Mst. RAZIA BEGUM and 3 others vs KANEEZ FATIMA and 3 others
This matter arises from a petition for leave to appeal filed against the dismissal of a Regular Second Appeal by the High Court, which had affirmed the lower appellate court's decision holding the petitioners' suit for declaration and possession to be barred under Order II, Rule 2 of the Code of Civil Procedure 1908 due to the rejection of the plaint in an earlier suit. The core legal question concerns whether Order II, Rule 2 of the Code of Civil Procedure 1908 applies when an earlier suit's plaint was rejected under Order VII, Rule 11, and whether the cause of action in both suits was identical. The Supreme Court granted leave to appeal, holding that the contentions raised regarding the applicability of Order II, Rule 2 and the nature of the cause of action require detailed examination. The key principle established is that questions regarding the bar of Order II, Rule 2 following the rejection of a plaint under Order VII, Rule 11 merit formal appellate review by the apex court.
- Does Order II Rule 2 of the Code of Civil Procedure 1908 bar a subsequent suit when the plaint in the earlier suit was rejected under Order VII Rule 11?
- Can the subject-matter and cause of action of two successive suits be treated as the same for the purposes of Order II Rule 2 of the Code of Civil Procedure 1908?
- Order II Rule 2, Code of Civil Procedure 1908
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the plaintiffs' side in a suit for declaration and possession; against the dismissal by the High Court, of their Regular Second Appeal. The learned District Court while accepting the respondents' First Appeal had held that the petitioners' suit was barred by the provisions contained in Order II, Rule 2, C.P.C. Because of the rejection of their plaint in an earlier suit filed by them in respect of the same subject-matter. The High Court having affirmed the first appellate order, leave to appeal has now been sought.
2. Learned counsel, inter alia, contended that the earlier suit was not decided on merits, the plaint was rejected under Order VII, Rule 11, C.P.C. Be that as it may, he further argued that Order II, Rule 2, C.P.C. Did not apply to the present suit amongst others for the reasons that the subject-matter and/or cause of action of both the suits could not be treated as the same. These and the other questions raised in this petition require examination. Leave to appeal, accordingly, is granted.
3. ' Security Rs, 5,000.
4. ' Appeal shall be prepared on the present record with direction to the parties to file all essential documents which would be necessary for disposal of the appeal.