JUDGMENT : Being aggrieved by the judgment and decree dated 9-9-2011 passed by III ADJ, Mandsaur in Civil Regular Appeal No. 18-A/11 arising out of judgment and decree dated 30-9-2010 passed by I Civil Judge Class II, Mandsaur in Civil Suit No. 61 -A/09 whereby the suit filed by the respondent was dismissed, was set aside and the case was remanded, the present appeal has been filed. 2. Short facts of the case are that respondent filed a suit for declaration and possession on 13-5-2009. The suit was contested by the appellant on various grounds including on the ground that suit filed by the respondent is barred under Order II Rule 2, CPC as respondent earlier filed a suit for permanent injunction on 11-9-2002, which was dismissed on 23-6-2008 and no appeal was filed by the respondent. It was alleged that judgment passed earlier against the appellant had attained finality and respondent had admitted that respondent was never in possession of the suit property. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned Trial Court dismissed the suit on the ground that suit filed by the respondent is hit by Order II Rule 2, CPC and also decided other issues, against which an appeal was filed by the respondent which was allowed and the decree passed by the learned Trial Court was set aside and the case was remanded, hence this appeal. 3. Learned Counsel for appellant submits that impugned judgment passed by learned Appellate Court is illegal and deserves to be set aside. Learned Counsel placed reliance on Order II Rule 2, CPC, which reads as under : - "2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.” 4. It is submitted that since the relief of possession was not claimed in the earlier suit, therefore, it is presumed that respondent relinquished that part of the claim. It is submitted that since the relief of possession was not claimed in the earlier suit, therefore, it is presumed that respondent relinquished that part of the claim. Learned Counsel further submits that even if it is assumed that respondent was not entitled to file the suit subsequently for possession, then too, there was no justification on the part of learned Appellate Court to remand the case. For this contention, reliance is placed on a decision in the matter of Municipal Corporation, Hyderabad Vs. Sunder Singh, (2008) 8 SCC 485, wherein it was observed that "before invoking the provision regarding remand of a case by the Appellate Court under Order 41 Rule 23, CPC the conditions precedent laid down therein must be satisfied. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The Appellate Court must disagree with the findings of the Trial Court on the said issue. Only when a decree is to be reversed in appeal, the Appellate Court may if it considers necessary, remand the case in the interest of justice". It is submitted that appeal be allowed and impugned judgment passed by the learned Appellate Court be set aside. 5. Learned Counsel for respondent submits that since the subsequent suit filed by respondent is on a different cause of action for which the cause of action accrued to the respondent on 23-6-2008 when the former suit filed by the respondent was dismissed, therefore, the suit filed by respondent does not hit by Order II Rule 2, CPC. Learned Counsel placed reliance on a decision in the matter of Sidramapaa Vs. Rajashetty, AIR 1970 SC 1659, wherein Hon'ble Apex Court observed that "cause of action in subsequent suit is different and relief asked for in subsequent suit not one which could have been asked for in earlier suit, it was held that subsequent suit is not barred". Learned Counsel further submits that since the suit was dismissed mainly on the ground that because of Order II Rule 2, CPC the suit suit filed by the respondent is not maintainable, therefore, learned Court below committed no error in remanding the case in wholesole. It is submitted that appeal has no merits and same be dismissed. 6. Learned Counsel further submits that since the suit was dismissed mainly on the ground that because of Order II Rule 2, CPC the suit suit filed by the respondent is not maintainable, therefore, learned Court below committed no error in remanding the case in wholesole. It is submitted that appeal has no merits and same be dismissed. 6. In the aforesaid matter the Hon'ble Apex Court has further observed that where the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff s subsequent suit is not barred by Order II Rule 2, CPC. In the matter of Shri Inacio Martins Vs. Narayan Hari Naik, AIR 1993 SC 1756 , wherein earlier suit for injunction was dismissed and subsequent suit was for declaration of title with recovery of possession, the Hon'ble Apex Court has held that the subsequent suit is not barred by principles of resjudicata. Keeping in view the aforesaid position of law, this Court finds that the learned Appellate Court has not committed any error in allowing this appeal and setting aside the order passed by the learned Trial Court in remanding the case. 7. In view of this, appeal has no merits and the same stands dismissed. No order as to costs.