B H LAKSHMINARAYANA Vs. GIRIJAMMA

JUDGEMENT

(1.) PETITIONER is the defendant in O.S. No.6136/2000. The said suit is filed by the respondent for recovery of a sum of Rs.3,61,450/-. The defendant has resisted the claim by filing written statement. One of the grounds urged by him is that the respondent has filed another suit in O.S. No.1328/2000 seeking recovery of a sum of Rs.1,85,000/-out of the alleged total dues of Rs.4,85,000/-arising from a single transaction and that it was open to the plaintiff to seek recovery of the present suit amount. But he did not chose to do so for no valid reason and therefore the present suit filed splitting the claim and filing a separate suit for the recovery of the said amount is barred under Order II, Rule (ii) of CPC.

(2.) BASED on this defence taken by the petitioner, the Court below has framed an issue in the suit as under :- "Whether the suit is hit under Order II, Rule 2, CPC"?

(3.) THE Court below has found that the cause of action for filing O.S. No.1328/2000 had arisen upon the dishonour of the cheques which was distinct and therefore the plaintiff was justified in bringing O.S. No.1328/2000 for the purpose of recovery of the money involved in such cheques. THE Court has further found that as regard the sum of Rs. 1,80,000/- the petitioner-defendant, as per the plaint averments, had acknowledged his liability not by issuing the cheques, but, by way of undertaking to pay the said amount and therefore when the said amount was not paid, a distinct cause of action arose and therefore the plaint filed in O.S. No.6136/2000 based on the cause of action arising due to non-payment of Rs.1,80,000/- could not be rejected on the ground that it was barred under Order II, Rule 2 of CPC.