Judgment :- 1. The present application has been filed by the applicant / defendant to reject the plaint in C.S.No.480 of 2011. 2. The applicant is the defendant and the respondent is the plaintiff in the said suit. 3. For the sake of convenience, the parties will be referred to as per their ranking in the civil suit. 4. The plaintiff has filed the present suit for the following reliefs:- (i) Declaring the title of the plaintiff to the suit property; (ii) Directing the defendant to remove the super structure and hand over the vacant possession of the suit property to the plaintiff; (iii) Directing the defendant to pay the costs of the suit. 5. The averments made in the plaint, in brief, are as follows:- (a) The suit property originally belonged to one Moulavan. He died leaving behind his legal heirs Parasuraman and seven others. The said Parasuraman and seven others had executed a registered Power of Attorney dated 7.5.1981 in favour of one Ramasamy. The said Ramasamy executed a registered sale deed dated 4.11.1988 in favour of one R.P.Natarajan and his mother on behalf of the said Parasuraman and seven others, thereby conveyed their right, title and interest in the suit property absolutely in favour of the said R.P.Natarajan and his mother. The said R.P.Natarajan and his mother had agreed to convey their title in the suit property to the plaintiff by an agreement dated 22.3.2010. The sale transaction between the plaintiff and the said R.P.Natarajan and his mother was completed on 21.6.2011 by a registered sale deed. (b) After purchase, when the plaintiff visited the property in the third week of June, 2011, he found that a construction work was being carried on in the suit property. Upon enquiry, to his shock and surprise, the plaintiff came to know that the defendant herein is putting up construction claiming that she is the owner of the suit property. The plaintiff, upon enquiry, came to know that the defendant had obtained a sale deed from one Sambasivam on 18.1.2002. The said Sambasivam had claimed that he is the power agent of the legal heirs of Parasuraman, Nagappan and his children. The said deed of power of attorney appears to have been executed in the year 1999. The plaintiff, upon enquiry, came to know that the defendant had obtained a sale deed from one Sambasivam on 18.1.2002. The said Sambasivam had claimed that he is the power agent of the legal heirs of Parasuraman, Nagappan and his children. The said deed of power of attorney appears to have been executed in the year 1999. On the strength of the said power of attorney executed by the legal heirs of Parasuraman, Nagappan and his children, the said Sambasivam had sold the suit property in favour of the defendant herein on 18.1.2002. The plaintiff suspects that the defendant in collusion with the said Sambasivam, had created power of attorney as well as the sale deed in her favour. Hence, the plaintiff has filed the present suit for the reliefs stated supra. 6. On appearance, the defendant has filed the present application under Order VII Rule 11 (d) C.P.C. for rejection of the plaint. The sum and substance of the affidavit filed in support of the said application, in brief, is as follows:- (a) The defendant is the absolute owner of the land bearing Plot No.164, situated in Survey No.303/1 at Annai Indira Nagar, Velacherry, Chennai-42 measuring to an extent of 3044 sq.ft., having purchased the same from one P.Bakyavathi, wife of late Parasuraman and his legal heirs, M.Nagappan, brother of deceased Parasuraman and the sons and daughter of Nagappan, through their power agent by name R.Sambasivam under a registered sale deed dated 18.1.2002. (b) Before purchase of the suit property, the husband of the defendant went to the office of the Sub Registrar of Saidapet and Velacherry to verify whether there was any encumbrance on the suit property upto the date of purchase. After knowing that there was no encumbrance on the suit property and after obtaining Encumbrance Certificate from 1974 till date of purchase, the first defendant purchased the suit property for a valuable sale consideration and the first defendant is the bona fide purchaser of the suit property. (c) The plaintiff claims to be the purchaser of the suit property from one R.P.Natarajan and his mother alleging that they were the owners of the property. Further, the said R.P.Natarajan and his mother are alleged to have purchased the suit property under a sale deed dated 4.11.1988 from one Ramasamy, who was the power agent of Parasuraman and his children and Nagappan, brother of Parasuraman and his children. Further, the said R.P.Natarajan and his mother are alleged to have purchased the suit property under a sale deed dated 4.11.1988 from one Ramasamy, who was the power agent of Parasuraman and his children and Nagappan, brother of Parasuraman and his children. In fact, one of the executors of the power of attorney viz., Parasuraman died on 15.3.1986 itself. Thereafter only, the power of attorney Ramasamy executed the sale deed in favour of R.P.Natarajan and his mother. On the death of Parasuraman, the power deed executed by him and his brothers for themselves and on behalf of the minor sons stood abated. Hence, the legal heirs of Parasuraman and his brother cancelled the power deed executed in favour of Ramasamy on 26.2.1999. Thereafter, the legal heirs of Parasuraman and his brother Nagappan and his sons executed another power of attorney in favour of R.Sambasivam. (d) On such cancellation, the said R.P.Natarajan and his mother filed a suit in O.S.No.7345 of 2001 on the file of the City Civil Court, Chennai, as against the legal heirs of the deceased Parasuraman and Nagappan and his sons and others, for permanent injunction basing their claim and title on the alleged sale deed and sought permanent injunction as against the true owners of the property. In the said suit, the defendant got impleaded as party defendant since she has purchased the property on 18.1.2002 from the subsequent power agent R.Sambasivam. In the said suit, she has filed a written statement opposing the claim of the said R.P.Natarajan and his mother inter alia stating that she is the bona fide purchaser of the suit property for a valuable consideration and she is in possession and enjoyment of the property. After filing the written statement, the suit filed by the said R.P.Natarajan and his mother was dismissed for default on 23.8.2004. (e) After dismissal of the said suit, one Pavammal claiming to be the power agent of R.P.Natarajan and his mother, filed an application for restoration in I.A.No.13580 of 2006 with delay. The trial Court condoned the delay on terms. But, the said terms was not complied with and hence, the restoration application was dismissed by the Court by order dated 28.2.2007. The trial Court condoned the delay on terms. But, the said terms was not complied with and hence, the restoration application was dismissed by the Court by order dated 28.2.2007. Once the application for restoration of the suit having been dismissed for non-compliance of the conditional order for restoration of the suit, it is deemed in law that the said R.P.Natarajan and his mother abandoned the suit within the meaning of Order 23 Rule 1 C.P.C. and consequently, any subsequent suit for the same cause of action is hit by order 23 Rule 3 C.P.C. (f) The suit is also hit by Order 2 Rule 2 C.P.C. inasmuch as the relief sought for in the present suit viz., declaration of title and recovery of possession is very much available to the plaintiff's alleged vendors R.P.Natarajan and his mother when they filed the suit in O.S.No.7345 of 2001 for permanent injunction basing their claim and title on the sale deed dated 4.11.1988. Therefore, the suit is barred by Order 2 Rule 2 C.P.C. Further, the suit filed by the vendors of the plaintiff viz., R.P.Natarajan and his mother was dismissed for default by the trial Court by judgment and decree dated 23.8.2004 and the application for restoration of the said suit was also dismissed on 28.2.2007. Therefore, the said judgment and decree made in O.S.No.7345 of 2001 reached finality. Hence, in terms of Order 9 Rule 9 C.P.C., the so called vendors are precluded from filing any fresh suit subsequently, for the same cause of action, since the plaintiff who stepped into the shoes of the so called vendors is also precluded from filing the suit in respect of the same cause of action. Therefore, since the suit is hit by Order 9 C.P.C., the same is not maintainable and consequently, the plaint is liable to be rejected. (g) When the said R.P.Natarajan and his mother were trying to encroach upon the suit property, the defendant has also filed a suit in O.S.No.7574 of 2010 on the file of the XI Assistant City Civil Court, Chennai for permanent injunction as against the said R.P.Natarajan and his mother and one Jeevanandam. Though notice was served on R.P.Natarajan and others, they remained exparte and an exparte decree was passed in that suit on 25.2.2011. Though notice was served on R.P.Natarajan and others, they remained exparte and an exparte decree was passed in that suit on 25.2.2011. Therefore, the said exparte decree passed in O.S.No.7574 of 2010 operates as res judicata not only to the parties therein but also anybody claiming under them. The judgment and decree made in O.S.No.7475 of 2010 operates / binds not only as against R.P.Natarajan and others but also as against the plaintiff, who had purchased the property from the said R.P.Natarajan and his mother in view of the principles adumbrated under Section 11 C.P.C. Therefore, the plaint is liable to be rejected under Section 11 C.P.C. (h) The plaintiff has suppressed the filing of the suit by R.P.Natarajan and his mother in O.S.No.7345 of 2001 and dismissal of the same for default by the trial Court and the dismissal of the restoration application for non-compliance of the conditional order. The plaintiff had also suppressed the exparte decree obtained against the said R.P.Natarajan and others in O.S.No.7574 of 2010 dated 25.2.2011. Therefore, on this ground also, the plaint is liable to be rejected. Thus, she sought for rejection of the plaint. 7. The plaintiff has filed a counter inter alia stating that the plaintiff's vendors R.P.Natarajan and his mother were the absolute owners of the suit property. They filed a suit in O.S.No.7345 of 2001 as against the persons who tried to trespass into the suit property, for bare injunction. While the said suit was pending, the defendant had purchased the suit property on 18.1.2002. Subsequent to the purchase, the defendant got impleaded herself in the said suit. The said suit was dismissed for default on 23.8.2004. Since the said suit was filed for bare injunction, the dismissal of the said suit will not be a bar for filing a suit for the relief of declaration and recovery of possession since it was not dismissed on merits and it was dismissed only for non-prosecution. Hence, the subsequent comprehensive suit for larger relief is very much maintainable. With regard to the suit filed by the defendant in O.S.No.7574 of 2010, the defendant knew very well about R.P.Natarajan's claim over the suit property. But suppressing the said fact, the defendant filed the said suit as against R.P.Natarajan and his mother, the plaintiff's vendor and obtained an exparte order in her favour. With regard to the suit filed by the defendant in O.S.No.7574 of 2010, the defendant knew very well about R.P.Natarajan's claim over the suit property. But suppressing the said fact, the defendant filed the said suit as against R.P.Natarajan and his mother, the plaintiff's vendor and obtained an exparte order in her favour. On perusing the judgment, it is found that the said judgment is a non-speaking order and no reason was assigned for passing the said judgment. Hence, the said judgment is nullity in the eye of law. Therefore, the said suit will not be a bar for filing the subsequent suit for the larger and more comprehensive relief. The earlier suits are not covered by the provisions of Order 23 and Section 9 C.P.C. Thus, they sought for the dismissal of the application. 8. Reply to the said counter was filed by the defendant reiterating the averments made in the affidavit filed in support of the application for rejection of the plaint. 9. From the materials available on record, I find that originally the properties under Survey No.303/1 comprising of plots bearing No.164, 165, 166 and 167 part along with properties in Survey No.287 comprising of Plot No.118 and 119 belonged to one Moulavan. After his demise, his sons Parasuraman and Nagappan along with their sons and daughters executed a power deed in favour of one Ramasamy in respect of the said properties on 7.5.1981. While so, on 15.3.1986, one of the principals viz., Parasuraman died. After the death of Parasuraman, the power of attorney Ramasamy executed a sale deed dated 4.11.1988 in favour of one R.P.Natarajan and his mother Nallammal. Subsequently, the legal heirs of Parasuraman and others cancelled the power deed executed in favour of Ramasamy on 26.2.1999 and executed a fresh power deed in favour of one R.Sambasivam. While the situation stood thus, R.P.Natarajan and his mother filed a suit in O.S.No.7345 of 2001 as against the original owners, the power of attorney and the subsequent purchasers of Plot Nos.165, 166 and 167 part of the property, for permanent injunction restraining them from in any way interfering with their possession and enjoyment of the property. Pending suit, the defendant herein purchased plot No.164 from the wife of deceased Parasuraman and his legal heirs and M.Nagappan and his sons and daughter through their subsequent power agent R.Sambasivam. Pending suit, the defendant herein purchased plot No.164 from the wife of deceased Parasuraman and his legal heirs and M.Nagappan and his sons and daughter through their subsequent power agent R.Sambasivam. After purchase, the defendant got impleaded herself in O.S.No.7345 of 2001 filed by R.P.Natarajan and his mother by filing appropriate application. But, the said suit was dismissed for default on 23.8.2004. Even after the dismissal of the said suit, the said R.P.Natarajan claimed right over the suit property and obtained electricity service connection for the vacant site. Thereafter, the defendant filed a suit in O.S.No.7574 of 2010 for permanent injunction as against R.P.Natarajan and another on the file of the City Civil Court, Chennai. In the said suit, an exparte decree was passed in favour of the defendant on 25.2.2011. While so, the plaintiff in the present suit had purchased plot No.164 on 21.6.2011 from the said R.P.Natarajan and his mother under a registered sale deed. After purchase of the suit property on 21.6.2011, the plaintiff has filed the present suit as against the defendant, who had purchased the property on 18.1.2002 from the wife of deceased Parasuraman and his major children and Nagappan and his major children through their power agent Sambasivam, for a declaration declaring the title of the plaintiff to the suit property and for a direction to the defendant to remove the super structure and hand over the vacant possession of the suit property to the plaintiff, stating that the plaintiff's vendor R.P.Natarajan had obtained electricity service connection and put up a shed thereon and he was in possession and enjoyment of the suit property. Due to his old age, the said R.P.Natarajan moved to Namakkal and he has not visited Chennai frequently. Hence, he sold the property to the plaintiff by a registered sale deed dated 21.6.2011. After purchase, the plaintiff visited the suit property in the third week of June, 2011 and found that a construction was being carried on in the suit property. Upon enquiry, he came to know that the defendant is putting up construction claiming that she is the owner of the suit property. Hence, she has filed the present suit. 10. After purchase, the plaintiff visited the suit property in the third week of June, 2011 and found that a construction was being carried on in the suit property. Upon enquiry, he came to know that the defendant is putting up construction claiming that she is the owner of the suit property. Hence, she has filed the present suit. 10. Learned senior counsel appearing for the defendant has submitted that the present suit is liable to be rejected under Order VII Rule 11 C.P.C. for the following grounds:- (A) The present suit is hit by Order 2 Rule 2 C.P.C. :- The present suit has been filed for a declaration declaring the title of the plaintiff to the suit property. The cause of action for the prayer of declaration to declare the title of the plaintiff herein was available even the date on which the plaintiff's vendors viz., R.P.Natarajan and his mother filed a suit in O.S.No.7345 of 2001 as against the original owners, in which the defendant got impleaded herself as one of the defendants. But, the plaintiff's vendors had filed a suit only for a bare injunction as against the original owner and they have not made any prayer to declare their title to the suit property. Thus, the plaintiff's vendors have relinquished a portion of their claim deliberately, wantonly and intentionally. Since the plaintiff's vendors had relinquished a portion of the claim in the suit filed by them in O.S.No.7345 of 2001 as against the original owner, now the plaintiff is precluded from bringing another suit in respect of the same cause of action. Therefore, the present suit is hit by Order 2 Rule 2 C.P.C. In support of his contention, learned senior counsel appearing for the defendant has relied upon the following judgments:- (i) In the decision reported in (2005) 5 Supreme Court Cases 548 - N.V.Srinivasa Murthy and others v. Mariyamma (dead) by proposed LRs. and another, the Hon'ble Supreme Court has held as follows:- " 13. In para 11 of the plaint, the plaintiffs have stated that they had earlier instituted Original Suit No. 557 of 1990 seeking permanent injunction against the defendants and the said suit was pending when the present suit was filed. and another, the Hon'ble Supreme Court has held as follows:- " 13. In para 11 of the plaint, the plaintiffs have stated that they had earlier instituted Original Suit No. 557 of 1990 seeking permanent injunction against the defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original Civil Suit No. 557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2 Rule 2 of the Code of Civil Procedure. " (ii) In the decision reported in 2011 (2) CTC 177 - Joseph Arokiados, rep. by Power Agent, T.Kasi v. P.Pradeep, this Court has held as follows:- "8. ... Order 2 Rule 2 C.P.C. extracted above clearly envisages that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue in respect of a particular cause of action, he shall not afterwards sue in respect of the other portions so omitted or relinquish. If he omits to incorporate a prayer except with the leave of the Court, he shall not file another suit. 9. When such is the position, it is not known why the respondent herein has filed the latter suit in O.S.No.124 of 2009 for declaration, possession and injunction. The best course would have been only to file an application under Order 7 Rule 17 C.P.C. for amendment in the earlier suit filed by him viz., O.S.No.576 of 2008. The Court below failed to take into account the said aspect while dismissing the application preferred by the petitioner. " (iii) In the decision reported in 2014 (1) CTC 43 - Kongunadu Arts and Science College v. Gnanambigai Mills Ltd, this Court has held as follows:- " 3.2. The Court below failed to take into account the said aspect while dismissing the application preferred by the petitioner. " (iii) In the decision reported in 2014 (1) CTC 43 - Kongunadu Arts and Science College v. Gnanambigai Mills Ltd, this Court has held as follows:- " 3.2. Rule 2(1) in Order 2 enables the plaintiff to relinquish any portion of the claim, so as to bring the same within the jurisdiction of the Court and Rule 2(2) of Order 2 contemplates that if the plaintiff has omitted to sue in respect of, or intentionally relinquishes, any portion of his claim, he would be precluded from suing in respect of the portion so omitted or relinquished. Rule 3 of Order 2, provides that if, in case, the plaintiff omits to pray for any relief, with the leave of the Court he may sue on a subsequent occasion for such reliefs. 3.3. When the plaintiff's subsequent suit is not barred by Order 2, Rule 2 of C.P.C has been explained in the decision reported in AIR 1970 SC 1059 (1) Sidramappa v. Rajashetty and others, wherein it is held 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 2, Rule 2 of C.P.C. therefore it is necessary to see whether the foundation otherwise called the cause of action for both the suits are different or the same. 3.4. What is cause of action is the next issue to be decided. The recent decision of the Hon'ble Supreme Court reported in 2013 1 L.W. 31 answers this, extracting from Halsburys Laws of England. “Cause of Action has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.” 4. Admittedly the foundation for the claim in both the suits is one and the same. In one suit, the defendant is sought to be restrained from putting up construction and in another suit the defendant is sought to be directed to remove the construction. Both the reliefs have been asked for on the same foundation that the plaintiff is the owner of the property and the defendant is trying to trespass/has trespassed without any right. When the first suit for injunction is pending and if the defendant has put up construction, it is open to the plaintiff to seek further direction in the same suit as the cause of action is the same. Therefore, the second suit is clearly barred. " (iv) In the decision reported in JT 2012 (8) SC 600 - M/s.Virgo Industries (Eng.) P. Ltd., v. M/s.Venturetech Solutions P. Ltd., the Hon'ble Supreme Court has held as follows:- " 9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit. 10. The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order 2 Rules 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order 2 Rules 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. Though each of the aforesaid decisions contain a clear and precise narration of the principles of law arrived at after a detailed analysis, the principles laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh v. Bhooralal may be usefully recalled below: (AIR p. 1812, para 6) “6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.” The above principles have been reiterated in several later judgments of this Court. Reference by way of illustration may be made to the judgments in Deva Ram v. Ishwar Chand and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. 11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. Co. 11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury’s Laws of England (4th Edn.). The following reference from the above work would, therefore, be apt for being extracted hereinbelow: ‘Cause of action’ has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action." (v) In the decision reported in (2014) 3 Supreme Court Cases 595 - State Bank of India v. Gracure Pharmaceuticals Limited., the Hon'ble Supreme Court has held has follows:- " 11. The abovementioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the court in one suit, as Order 2 Rule 2 CPC is based on the cardinal principle that the defendant should not be vexed twice for the same cause. 12. Order 2 Rule 2 CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate causes of action. 12. Order 2 Rule 2 CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate causes of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case." (vi) In the decision reported in JT 2014 (12) SC 29 - Sri Gangai Vinayagar Temple & Anr. v. Meenakshi Ammal & Ors., the Hon'ble Supreme Court has held has follows:- " 4.1. ... Despite the specificity of these pleadings the Tenants had ostensibly not prayed for any relief with regard to the title of the transferee. Nevertheless, on careful consideration it appears to us that, awkwardly worded though it avowedly is, the first prayer endeavours to articulate this very prayer. In any event, the pleadings are sufficient to lay the foundations for the assumption that the tenants were desirous of assailing the transfer of the title of the land. That being the position, the embargo of order II Rule 2 CPC would become operative against the tenants. ... " Thus, by relying upon the dictum laid down in the above judgments, the learned senior counsel appearing for the defendant submitted that though the cause of action for asking a prayer of declaration of title was available when the plaintiff's vendors filed the suit in O.S.No.7345 of 2001, they have intentionally omitted to ask for a prayer of declaration in the earlier suit. Hence, the present suit for declaration of title by the plaintiff is hit by order 2 Rule 2 C.P.C. (B) The present suit is hit by Order 9 Rule 9 C.P.C. :- The suit filed by the plaintiff's vendors in O.S.No.7345 of 2001 was dismissed for default. Hence, an application in I.A.No.13580 of 2006 was filed under Order 9 Rule 9 C.P.C. to set aside the order of dismissal along with an application to condone the delay. The trial Court has allowed the said application by imposing condition. But, since the said condition was not complied with, the restoration application was dismissed by an order dated 28.2.2007. Hence, an application in I.A.No.13580 of 2006 was filed under Order 9 Rule 9 C.P.C. to set aside the order of dismissal along with an application to condone the delay. The trial Court has allowed the said application by imposing condition. But, since the said condition was not complied with, the restoration application was dismissed by an order dated 28.2.2007. As per Order 9 Rule 9 C.P.C., if an application filed by the plaintiff to set aside the order of dismissal of the suit for non-prosecution, is dismissed by the Court, thereafter, the plaintiff is precluded from filing any fresh suit on the same cause of action. In support of his contention, learned senior counsel appearing for the defendant has relied upon the following decisions:- (i) In the decision reported in A.I.R. 1965 SC 295 - Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and others., the Hon'ble Supreme Court has held has follows:- " 25. It is next urged that Order 9 Rule 9 precluded a second suit in respect of the 'same cause of action' and that the cause of action on which Suit No.58 of 1931 was laid and the present suit - title Suit No.18 of 1943 - was not the same and so the bar was not attracted. 30. The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijomonse Dasee v. Suddanund and extracted the following passage as laying down the approach to the question: “Their Lordships are of opinion that the term ‘cause of action' is to be construed with reference rather to the substance than to the form of action....” Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same fact viz. the position of Md. Ismail quoad his coheirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage-decree and the sale in execution thereof. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same fact viz. the position of Md. Ismail quoad his coheirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage-decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under Order 2 Rule 9 applies, equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the antecedent want of full title in Ismail which was common to the case set up in the two plaints in suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could on the strength of the possession and dispossession or the possessory title that they alleged have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit. The question is whether the further allegations about possession in October 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High Court therefore correctly held that the suit was substantially barred by Order 9 Rule 9." (ii) In the decision reported in (1980) 3 Supreme Court Cases 565 - M/s.Parasram Harnand Rao v. M/s.Shanti Parsad Narinder Kumar Jain and another, the Hon'ble Supreme Court has held has follows:- " 4. Mr Mridul appearing for the appellant challenged before us the findings of the High Court on Points 1 and 3 which are formulated at p. 91 of the judgment of the Delhi High Court. Mr Mridul appearing for the appellant challenged before us the findings of the High Court on Points 1 and 3 which are formulated at p. 91 of the judgment of the Delhi High Court. These points may be extracted thus: “(1) The application made by the appellant before the High Court under Section 25 was not barred by reason of the dismissal of the appellant’s suit for default of appearance under Order 9 Rule 9 CPC. The same is answered at para 6 of the judgment which is as follows:- 6. In the instant case it was appellant who brought the previous suit which resulted in a decree for eviction of the tenant on July 31, 1961 — a date when Respondent 1 had already taken possession of the premises by virtue of transfer made by the Official Liquidator. Thus the identity of the subject-matter being substantially the same, this case clearly falls within the ambit of the ratio in the case supra. On this ground alone therefore the appellant is entitled to succeed because the High Court with due respect does not appear to have properly construed the scope of Order 9, Rule 9 CPC. ..." (iii) In the decision reported in (2010) 2 CTC 631 - Ranjith Ammal v. Sivasubramanian, the Madurai Bench of the Madras High Court has held has follows:- " At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration: (a) when an earlier suit is dismissed for default, whether the transferee of the original plaintiff also is barred from bringing a fresh suit as per the Order 9 rule 9 C.P.C.? (b) when the transferee pendent lite can file a fresh suit after the dismissal of the earlier suit ?" The said issue was answered at paras 14, 16, 17, 18 and 19 which are as follows:- 14. The judgment passed in original suit No.16 of 1983 has been marked as Ex.B.1. It is an admitted fact that the predecessor in title of the plaintiff has filed original suit No.16 of 1983 for the reliefs of declaration and perpetual injunction against the present defendant. In the plaint filed in original suit No.16 of 1983, the same set of facts have been averred as averred in the present plaint. It is an admitted fact that the predecessor in title of the plaintiff has filed original suit No.16 of 1983 for the reliefs of declaration and perpetual injunction against the present defendant. In the plaint filed in original suit No.16 of 1983, the same set of facts have been averred as averred in the present plaint. Original suit No.16 of 1983 has been dismissed for default under order 9 rule 8 of the Civil Procedure Code, 1908. It has already been pointed that if any dismissal is made under order 9 rule 8 of the code of Civil Procedure 1908, a fresh suit on the same cause of action is barred. In the present suit, the same set of reliefs have been sought for in the plaint as claimed in original suit No.16 of 1983. Under the said circumstances, there is no incertitude in coming to a conclusion that in both the suits cause of action is one and the same. Simply the date of cause of action is different in both the suits, the court cannot come to a conclusion that the present suit is not barred under order 9 rule 9 of the Code of Civil Procedure 1908. 16. The learned counsel appearing for the appellant / defendant has befittingly drawn the attention of this Court to the decision of the Hon'ble Apex Court in Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and others, AIR 1965 SC 295 , wherein the Hon'ble Apex Court has held as follows:- ' Beyond the absence in order 9, Rule 9 of the words referring ' to those claiming under the plaintiff' there is nothing to warrant the argument, that Rule 9, which speaks of the plaintiff being precluded from bringing a fresh suit creates merely a personal bar against the plaintiff in the first suit. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his right to that property and confer on the transferee a right which he was precluded by law from asserting. The word plaintiff in the rule should therefore in order that the bar may be effective include his assigns and legal representatives.' 17. The word plaintiff in the rule should therefore in order that the bar may be effective include his assigns and legal representatives.' 17. From the close perusal of the decision mentioned supra, it is needless to say that Order 9 Rule 9 of the Code of Civil Procedure, 1908 can also be invoked against the legal representatives or assignees of the plaintiff, who filed earlier suit. 18. In the instant case, the present plaintiff has claimed title to the suit property only through the plaintiff found in original suit No.16 of 1983. Therefore, as per the dictum passed by the Hon'ble Apex Court in Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and others, AIR 1965 SC 295 it is needless to say that the entire arguments advanced by the learned counsel appearing for the respondent / plaintiff is not legally tenable. 19. It has already been stated in many places that the present suit is clearly barred under order 9 rule 9 of the Code of Civil Procedure, 1908 in view of the dismissal of the suit filed in original suit No.16 of 1983 under Order 9 rule 8 of the said Code." By relying upon the said judgments, learned senior counsel appearing for the defendant submitted that since the suit filed by the vendors of the plaintiff in O.S.No.7345 of 2001 was dismissed for non appearance of the plaintiff, now the plaintiff is precluded from filing a fresh suit. Therefore, the present suit is liable to be rejected since it is hit by Order 9 Rule 9 C.P.C. (C) The suit is hit by Order 23 Rule 1(4) C.P.C. :- The suit in O.S.No.7345 of 2001 filed by the plaintiff's vendors was dismissed for default on 23.8.2004 and the restoration application was also dismissed by the trial Court by an order dated 28.2.2007. Thus, the plaintiff's vendors abandoned the said suit. In view of the abandonment of the said suit, the present suit is hit by Order 23 Rule 1(4) C.P.C. In support of this contention, learned senior counsel appearing for the defendant has relied upon the judgment reported in (2012) 8 Supreme Court Cases 305 - Nitin Gunwant Shah v. Indian Bank and others, wherein the Hon'ble Supreme Court has held has follows:- "46. The petitioner had filed a suit, inter alia, for declaration of his status as a monthly tenant in respect of the suit property, being RA No. 1719 of 1990, in the Small Cause Court, Mumbai, against Respondents 4 and 5 herein. He also obtained an interim order on 9-3-1990, directing the parties to maintain status quo till 14-3-1990. The said suit came to be dismissed on 19-2-1993, for non-prosecution. The petitioner allowed the said dismissal to become final and 13 years later filed a fresh suit, being RAD Suit No. 1389 of 2006, against Respondents 4 and 5 and the respondent Bank, for the same declaration that he was a monthly tenant of the disputed property. 47. As indicated by my learned Brother, in the plaint of the second suit, the petitioner had disclosed the fact regarding the filing of the earlier suit and the dismissal thereof on the ground of default. Prima facie, the second suit is barred under Order 23 Rule 1 sub-rule (4) of the Code of Civil Procedure, which, inter alia, provides as follows: “1. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” 51. The petitioner, who abandoned his suit for declaration that he was a tenant of the suit premises, cannot at this stage of the proceedings, be allowed to take advantage of such lapse, in view of the provisions of sub-rule (4) of Order 23 Rule 1 CPC, and I fully agree with my learned Brother that no interference is called for with the judgment under scrutiny." Thus, by relying upon the above decision, the learned senior counsel appearing for the defendant submitted that in view of the dictum laid down in the above judgment by the Hon'ble Supreme Court, the suit is hit by law in terms of order VII Rule 11 (d) of C.P.C. (D) The present suit is hit by Section 11 C.P.C. :- In view of the exparte decree passed in O.S.No.7574 of 2010 filed by the defendant as against the plaintiff's vendors, the present suit is hit by Section 11 C.P.C. In the said suit, though notice was served on the plaintiff's vendors, they remained exparte and consequently, an exparte decree was passed on 25.2.2011. Therefore, when the plaintiff's vendors suffered a decree in respect of the same cause of action for the same subject matter, neither the plaintiff nor any one claiming through him, can file a suit for the same cause of action. In this regard, learned senior counsel appearing for the defendant has relied upon the following judgments:- (i) In the judgment reported in (1994) 2 Supreme Court Cases 14 - Sulochana Amma v. Narayanan Nair., the Hon'ble Supreme Court has held has follows:- " 9. Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The civil court found that K acquired life estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality, would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. As the appellant is deriving title from K who was a party in the former suit is also hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. " (ii) In the judgment reported in (2005) 6 Supreme Court Cases 202 - Annaimuthu Thevar (dead) by LRs. v. Alagammal and others., the Hon'ble Supreme Court has held has follows:- " 27. The next question that arises is whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami. 29. The former suit in which decree of permanent injunction was sought was clearly founded on the claim of Muthuswami as the owner of the suit house to execute a mortgage. The issue of title or ownership of the suit house was thus directly or substantially involved in the former suit. 31. 29. The former suit in which decree of permanent injunction was sought was clearly founded on the claim of Muthuswami as the owner of the suit house to execute a mortgage. The issue of title or ownership of the suit house was thus directly or substantially involved in the former suit. 31. In the former suit, respondent Alagammal, the wife of Muthuswami clearly set up her own right of ownership to the suit house on the basis of settlement and relinquishment of the suit house in her favour by the husband in the village Panchayat. Claim of such ownership and title might have been found ineffectual in law, as pursuant to such oral relinquishment in the village Panchayat the husband did not execute any formal written and registered document. On the aforesaid plea of wife Alagammal, in the former suit in which she had set up claim of ownership of the suit house on the relinquishment of right by her husband in the village Panchayat, it was open to her husband Muthuswami and his mortgagee to raise a counter-plea that the alleged oral relinquishment in the village Panchayat was ineffectual in law and conferred no title on her. 32. In the former suit the wife had claimed to be in possession with her children of the suit house pursuant to the settlement reached with her husband in the village Panchayat. In the former suit, in reply to the plea of the wife, it was open to the plaintiffs to alternatively seek a decree of possession on the basis of their title to the suit house. 34. We cannot be prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the Housing Society in favour of Muthuswami, the issue of title to the suit house could neither be raised nor was raised in the former suit. On the examination of the case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. On the examination of the case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit filed by the present appellant as purchaser from Muthuswami is barred by the doctrine of constructive res judicata and the High Court was right in holding accordingly. See the following observations of this Court in the case of Sulochana Amma v. Narayanan Nair: (SCC p. 20, para 9) “[It was] contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata.” Thus, by relying upon the above judgment, the learned senior counsel appearing for the defendant submitted that when the plaintiff's vendors had already suffered a decree in the suit filed by the defendant in O.S.No.7574 of 2010, the present suit filed by the plaintiff for the same cause of action is hit by Section 11 C.P.C. (E) Abuse of process of law and suppression of facts:- The plaintiff's vendors viz., R.P.Natarajan and his mother filed a suit in O.S.No.7345 of 2001 for permanent injunction based upon their title in respect of the same cause of action / same subject matter and the said suit was dismissed for default on 23.8.2004. Even the restoration application filed in I.A.No.13580 of 2006 was also dismissed for non-compliance of the terms imposed for condoning the delay in filing the application for restoration. Now, the plaintiff, who has purchased the same property from the said R.P.Natarajan and his mother, filed the present suit under a different nomenclature viz., for declaration of title and for recovery of possession by suppressing the above facts. Now, the plaintiff, who has purchased the same property from the said R.P.Natarajan and his mother, filed the present suit under a different nomenclature viz., for declaration of title and for recovery of possession by suppressing the above facts. However, the cause of action for both the suit is one and same and hence, it is a clear abuse of process of law. In this regard, learned senior counsel appearing for the defendant has relied upon the following judgments:- (i) In the decision reported in (1998) 3 Supreme Court Cases 573 - K.K.Modi v. K.N.Modi and others., the Hon'ble Supreme Court has held has follows:- " 44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court’s discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding. " (ii) In the decision reported in 1998 A I H C 4247 - M.Sundaram alias Vettukati Sundaram v. R.Thangasamy Nadar., this Court has held has follows:- "14. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding. " (ii) In the decision reported in 1998 A I H C 4247 - M.Sundaram alias Vettukati Sundaram v. R.Thangasamy Nadar., this Court has held has follows:- "14. In this connection, it may also be noted that Order VI Rule 16 of the Code of Civil Procedure was amended under the Act 1045 of 1976 where the power is given to Court at any stage of the suit to strike of the plaint 'which is otherwise an abuse of process of law' . Apart from the same, under inherent powers under Section 151 of the Code of Civil Procedure, the Court is given the power to strike of the plaint if it comes to the conclusion that there is an abuse of process of law. 15. What is an abuse of process ? In a decision in Hunter V. Chief Constable of West Midlands, 1981 All ER 727 it was held thus: The initiation of proceeds in a Court of justice for the purpose of mounting a collateral attack on a final decision adverse to the intending plaintiff reached by a Court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the matter was, as a matter of public policy, an abuse of the process of the Court." Thus, the learned senior counsel appearing for the defendant submitted that the conduct of the party herein is nothing but sheer abuse of process of Court in respect of the matter which has already been litigated by his predecessor and reached finality and thus, he sought for rejection of the plaint. 11. Countering the said submissions, learned senior counsel appearing for the plaintiff has made the following submissions:- (A) Whether the suit is hit by Order 2 Rule 2 C.P.C., is a matter of evidence and the same will not serve as a ground for rejection of the plaint. For the purpose of deciding the application under Order VII Rule 11 C.P.C., the Court has to examine only the averments made in the plaint. The pleas taken by the defendant in the written statement would be irrelevant and that no amount of evidence can be looked into. For the purpose of deciding the application under Order VII Rule 11 C.P.C., the Court has to examine only the averments made in the plaint. The pleas taken by the defendant in the written statement would be irrelevant and that no amount of evidence can be looked into. Thus, learned senior counsel submitted that all the submissions made by the learned senior counsel appearing for the defendant have to be decided only at the time of trial. In this regard, learned senior counsel has also relied upon the following judgments:- (i)(2004) 3 Supreme Court Cases 277 - Kunjan Nair Sivaraman Nair v. Narayanan Nair and others. (ii) (2005) 7 Supreme Court Cases 510 - Popat and Kotecha Property v. State Bank of India Staff Association. (iii) (2008) 4 Supreme Court Cases 594 - Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs and others. (iv) (2014) 6 Supreme Court Cases 424 - Coffee Board v. Ramesh Exports (P) Ltd. Thus, by relying upon the above said judgments, learned senior counsel appearing for the plaintiff has submitted that as the plea taken by the defendant is a technical bar, it has to be established satisfactorily and the same cannot be decided under Order 7 Rule 11 C.P.C. (B) With regard to the submission made by the learned senior counsel appearing for the defendant that the present is suit hit by Order 9 Rule 9 C.P.C., it is the reply of the learned senior counsel appearing for the plaintiff thatonly those suits, which had been dismissed under Order 9 Rule 8 C.P.C., are covered by the provisions of Order 9 Rule 9 C.P.C. In the instant case, the suit in O.S.No.7345 of 2001 filed by the vendors of the plaintiff was not dismissed under Order 9 Rule 8 C.P.C. Therefore, the dismissal of the earlier suit will not be a bar for filing a fresh suit in the same cause of action. In support of this contention, learned senior counsel appearing for the plaintiff has relied on an unreported judgment in the case of Smt. Karmi Devi v. Satendra Kumar Sing & anor. made in M.A.No.381 of 2007. In support of this contention, learned senior counsel appearing for the plaintiff has relied on an unreported judgment in the case of Smt. Karmi Devi v. Satendra Kumar Sing & anor. made in M.A.No.381 of 2007. (C) With regard to the submission made by the learned senior counsel appearing for the defendant that the present is suit hit by Order 23 Rule 1(4) C.P.C., learned senior counsel appearing for the plaintiff submitted that Order 23 Rule 1(4) C.P.C. has no application in this case and the provisions of Order 23 Rule 1(4) C.P.C. will be attracted only if the plaintiff had relinquished or abandoned his claim under Order 23 Rule 1 C.P.C. (D) With regard to the submission made by the learned senior counsel appearing for the defendant that the present suit is hit by Section 11 C.P.C., learned senior counsel appearing for the plaintiff submitted that the exparte judgment passed in O.S.No.7574 of 2010 is not a judgment in the eye of law and therefore, the same cannot be a bar for filing the present suit. In any event, whether the suit is hit by Section 11 C.P.C. has to be decided only at the time of trial and the same will not serve as a ground to reject the plaint. In this connection, learned senior counsel has relied upon the judgment reported in 2011 - (3) CTC 168 - M/s.Meenakshisundaram Textiles v. M/s.Valliammal Textiles Ltd., wherein the Division Bench of this Court has held has follows:- " 20. It is also relevant to point out that under Section 96(2) of the Code of Civil Procedure, an appeal may lie from an original decree passed ex parte. Two remedies are available to an aggrieved person to question the ex parte decree. One is that he may file an application to set aside the ex parte decree as provided under Order IX Rule 13 of Code of Civil Procedure. In such event, the Court which passed the judgment and decree will have to consider the reasons for setting aside such judgment and decree, which may be more or less the explanation as to the failure of non-appearance. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. In case an appeal is laid, in the absence of reasons in the judgment, the appellate Court has to necessarily remand the case to the trial Court for fresh consideration. For that reason, the judgment should contain the reasons and should be in conformity with the provisions of Section 2(9) read with Order XX Rule 4 of the Code of Civil Procedure. 21. From the above discussions, it is manifestly clear that even a judgment rendered ex parte and a decree is drawn on the basis of that judgment, it is appealable. In case that judgment and decree become final without there being any appeal, the decree is executable. In that sense, there is no difference between a judgment and decree and an ex parte judgment and decree. In view of the above, in the event the defendant is set ex parte, the Court should be extra careful in such case and it should consider the pleadings and evidence and arrive at a finding as to whether the plaintiff has made out a case for a decree. In this context, it may also be mentioned that though a detailed judgment is required in a contested matter, an ex parte judgment should show the application of the minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment." Thus, by relying upon the above judgment, the learned senior counsel appearing for the defendant submitted that while delivering the exparte judgment, the Court should consider the pleadings, issues, evidence and the relief sought for. If an exparte judgment is passed without considering the pleadings, issues, evidence and the relief sought for, such an exparte judgment is not a judgment in the eye of law. In the instant case, while delivering the exparte judgment in O.S.No.7475 of 2010, the Court concerned has not considered the pleadings, issues, evidence and the relief sought for. Hence, the judgment passed in O.S.No.7574 of 2010 cannot act as res judicate to the present suit. In the instant case, while delivering the exparte judgment in O.S.No.7475 of 2010, the Court concerned has not considered the pleadings, issues, evidence and the relief sought for. Hence, the judgment passed in O.S.No.7574 of 2010 cannot act as res judicate to the present suit. (E) With regard to the submission made by the learned senior counsel appearing for the defendant that the plaint is liable to be rejected on the ground of abuse of process of law and for suppression of facts, learned senior counsel appearing for the plaintiff submitted that the plaintiff is not re-litigating the matter and in fact, he was not aware of the earlier litigation at the time of purchasing the property. In any way, the abuse of process of Court or misrepresentation or fraud in filing the suit cannot be a ground for rejection of the plaint under Order VII Rule 11 C.P.C. In this regard, learned senior counsel appearing for the defendant has relied upon the judgment of this Court made in S.A.No.711 of 2009 in the case of R.Arumugam v. Pr.Palanisamy. Thus, the learned senior counsel appearing for the plaintiff sought for the dismissal of the application for rejection of the plaint. 12. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. 13. The main submission made by the learned senior counsel appearing for the defendant that the present suit is hit by Order 2 Rule 2 C.P.C. is only a technical bar and as such, as to whether the suit is hit by Order 2 Rule 2 C.P.C. has to be decided only at the time of trial. In fact, the judgments relied on by the learned counsel appearing for the defendant in this regard are not on an application filed under Order VII Rule 11 C.P.C., except two judgments relied upon by the learned senior counsel appearing for the plaintiff reported in (2005) 5 Supreme Court Cases 548 - N.V.Srinivasa Murthy and others v. Mariyamma (dead) by proposed LRs. and another and (2014) 3 Supreme Court Cases 595 - State Bank of India v. Gracure Pharmaceuticals Limited. and another and (2014) 3 Supreme Court Cases 595 - State Bank of India v. Gracure Pharmaceuticals Limited. A careful reading of the said judgments would show that on a perusal of the pleadings found in the plaint, the Hon'ble Supreme Court has come to the conclusion that the suits are hit by Order 2 Rule 2 C.P.C. and since from the averments made in the plaint in those cases themselves would show that the plaintiffs in that suit have relinquished a portion of their claim in the earlier suits though the cause of action for making such a claim was available to the plaintiff while filing the earlier suits. In the instant case, absolutely no such averment is available in the plaint. Unless the averment in the plaint shows that the plaintiff has deliberately omitted to make a claim in the earlier suit in spite of the fact that the cause of action for making such a claim was available even at the time of filing of the earlier suit, the plaint cannot be rejected on the ground that the suit is hit by Order 2 Rule 2 CPC based on the defence taken by the defendants. In fact, it is the case of the plaintiff that he was not aware of the earlier proceedings between his vendors and the original owners. The cause of action for filing the present suit is on the allegation that the defendant has trespassed into the suit property. The defendant appears to have trespassed into the suit property in the third week of June, 2011 and commenced construction. Therefore, according to the plaintiff, the cause of action for the present suit and the earlier suit is not one and the same. Whether the said allegation is true or not, has to be decided only at the time of trial. On a mere reading of the plaint, I am of the opinion, since it is not apparent from the plaint that the suit is hit by Order 2 Rule 2 CPC, the plaint cannot be rejected at the threshold stage. Whether the said allegation is true or not, has to be decided only at the time of trial. On a mere reading of the plaint, I am of the opinion, since it is not apparent from the plaint that the suit is hit by Order 2 Rule 2 CPC, the plaint cannot be rejected at the threshold stage. In this regard, a reference could be placed in the judgments reported in (2004) 3 Supreme Court Cases 277 - Kunjan Nair Sivaraman Nair v. Narayanan Nair and others and (2014) 6 Supreme Court Cases 424-Coffee Board v. Ramesh Exports (P) Ltd. A reading of the above judgments would show that the bar under Order 2 Rule 2 CPC must be specifically pleaded by the defendant in the suit and the trial Court should specifically frame a specific issue in this regard wherein the pleading in the earlier suit must be examined and the plaintiff should be given an opportunity to demonstrate that the cause of action in the subsequent suit is different. Therefore, in my considered opinion, when it is not apparent from the averments made in the plaint that the suit is hit by Order 2 Rule 2 CPC., the same has to be proved on the side of the defendant by producing the pleadings and evidence adduced in the earlier suit and hence, whether the suit is hit by Order 2 Rule 2 CPC has to be decided only at the time of trial. 14. (i) It is yet another submission of the learned senior counsel appearing for the defendant that the suit filed by the plaintiff's vendors in O.S.No.7345 of 2001 was dismissed for default and to set aside the said order, an application in I.A.No.13580 of 2006 was filed under order 9 Rule 9 C.P.C. with delay. The said application was allowed by imposing condition. Since the said condition was not complied with, the said application was dismissed on 28.2.2007. Hence, there is a bar under Order 9 Rule 9 C.P.C. to file a fresh suit. But, it is the reply of the learned senior counsel appearing for the plaintiff that under Order 9 Rule 9 C.P.C., only those suits which had been dismissed under Order 9 Rule 8 C.P.C. alone are covered. Hence, there is a bar under Order 9 Rule 9 C.P.C. to file a fresh suit. But, it is the reply of the learned senior counsel appearing for the plaintiff that under Order 9 Rule 9 C.P.C., only those suits which had been dismissed under Order 9 Rule 8 C.P.C. alone are covered. If the suit is dismissed other than the provision under Order 9 Rule 8 C.P.C., filing of a fresh suit is not barred under Order 9 Rule 9 C.P.C. In this regard, it would be appropriate to extract Order 9 Rule 9 C.P.C. and the same is extracted hereunder:- ORDER IX. APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE 1. Parties to appear on day fixed in summons for defendant to appear and answer On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. [2. Dismissal of suit where summons not served in consequence of the plaintiffs failure to pay cost Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.] 1. Rule 2 was substituted by Act No. 46 of 1999. section 19 and now again substituted by Act No. 22 of 2002. Section 10(w.e.f. 1-7-2002). 3. Where neither party appears, suit to be dismissed Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. 4. Plaintiff may bring fresh suit or Court may restore suit to file. section 19 and now again substituted by Act No. 22 of 2002. Section 10(w.e.f. 1-7-2002). 3. Where neither party appears, suit to be dismissed Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. 4. Plaintiff may bring fresh suit or Court may restore suit to file. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for 1[such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. 1. Ins. by Art No. 104 of 1976 (w.e.f. 1-2-1977). 5. Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons (1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of 1[seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that— (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. 1. Subs, by Act No. 46 of 1999, section 19 (w.e.f. 1-7-2002) for one months". 6. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. 1. Subs, by Act No. 46 of 1999, section 19 (w.e.f. 1-7-2002) for one months". 6. Procedure when only plaintiff appears (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then— [(a)] When summons duly served—if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex pane.] (b) When summons not duly served—if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time—if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. 1. Subs, by Act No. 104 of 1976 for clause (a) (w.e.f 1-2- 1977). 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance. 8. Procedure where defendant only appears Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. 9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 10. Procedure in case of non-attendance of one or more of several plaintiffs Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit. 11. Procedure in case of non-attendance of one or more of several defendants Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. 12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do no appear. Setting aside decrees ex parte 13. Setting aside decrees ex parte 13. Setting aside decree ex parte against defendant In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim] [Explanation.—Where there has been an appeal against a decree passed exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] 1. Added by Act No. 104 of 1976 (w.e.f. 1-2-1977). 2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977). 14. No decree to be set aside without notice to opposite party No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party. Added by Act No. 104 of 1976 (w.e.f. 1-2-1977). 2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977). 14. No decree to be set aside without notice to opposite party No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party. From a reading of the above provision, it could be seen that if there is any failure on the part of the plaintiff to pay the Court fee or postal charges, if any, chargeable for such service or failure to furnish copies of the plaint as required by Rule 9 of Order VII, the Court can pass an order dismissing the suit under Order 9 Rule 2 C.P.C. (ii) Similarly, if neither party appears when the suit is called on for hearing, the Court can dismiss the suit under Order 9 Rule 3 C.P.C. (iii) When the suit is dismissed either under Order 9 Rule 2 C.P.C. or under Order 9 Rule 3 C.P.C., the plaintiff can either bring a fresh suit or he can file an application to set aside the dismissal order under Order 9 Rule 4 CPC. (iv) Similarly, if the suit is dismissed under Order 9 Rule 5 C.P.C., the plaintiff can bring a fresh suit. Only if the suit is dismissed under Order 9 Rule 8 CPC for non appearance of plaintiff alone, where the defendants appears, then fresh suit is barred under Order 9 Rule 9 C.P.C. But, in the instant case, the suit in O.S.No.7345 of 2001 was dismissed for non appearance of both the parties. For better appreciation, it would be appropriate to extract the judgment made in O.S.No.7345 of 2001 and the same is extracted hereunder:- " Suit for permanent injunction and for costs. 2. Plaintiff and defendants are called absent. No representation for both sides. Plaintiff called absent. Suit is dismissed for default. No costs." Therefore, from the judgment passed in O.S.No.7345 of 2001, it is clear that the said suit was dismissed only under Order 9 Rule 3 C.P.C. Therefore, the plaintiff can bring a fresh suit as per Order 9 Rule 4 C.P.C. Therefore, Order 9 Rule 9 C.P.C. will not act as a bar to the present suit. No costs." Therefore, from the judgment passed in O.S.No.7345 of 2001, it is clear that the said suit was dismissed only under Order 9 Rule 3 C.P.C. Therefore, the plaintiff can bring a fresh suit as per Order 9 Rule 4 C.P.C. Therefore, Order 9 Rule 9 C.P.C. will not act as a bar to the present suit. Further, it is the submission of the learned senior counsel appearing for the defendant that after the dismissal of the suit, a restoration application was filed and in that application, an order was passed imposing costs. But, since the cost was not paid, the said application was dismissed and hence, there is a bar to file a fresh suit. But, in my considered opinion, when the said suit was dismissed for non-appearance of both the parties, the subsequent dismissal of the application for restoration has no significance in this matter. Therefore, I am not inclined to accept the said submission of the learned senior counsel appearing for the defendant. In this regard, it would be appropriate to rely upon the judgment in the case of Smt. Karmi Devi v. Satendra Kumar Sing & anor., made in M.A.No.381 of 2007, wherein, it has been held as follows:- "15. In the light of the provisions contained in Order 9 and the law discussed hereinabove, it can be safely concluded that in case of dismissal of suit under Order 9 Rule 4 C.P.C. the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them. 20. From a plain reading of the term 'decree', it is manifestly clear that to constitute a decree, there must be a formal expression of an adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit, but the decree shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It is, therefore, evidently clear that a dismissal of a suit or application for default particularly under rule 2 or Rule 3 of Order 9 C.P.C. is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit. An order of dismissal of a suit or application in default is also not appellable order as provided under Order 43 of the Code of Civil Procedure. If we read Order 43 C.P.C., we will find that orders passed under Order 9, Rule 9 C.P.C. or Order 9 Rule 13 C.P.C. are made appellable but order passed under Order 9 Rule 4 C.P.C. is not appellable. It is, therefore, clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order 9 C.P.C. is neither an adjudication or a decree nor it is an appellable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order 9 C.P.C. does not fulfill the requirement of the term 'judgment' or 'decree', inasmuch as there is no adjudication. In my considered opinion, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata." A reading of the above judgment would show that a mere dismissal of a suit for default will not a bar for filing a fresh suit unless it is shown that the suit had been dismissed under Order 9 Rule 8 C.P.C. An order of dismissal under Rule 2 or Rule 3 of Order 9 C.P.C. is neither an adjudication nor a decree nor it is an appellable order. Besides, it must also be shown that the subsequent suit is based on the same cause of action. Hence, in my opinion, since the suit has been dismissed for non appearance of both the parties, under Order 9 Rule 3 C.P.C., there is no bar to file a fresh suit. Besides, it must also be shown that the subsequent suit is based on the same cause of action. Hence, in my opinion, since the suit has been dismissed for non appearance of both the parties, under Order 9 Rule 3 C.P.C., there is no bar to file a fresh suit. (v) In yet another decision relied on by the learned senior counsel appearing for the plaintiff reported in (2004) 3 Supreme Court Cases 277 - Kunjan Nair Sivaraman Nair v. Narayanan Nair and others, based on the factual background of that case, it has been held that the cause of action for a suit for injunction and the cause of action for a suit for declaration and recovery of possession is totally different. Even in the present case, the earlier suit in O.S.No.7345 of 2001 was filed by the vendors of the plaintiff viz., R.P.Natarajan and his mother only for permanent injunction and not for declaration. Therefore, as to whether the cause of action for filing both the suits are one and the same or different, has to be decided only after recording the evidence. Therefore, I am of the opinion, the ground raised by the learned senior counsel appearing for the defendant for rejection of the plaint under Order 9 Rule 9 is not sustainable. 15. Yet another submission of the learned senior counsel appearing for the defendant is that the exparte decree passed in O.S.No.7574 of 2010 filed by the defendant will operate as res judicata. But, in my considered opinion, the plea of res judicata cannot be decided in the application for rejection of the plaint since the Court has to peruse the earlier plaint, proof affidavit, documents filed in support of the claim, the judgment of the Court, etc. to decide what was actually decided in the suit. Therefore, the plea of res judicata has to be decided only at the time of trial by framing appropriate issues. 16. It is the next submission of the learned senior counsel appearing for the defendant that the suit is hit by Order 23 Rule 1(4) C.P.C. since the vendors of the plaintiff have not asked for a prayer of declaration and they abandoned the claim in the earlier suit filed by them in O.S.No.7345 of 2001. 16. It is the next submission of the learned senior counsel appearing for the defendant that the suit is hit by Order 23 Rule 1(4) C.P.C. since the vendors of the plaintiff have not asked for a prayer of declaration and they abandoned the claim in the earlier suit filed by them in O.S.No.7345 of 2001. But, in my considered opinion, only if the plaintiff had relinquished or abandoned his claim under Order 23 Rule 1 C.P.C. for which an application has to be filed under Order 23 Rule 2 C.P.C. and if the Court adjudicates the same and permits the plaintiff to abandon or relinquish the claim in toto or in part then the provisions of Order 23 Rule 1(4) C.P.C. will be attracted. But, the provisions of Order 23 Rule 1(4) C.P.C. has no application to the suits which were dismissed for default, as they are governed by the provisions of Order 9 of C.P.C. 17. It is the further submission of the learned senior counsel appearing for the defendant that the plaint is liable to be rejected on the ground of abuse of process of law and suppression of facts since the plaintiff is trying to re-litigate the issues. According to the plaintiff, absolutely, there is no re-litigation and the plaintiff was not aware of the earlier litigation at the time of purchase between the plaintiff's vendors and the defendant. Even if the earlier litigation involving his vendors is binding on the plaintiff, as long as the issue of title to the suit property had not been decided by any Court, the plaintiff is entitled to maintain the present suit. Further, the contention of the defendant that the plea of abuse of process of law will not serve as a ground for rejection of the plaint. In this regard, learned senior counsel appearing for the plaintiff has riled upon the judgment of this Court made in S.A.No.711 of 2009 in the case of R.Arumugam v. Pr.Palanisamy, wherein this Court has held as follows:- " 10. A reading of the said rule will show that neither suppression of fact nor misrepresentation, not even fraud, has been made a ground for rejection of plaint. Even the rule does not include abuse of process of court as a ground for rejection of plaint. A reading of the said rule will show that neither suppression of fact nor misrepresentation, not even fraud, has been made a ground for rejection of plaint. Even the rule does not include abuse of process of court as a ground for rejection of plaint. Clauses (a) and (d), which deal with absence of disclosure of cause of action and the suit appearing from the statement to be barred by any law. Whether the plaint discloses a cause of action for the suit or not, has got to be decided only based on the averments made in the plaint and the documents produced along with the plaint. The cause of action alleged may not be true or may be a deliberate falsehood. The court dealing with a petition under Order VII Rule 11 cannot go into the question whether cause of action alleged in the plaint is true or false and take a decision based on the defence plea taken by the defendant or based on the documents produced by the defendant. On the other hand, there may be cases in which the plea made in the plaint itself having the effect of destruction of the plea regarding the cause of action and making such plea regarding cause of action illusory. Only in such cases, the court has to decide whether the cause of action alleged in the plaint is real or that the plaint has been drafted in an intelligent manner to camouflage an illusory cause of action as a real cause of action. A cause of action alleged in the plaint being illusory different from the cause of action alleged in the plaint being false. Only in the former case, the court can reject the plaint on the ground that the plaint does not disclose a cause of action and not in the latter case. 11. Citation of a false cause of action, fraud, misrepresentation or the filing of the suit being an abuse of process of court, can, at the best, be projected as a preliminary issue. All questions, which can be decided as preliminary issues, cannot be made as grounds for rejection of the plaint unless the ground is brought within the purview of Order VII Rule 11 CPC. All questions, which can be decided as preliminary issues, cannot be made as grounds for rejection of the plaint unless the ground is brought within the purview of Order VII Rule 11 CPC. The distinction between the rejection of a plaint under Order VII Rule 11 CPC and the dismissal of the suit on a preliminary issue should be kept in mind. In case of rejection of plaint, the same will not bar a fresh suit. Rule 13 under Order VII CPC provides for the same, which reads as follows: 13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But the dismissal of the suit on the question of maintainability and on the other hand, based on the decision regarding a preliminary issue operates as a bar for a fresh suit on the same cause of action. Even the question of jurisdiction and a bar created to the suit by any law for the time being in force, if it is raised in the defence plea that cannot be the ground on which the plaint can be rejected unless the attraction of such a bar is manifest from the pleadings made in the plaint. Without the aid of the defence pleadings or any other document, the statements made in the plaint themselves should make it appear that the suit is barred by any law for the time being in force as contemplated in sub clause (d) of Rule 11 of Order VII CPC. If such a question of attraction of a bar to the suit created by any law for the time being in force is raised in the written statement or the defence plea, the same can be tried as a preliminary issue under Order XIV Rule 2(2) of CPC. This position has been made clear in a number of judgments by the Hon'ble Apex Court and it shall be sufficient to refer to some of the recent judgments of the Apex court. 13. ... " 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. This position has been made clear in a number of judgments by the Hon'ble Apex Court and it shall be sufficient to refer to some of the recent judgments of the Apex court. 13. ... " 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 14. ... " 8. The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. " On a perusal of the said judgment, I am of the opinion, false cause of action, fraud, misrepresentation for filing of the suit being a abuse of process of Court, cannot be made as a ground for rejection of the plaint. Because, the same will not fall within the purview of Order VII Rule 11 C.P.C. Though the learned senior counsel appearing for the defendant has submitted that there is suppression of facts since the plaintiff has not referred the earlier suits, it is the reply of the learned senior counsel appearing for the plaintiff that the plaintiff was not aware of the earlier proceedings between the vendors of the plaintiff and the defendant. Therefore, this question has also to be decided only at the time of trial. 18. Thus, in my considered opinion, the entire submissions made by the learned senior counsel appearing for the defendant are all only technical bars to entertain the suit and the same will not fall under Order VII Rule 11 C.P.C. All the issues raised by the learned senior counsel appearing for the defendant have to be decided only at the time of trial by framing appropriate issues. The plaint cannot be rejected at the threshold stage because at the stage of application under Order VII Rule 11 C.P.C., this Court has to examine only the averments made in the plaint and not the defence taken by the defendant. The plaint cannot be rejected at the threshold stage because at the stage of application under Order VII Rule 11 C.P.C., this Court has to examine only the averments made in the plaint and not the defence taken by the defendant. Therefore, I am of the opinion, no case has been made out by the defendant to reject the plaint under Order VII Rule 11 C.P.C. Hence, the application is liable to be dismissed. 19. Accordingly, the present application is dismissed.