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Issues: (i) Whether the suit could be dismissed as barred by Order 2 Rule 2 in the absence of a plea and an issue on that bar; (ii) whether the second suit was based on a cause of action distinct from the first suit and therefore not barred by Order 2 Rule 2; (iii) whether the suit was barred by constructive res judicata; and (iv) whether the suit could be dismissed at the preliminary stage without trial on the basis of the plaintiff's alleged conduct.
Issue (i): Whether the suit could be dismissed as barred by Order 2 Rule 2 in the absence of a plea and an issue on that bar.
Analysis: The bar under Order 2 Rule 2 operates only when the defendant specifically pleads it and the court frames an issue so that the parties may address whether the later suit arises from the same cause of action and whether reliefs were omitted. Res judicata and Order 2 Rule 2 are distinct doctrines and one does not include the other. In the absence of a plea, an issue, and the necessary pleadings and materials from the earlier suit, the court could not summarily reject the suit on that ground.
Conclusion: The dismissal on the basis of Order 2 Rule 2 was unsustainable and is decided in favour of the appellant.
Issue (ii): Whether the second suit was based on a cause of action distinct from the first suit and therefore not barred by Order 2 Rule 2.
Analysis: The first suit concerned recovery of balance consideration under the agreement to sell, whereas the second suit sought rendition of accounts and consequential reliefs on the alleged dissolution of the partnership. The two suits arose from different transactions, different subject-matter, and different legal rights. The court could not assume, before trial, that the agreement relating to the Rohini property amounted to settlement of the partnership business at Paschim Vihar. Order 2 Rule 2 applies only where both suits arise from the same cause of action.
Conclusion: The second suit was not barred by Order 2 Rule 2 and this issue is decided in favour of the appellant.
Issue (iii): Whether the suit was barred by constructive res judicata.
Analysis: Constructive res judicata requires a clear plea, notice to the affected party, and identification of the ground of attack or defence that ought to have been raised earlier. The principle under Section 11 and its Explanations applies where a matter might and ought to have been directly and substantially in issue in the former proceedings. No such plea was properly raised, and no basis was shown to identify what issue the plaintiff ought to have raised earlier but failed to raise. The bar therefore could not be invoked summarily.
Conclusion: The suit was not barred by constructive res judicata and this issue is decided in favour of the appellant.
Issue (iv): Whether the suit could be dismissed at the preliminary stage without trial on the basis of the plaintiff's alleged conduct.
Analysis: A civil suit ordinarily must proceed through framing of issues and trial, with evidence led on disputed facts. The Code permits dismissal without trial only in recognised situations, such as rejection of plaint on legal grounds, non-prosecution, default in discovery, or disposal of a pure issue of law. The court could not, while dealing with a preliminary issue, conduct a roving enquiry into disputed facts, rely on unproved documents, or brand the plaintiff's case as false and immoral without evidence and cross-examination. Such a course contravenes the procedural safeguards embodied in the Code.
Conclusion: The suit could not be dismissed without trial on the basis of alleged conduct, and this issue is decided in favour of the appellant.
Final Conclusion: The impugned orders were set aside and the suit was restored to the High Court for decision in accordance with law after giving the parties opportunity to lead evidence.
Ratio Decidendi: A suit cannot be summarily dismissed on Order 2 Rule 2 or constructive res judicata without a proper plea, an issue, and an adjudication on the relevant material, and disputed facts cannot be ined at the preliminary stage without trial and evidence.
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