Navnithbhai Harmanbhai Patel vs Ambalal Kalidas Patel Since Deceased ... on 21 August, 2018
6.15 Dealing with the contention raised by the learned
advocate for the appellants that to attract the bar under Order
II rule 2 of the Code, the parties to the suits have to be the
same, the learned advocate placed reliance upon the decision
Page 28 of 139
C/FA/558/2002 JUDGMENT
of the Calcutta High Court in the case of Phani Bhushan
Mukherjee and others v. Rajendra Nandan Goswani and
another, AIR 1947 Calcutta 11, wherein the court held that
Order II rule 2 of the Code is not based upon the doctrine of
merger. It enacts a special rule that if the plaintiff was able to
claim a wider and much larger relief than that to which he
limited his claim in the suit, and which arises out of the same
cause of action he would not be entitled to recover the balance
in a subsequent suit. The object of the rule is to prevent the
splitting up of the same cause of action and to prevent the
same person or persons being vexed twice. To make the rule
applicable, two things are essential; firstly that the previous
and the present suits must arise out of the same cause of
action; and secondly, they must be between the same parties.
In the facts of the said case, the court held that so far as the
defendant No.1 is concerned, it could not be disputed that
Order II rule 2 of the Code operates as a complete bar to the
said suit but so far as the defendant No.2 is concerned, Order II
rule 2 is not directly applicable. Mr. Parikh submitted that in
the facts of the present case also, insofar as the defendant in
this suit is concerned, the suit is barred by the provisions of
Order II rule 2 of the Code as he was also a defendant in the
former suit. It was contended that the executor of the suit
agreement was a party in both the suits. Therefore, the
subsequent suit is barred against him.