
cause of action in a former suit and a subsequent suit. In the case
of rejection of a plaint, recording of evidence on the bar to file a suit
may not be necessary in all circumstances. It all depends on the
nature of the bar.
5.14 To sue, according to Webster Dictionary, is “to seek justice
or right by legal process”. According to Strouds’ Judicial
Dictionary, (Fifth Edition, p.2540) the words “to sue” is said to have
meaning generally speaking, ‘of bringing action’. Thus, the word
‘sue’ means to institute or commence a proceeding and has
reference to the point of time when the suit is instituted and not to
38
any subsequent stages of the suit. The word ‘sue’ means to take
any legal proceedings in accordance with the provisions of the
Code.
5.15 Thus, the right to sue is circumscribed by what is stated
under Order II Rules 1 and 2 of the Code. Order II Rule 2(1) states
that 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 the court. With regard to
relinquishment of part of the claim and omission to sue for one of
several reliefs, the consequences are stated in sub-rules (2) and (3)
of Order II Rule 2 of the Code. Thus, under the said sub-rules the
right to sue in respect of relinquishment of a claim or omitted
reliefs in the absence of conditions occurring therein would not
arise. Therefore, sub-rules (2) and (3) of Order II Rule 2 deal with
claims and reliefs.
5.16 Further, on a comparative analysis of the plaint in the first
suit and the second suit, the following aspects have to be
considered:
39
(i) Whether parties and their privies are the same in the
two suits?
(ii) Whether the cause of action in the two suits is
identical or distinct?
(iii) Whether the subject matters of the two suits are
different?
(iv) Any such other point of identity or distinction.
5.17 Turning to Order VII Rule 11 (d), it deals with rejection of
plaint and not the right to sue being barred. A rejection of a plaint
is as per clauses (a) to (f) mentioned in Order VII Rule 11. Order VII
Rule 11 (d) states that the plaint shall be rejected where the suit
appears from the statement in the plaint to be barred by any law.
Therefore, the crucial words are, the filing of the suit being barred
by any law. The issue, whether the suit is barred by any law has to
be determined from the statement in the plaint. The expression
“statement in the plaint” would mean not only a meaningful
reading of the averments in the plaint but also a meaningful
reading of the documents appended to the plaint. Thus, it is on a
meaningful reading of the plaint and the annexed documents, the
suit should appear to be barred by any law. Hence, the written
statement or any other document cannot be taken into
40
consideration in order to ascertain whether the suit is barred by
any law.
5.18 When the expression “barred by any law” is read in
juxtaposition with Order II Rule 2 of the Code, it is already noted
that Order II Rule 2 does not bar the filing of any suit but sub-rules
(2) and (3) forbids the suing for certain claims which have been
relinquished or certain reliefs which have been omitted to sue in
the earlier suit in respect of which a plaintiff cannot sue for those
claims or reliefs by filing a subsequent suit.
5.19 On the other hand, the bar to filing of any suit in law under
Order VII Rule 11(d) is distinct. The law must bar the filing of a suit
either by an express bar or by an implied bar. An example of an
express bar of a suit is in Section 34 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short, “SARFAESI Act, 2002”) which reads
as under:
34. Civil court not to have jurisdiction.—
“ No civil court
shall have jurisdiction to entertain any suit or proceeding
in respect of any matter which a Debts Recovery Tribunal
or the Appellate Tribunal is empowered by or under this
Act to determine and no injunction shall be granted by any
41
court or other authority in respect of any action taken or
to be taken in pursuance of any power conferred by or
under this Act or under the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (51 of 1993).”
If Section 34 of the SARFAESI Act, 2002 applies in a case,
then, such a suit is barred in law. If on a meaningful reading of the
plaint a suit is barred in law, then the plaint itself has to be
rejected. In other words, the suit can be filed but the plaint has to
be rejected for reasons enumerated in Order VII Rule 11 of the Code
such as the suit being barred by any law. When a plaint is rejected,
a fresh suit could be filed only in terms of Order VII Rule 13 which
is extracted above. The said provision would however not apply, if
there is absence of a cause of action, the suit is hit by limitation or
on the principle of or is otherwise barred by law.
res judicata
5.20 As opposed to the above, under Order II Rule 2 of the Code,
the right to sue is taken away in terms of sub-rules (2) and (3)
thereof which means that the suit could not have been filed at all.
On the other hand, under Order VII Rule 11(d), there is “no bar to
sue” but “the suit is barred by law from being filed”. There is a
42
subtle but distinct difference between the two. If the conditions
under sub-rules (2) and (3) of Order II Rule 2 of the Code are
satisfied in a case, it would be a case of there being a curtailment
of the right to sue for the claims relinquished or omitted in the
earlier suit. It is not a case where the plaint has to be rejected as it
is barred by the provision of Order II Rule 2 [sub-rules (2) and (3)].
In other words, the application of Order II Rule 2 of the Code to a
case can result in rejection of reliefs being granted to a plaintiff
which may, in certain cases, also result in dismissal of the suit
itself. But it does not result in rejection of the plaint under Order
VII Rule 11 (d) of the Code.
5.21 We think that in a case where Order II Rule 2 of the Code
applies, there is no legal bar to filing a suit but the reliefs sought
for or the claims made therein cannot be granted if the conditions
mentioned therein apply. For arriving at such a conclusion, there
has to be evidence let in in order to determine whether the
provision of Order II Rule 2 would apply to the suit or not. On the
other hand, in the case of Order VII Rule 11(d), if there is express
or implied bar for filing of a suit under any law then on a
43
meaningful reading of the plaint, it has to be rejected. The suit need
not proceed to record evidence on merits but only to the extent
where evidence is necessary to be recorded for the purpose of
rejection of the plaint such as on the ground of the suit being bit
by law of limitation or on the principle of res judicata . Thus, the
bar created by any law to the filing of a suit is different from a
plaintiff suing for certain claims or reliefs which he could not have
claimed or sued having regard to Order II Rule 2 of the Code.
Therefore, in our view, the application of Order II Rule 2 cannot be
construed to be a ground for rejection of the plaint under Order VII
Rule 11(d) of the Code.
6. The judgments relied upon by learned senior counsel for the
respondent have mainly dealt with Order II Rule 2 of the Code. We
refer to the two judgments which deal in the context of Order II
Rule 2 as well as Order VII Rule 11 of the Code.
6.1 In the case of N.V. Srinivasa Murthy vs. Mariyamma
(Dead) by proposed LRs , (2005) 5 SCC 548
, the facts were that
the appellant-plaintiff therein had earlier filed a suit bearing Civil
Suit No.557/1990 seeking the relief of permanent injunction
44
against the defendants from interfering with the possession and
enjoyment of scheduled lands. A subsequent suit was filed on
26.08.1996, by the very same plaintiff against the defendant
seeking a declaration that the registered sale deed dated
05.05.1953 was a loan transaction and also sought for permanent
injunction and specific performance of the oral agreement of
reconveyance of the property by a registered instrument.
6.1.1 In the said plaint it was contended that the father of the
plaintiffs had incurred some debts and had therefore borrowed a
sum of Rs. 2000 from the predecessor-in-title of the defendants. By
way of security for the loan advanced, a registered sale deed was
executed on 05.05.1953 with an oral agreement that on return of
the borrowed sum with interest, a registered reconveyance deed
shall be executed in favour of the borrower. Thereafter, the
defendant executed receipts in favour of the plaintiff,
acknowledging the return of loan amount. However, it was alleged
that the defendants made an attempt to interfere with the plaintiffs’
possession and enjoyment of the suit lands. Answering the issue
of whether the subsequent suit was barred under Order II Rule 2
45
of the Code, this Court observed that whatever relief the plaintiffs
desired to claim from the civil court on the basis of averment with
regard to the registered sale deed of 1953 could and ought to have
been claimed in original Civil Suit No. 557 of 1990 which was
pending at that time and therefore it was held that the second suit
claiming indirectly relief of declaration and injunction was barred
by Order II Rule 2 of the Code. It was held that the plaint in the
subsequent suit was liable to be rejected, if not on the ground that
it does not disclose “cause of action”, on the ground that from the
averments in the plaint, the suit was barred by law within the
meaning of clause ( d ) of Order VII Rule 11 of the of the Code.
6.1.2 In the aforesaid case, the issue of suit being barred by
limitation was accepted as the registered sale-deed dated
05.05.1953 was the basis for instituting the suit by taking recourse
to orders passed in the mutation proceedings by the Revenue
Courts. Hence, it was stated that on a critical examination of the
plaint, the suit was clearly barred on the facts stated in the plaint
itself. In the above context, it was also observed that the second
suit indirectly claimed the relief of declaration and injunction, and
46
hence it was apparently barred by Order II Rule 2 of the Code.
What primarily impressed this Court in the aforesaid case was the
fact that the second suit was barred by the law of limitation and
hence Order VII Rule 11(d) of the Code applied.
6.2 In State Bank of India vs. Gracure Pharmaceuticals
Ltd., (2014) 3 SCC 595-602, respondent-plaintiffs therein had
availed of various credit facilities from the appellant-defendant
bank therein. The plaintiffs had an export order from M/s
Medipharma Company, France, which had opened two letters of
credit (for short, “LCs”)- one was opened with Credit du Nord Paris
(for short, “CDN”) and another was opened with BNP-Paribas S.A,
Ivry-Sur-Seine (for short, “BNP”). The date of issue of the first LC
by CDN was 16.01.2001 and it was to expire on 10.04.2001.
Similarly, a second LC opened with BNP was issued on 16.01.2001
and was to expire on 30.04.2001. The proceeds of the export deal
were paid by the appellant bank honouring the bills of exchange
against the LC opened with CDN and BNP and credited the same
to the account of the respondent-plaintiffs therein subject to
realisation of the Letter of Credit (“LCs”). Since the amounts of the
47
LCs were not received with the issuing bank, the amounts were
debited to the account of the respondent on account of non-receipt
of the LCs. The Bank sent various letters to the respondent to
regularise the accounts. Since the accounts were not regularised,
the appellant-bank decided not to grant further facility. The
closure of the account was done on 20.03.2002 due to the fault of
respondent-plaintiffs therein on non-regularisation of their
accounts i.e. after non-receipt of payment of the LCs, the account
became irregular and remained so continuously. Plaintiffs therein
filed the first suit dated 15.05.2003 before the High Court seeking
recovery of Rs.44,30,994 with interest, alleging wrongful debits
relating to the LCs. Subsequently, a second suit dated 21.05.2003
was filed before the District Court seeking damages of ₹ 3,09,000
with interest, alleging wrongful withdrawal of credit facilities by the
bank. This Court held that both suits arose from the same cause
of action, the relief claimed in the second suit could have been
claimed in the first suit, and therefore the second suit was barred
under Order II Rule 2 of the Code. It was observed that the facts,
on the basis of which the subsequent suit was filed, existed on the
48
date on which the earlier suit was filed. The earlier suit was filed
on 15.03.2003, and the subsequent suit was filed on 21.05.2003.
No fresh cause of action arose between the first suit and the second
suit. The closure of the account, as already indicated, was
intimated on 20.03.2002 due to the alleged fault of the respondent
– plaintiff therein in not regularising their accounts, i.e. after non-
receipt of payment of LC, the account became irregular. When the
first suit for recovery of dues was filed, i.e. on 15.03.2001 for
alleged relief, damages sought for in the subsequent suit could
have also been sought for. It was therefore held that the respondent
had omitted certain reliefs which were available to it at the time of
filing of the first suit and after having relinquished the same, it
could not have filed a separate suit in view of the provisions of sub-
rule 2 of Order II Rule 2 of the Code.
6.2.1 In this case, it was observed that the earlier suit was filed
on 15.03.2003 and the subsequent suit was filed on 21.05.2003
and there was no fresh cause of action which arose between the
first and the second suit. Therefore, the respondent therein was
not entitled to split the cause of action into parts by filing separate
49
suits. However, it is necessary to note that although Order II Rule
2 of the Code may have been applied to the facts of the said case,
the plaint was not rejected under Order VII Rule 11(d) thereof as
such but possibly under Order VII Rule 11(a) of the Code as in
paragraph 17, it was noted by this Court as under:
“17. When we go through the abovequoted paragraph it
is clear that the facts on the basis of which the subsequent
suit was filed, existed on the date on which the earlier suit
was filed. The earlier suit was filed on 15.03.2003 and
subsequent suit was filed on 21.05.2003. No fresh cause
of action arose in between the first suit and the second
suit. The closure of account, as already indicated, was
intimated on 20.03.2002 due to the alleged fault of the
respondent in not regularising their accounts i.e. after
non-receipt of the payment of the LC, the account became
irregular. When the first suit for recovery of dues was filed
i.e. on 15.03.2001 for alleged relief, damages sought for in
the subsequent suit could have also been sought for.”
(Underling by us)
Therefore, the aforesaid two decisions of this Court could be
distinguished from the facts applicable to the present case.
7. A juxtaposition of the above discussion with the discussion
for rejection of a plaint under Order VII Rule 11(d) of the Code must
be made. On a conjoint reading of Order II Rule 2 with Order VII
Rule 11(d) of the Code, it emerges that the plea under Order II Rule
2 of the Code cannot be a basis or a ground for rejection of the
50
plaint. In other words, it is for the defendant to establish by way of
evidence, the bar of the subsequent suit under Order II Rule 2 of
the Code filed by the very same plaintiff. In such an event, on a
comparative analysis of the plaint filed in the first suit and the
plaint filed in the second suit, if the Court comes to the conclusion
that the second suit was filed on an identical cause of action which
led to the filing of the first suit and there was an omission to make
the claim or to reserve the reliefs to be claimed in the first suit in a
subsequent suit, then the bar under Order II Rule 2 of the Code
would apply to the subsequent suit or the second suit. Then the
claims or reliefs not maintainable would be rejected as the plaintiff
could not have sued for those reliefs by filing a second suit,
although technically, the filing of such a suit was not barred by
any law. On the other hand, if the cause of action for filing the
second suit is totally distinct from the cause of action from filing
the first suit and the reliefs claimed are distinct, subject-matter of
the suits are different and if the parties to the suit are also different
then in such a case, the plea under Order II Rule 2 of the Code
would not arise at all. The above are, inter alia, the heads of
51
distinction to be analysed while analysing the plaints in the
first/former suit and a subsequent suit.
8. In the present case, the defendant was not successful in
getting his application under Order VII Rule 11(d) of the Code
allowed. Consequently, the defendant filed civil revision petition
under Section 115 of the Code before the High Court. The High
Court, after narrating the respective contentions of the parties, has
analysed the averments in the plaint filed in OS No.4722 of 2012
(first suit) in juxtaposition with the plaint in OS No.2320 of 2013
(second suit). On a conjoint reading of the two plaints, the High
Court has observed that on a reading of the averments in
paragraph 7 of the plaint in OS No.4722 of 2012 that S Valliammai
(plaintiff No.1 in the second suit) was aware that the properties in
the present suit were already given to the share of defendant No.1
in the said suit (revision petitioner No.1 before the High Court).
That the power of attorney dated 04.11.2011 was not challenged
by M. Sokkalingam during his lifetime (plaintiff No.2 in the first
suit). That the second suit was filed after the demise of M.
Sokkalingam by his widow and his two daughters challenging the
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power of attorney in favour of defendant No.2 in the said suit. The
High Court has also gone into the merits of the prayers sought for
by the plaintiff in the second suit. The High Court has further
observed that the first plaintiff in the second suit did not seek leave
to file another suit and that there was an omission to assail the
power of attorney in the first suit and that there was no separate
cause of action to file another suit. That the plaintiffs in the second
suit were aware of the execution of the power of attorney dated
04.11.2011, hence, the cause of action for both the suits were one
and the same. The High Court has further analysed the averments
in the second suit, as if it is evidence. The High Court has also
considered the implication of the release letters executed by the
daughters and consequently, held that the Trial Court erred in
concluding that the cause of action for the two suits is different
and distinct.
8.1 The above approach of the High Court in analysing the
averments made in the second suit as if it is evidence, in
juxtaposition with the averments made in the first suit is improper
53
in view of our aforesaid discussion. Therefore, the High Court was
not justified in allowing the Civil Revision Petition.
9. In the result, the appeal is allowed and the judgment and
order of the High Court is set-aside. The order of the trial court in
O.S. No.2320 of 2013 is restored along with the plaint.
All observations made in this appeal are only for the purpose
of disposal of this appeal and would not have a bearing on the
merits of the suit to be tried by the trial court.
The parties to bear the respective costs.
…………………………………..J.
(B.V. NAGARATHNA)
…………………………………..J.
(UJJAL BHUYAN)
NEW DELHI;
APRIL 16, 2026.
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