K BALADHANDAYUDAM Vs. P S R SATHIYAMURTHY

JUDGEMENT

(1.) The defendant in O.S. No. 52 of 2012 on the file of the Sub Court, Panruti, is the revision petitioner. The respondent/plaintiff filed the suit for declaration of title and for permanent injunction stating that the property originally belonged to one Rajmohan and Rajmohan sold the property to the plaintiff under a registered sale deed, dated 04.11.2010 and ever-since the date of purchase, the respondent/plaintiff is in effective possession of the property as absolute owner and also fenced the property. Earlier, his vendor Rajmohan executed a power in favour of one Rajagopal and thereafter, the power was cancelled and the revision petitioner herein alleged to have purchased the property from the power agent and also got service connection in respect of the suit property and is attempting to put up a construction and also trying to trespass into the suit property and therefore, the suit was filed for declaration of title and injunction.

(2.) In that suit, the revision petitioner/defendant filed a statement stating that the suit is barred by Order 2 Rule 2 CPC and it is liable to be dismissed and the respondent/plaintiff along with his vendor Rajmohan and another person filed a suit in O.S. No. 328 of 2010 on the file of the District Munsif Court, Panruti against the revision petitioner and four others for permanent injunction and the cause of action for the present suit i.e. O.S. No. 52 of 2012 and the cause of action for the suit in O.S. No. 328 of 2010 are one and the same and therefore, the suit is barred under Order 2 and Rule 2 CPC. The revision petitioner herein also filed I.A. No. 325 of 2012 under Order 7 Rule 11 of CPC to reject the plaint on the ground that the suit is barred under Order 2 Rule 2 of CPC and that application was dismissed and aggrieved by the same, this revision is filed.

(3.) Mr. AR. L. Sundaresan, the learned Senior counsel appearing for the revision petitioner submitted that a reading of the plaint in O.S. No. 328 of 2010 and O.S. No. 52 of 2012 would make it clear that in respect of the same cause of action, the plaintiff/respondent herein filed O.S. No. 328 of 2010 along with four others and prayed for injunction. Though at that time, the prayer for declaration ought to have been prayed for in O.S. No. 328 of 2010, as the plaintiffs in that suit were also aware that their title was in dispute at that time, nevertheless, without getting the leave from the court for filing a suit for declaration at the relevant point of time, they have chosen to file a suit for bare injunction and two years latter, the respondent alone filed a suit for declaration and for permanent injunction and even at that time of filing of O.S. No. 328 of 2010, the revision petitioner herein disputed the title of the respondent/plaintiff herein and that was also mentioned in the plaint in O.S. No. 328 of 2010 and therefore, the present suit filed by the plaintiff/respondent for declaration and for injunction in respect of the same cause of action is clearly barred by Order 2 Rule 2 CPC and therefore, the plaint in O.S. No. 52 of 2012 is liable to be rejected. The learned Senior counsel relied upon the judgment of the Hon'ble Supreme court reported in the matter of N.V. Srinivas Murthy and others vs. Mariyamma (Dead) by proposed Lrs. and others, 2005 5 SCC 548 and in the matter of Virgo Industries (Eng.) Ltd., vs. Venturetech Solution P. Ltd., 2012 5 CTC 359 in support of his contention.