Order II Rule 2 and limitation in a fresh suit after withdrawal: liberty to sue again defeats the bar, but a stale money claim fails.

A fresh suit filed after withdrawal of an earlier suit with liberty to sue again is not barred by Order II Rule 2 CPC where the earlier matter was not finally heard and decided; constructive res judicata and res judicata do not apply on those facts. The money claim, however, was held time-barred because the last payment relied on was made in 1995 and the suit was filed in 2001, and the plea to treat the matter as a rendition-of-accounts claim was not accepted. Benami and court-fee objections were left for trial.

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Issues: (i) whether the suit was barred under Order II Rule 2 of the Code of Civil Procedure, 1908 because of the earlier withdrawn suit; and (ii) whether the prayer for recovery of money was barred by limitation.

Issue (i): whether the suit was barred under Order II Rule 2 of the Code of Civil Procedure, 1908 because of the earlier withdrawn suit

Analysis: The earlier suit had been withdrawn before it ran its full course and with liberty to file a fresh suit on the same cause of action. The withdrawal order did not restrict the plaintiff from claiming additional reliefs arising out of the same cause of action in the fresh suit. The bar under Order II Rule 2, as well as the principles of constructive res judicata and res judicata, could not apply because no issue had been finally heard and decided in the earlier proceeding.

Conclusion: The suit was not barred under Order II Rule 2, and this issue was decided in favour of the plaintiff and against the defendant.

Issue (ii): whether the prayer for recovery of money was barred by limitation

Analysis: The plaint showed that the last payment relied upon by the plaintiff was made in 1995, whereas the suit was filed in 2001. On those facts, the money claim was beyond time. The plea that the claim should be treated as one for rendition of accounts was not accepted.

Conclusion: The prayer for recovery of money was barred by limitation and stood rejected.

Final Conclusion: The suit survived on the preliminary objection under Order II Rule 2, but the monetary claim failed as time-barred, while the objections concerning benami and court-fee issues were left for trial.

Ratio Decidendi: A fresh suit filed with liberty after withdrawal of an earlier suit is not barred by Order II Rule 2 unless the earlier suit had been finally heard and decided on the relevant claim; a money claim filed beyond the limitation period must be rejected.

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