Bar Under Order 2 Rule 2 CPC Is a Technical Plea — Must Be Pleaded, Proved and Cannot Be Presumed” — Punjab & Haryana High Court

“Unless identity of cause of action is established, bar under Order II Rule 2 CPC cannot apply merely by inference” — In a detailed judgment delivered Punjab and Haryana High Court rejected a revision petition filed under Article 227 CPC against the trial court’s refusal to dismiss a civil suit invoking Order II Rule 2 of the Civil Procedure Code.

The Court categorically held that the technical bar under Order II Rule 2 CPC must be specifically pleaded and substantiated with evidence of identity of cause of action, failing which the suit cannot be rejected at the threshold.

Justice Alka Sarin observed:
“Since the bar under Order II Rule 2 CPC is a technical one, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning.”

“Suit Cannot Be Rejected on the Basis of Order II Rule 2 Without Framing of Issue and Evidentiary Analysis”

The petitioner, Nisha Sharma, had sought dismissal of the respondent’s civil suit claiming a half-share in ancestral property, on the ground that earlier suits had already been filed in 2016 and 2020. It was argued that the present claim is hit by Order II Rule 2 CPC, which mandates inclusion of the entire claim from the same cause of action in a single suit.

However, the Court dismissed the argument noting that:
“The petitioner could not establish that the suit in question is in respect of the same cause of action as that on which the previous suits were based. Even from the plaints of the earlier suits, learned counsel could not point out any identity in the causes of action.”

Quoting the Supreme Court's judgment in Cuddalore Powergen Corporation Ltd. v. M/s Chemplast Cuddalore Vinyls Ltd. [2025 INSC 73], the Court reiterated the settled legal position that for a bar under Order II Rule 2 to succeed, the following conditions must be fulfilled:

“(a) The second suit was in respect of the same cause of action as the previous one;
(b) In respect of that cause of action, the plaintiff was entitled to more than one relief;
(c) The plaintiff, without leave of the court, omitted to sue for the relief now claimed.”

In the absence of such a clear showing, the Court held, the application could not be sustained.

“No Provision to Dismiss Suit Under Order II Rule 2 — Only Order VII Rule 11 Applies”

The Court further clarified that Order II Rule 2 does not provide for rejection of the plaint. Only Order VII Rule 11 CPC enumerates the grounds on which a plaint may be rejected.

The revisionist's application under Order II Rule 2 CPC was not maintainable at the threshold stage. Justice Sarin held:
“Even if the present application is to be treated as an application under Order VII Rule 11 CPC ignoring the nomenclature, at the time of rejection of the plaint only the contents of the plaint are to be seen.”

When asked to show how the plaint disclosed a bar under Order VII Rule 11(d) (i.e. barred by law), counsel for the petitioner failed to demonstrate the same.

“Res Judicata and Order 2 Rule 2  CPC Are Distinct — One Does Not Include the Other”

The Court also referred to the Supreme Court’s landmark decision in Alka Gupta v. Narinder Kumar Gupta [2010 (10) SCC 141], which explained:

“Res judicata relates to the plaintiff’s duty to put forth all the grounds of attack in support of his claim, whereas Order II Rule 2 requires the plaintiff to claim all reliefs flowing from the same cause of action. The two pleas are different and one will not include the other.”

Hence, in the absence of specific pleading or framing of issues regarding Order II Rule 2, a suit cannot be dismissed solely on that basis.

Revision Dismissed, Suit to Proceed on Merits

In conclusion, the High Court held that the petitioner failed to demonstrate identity of cause of action between the current and previous suits, or that there had been an omission of reliefs from the earlier claims. The bar under Order II Rule 2 CPC being a technical one must be clearly established through pleading, evidence, and adjudication — not merely presumed or asserted without foundation.

The Court thus held:
“In view of the above, the present revision petition being devoid of any merits is accordingly dismissed.”

Date of Decision: 08 April 2025