Koduru Varalakshmamma and Others vs Tata Raghavula and Another

Rama Rao, J.—The revision petition arises out of a petition filed under Order 2 Rule 2 CPC filed by the plaintiffs seeking to reserve their right to file a separate suit against the defendants for recovery of the maktha due for the year 1980-81. The plaintiffs filed the suit for recovery of maktha for the years 1977-78, 1978-79, 1979-80. But, the claim for the year 1980-81 is not included in the suit and filed an application to reserve their right to file a separate suit for the maktha due for the year 1980-81 and filed this application to save the bar under Order 2 Rule 2 CPC. This application is resisted by the defendants on the ground that this petition is not maintainable as the plaintiffs have chosen to file a suit for the arrears of rent for some years only and they cannot subsequently sue for the rents already due by the time the suit is filed and this application for reserving the right to file a separate suit is not contemplated under Order 2 Rule 2 CPC. The Court below held that a subsequent suit for recovery of rent for the year 1980-81 forms part of the cause of action or the relief for the earlier years and as such Order 2 Rule 2 CPC is a bar for filing a separate suit and in this view dismissed the application.

The Learned Counsel for the petitioners contends that Order 2 Rule 2 CPC specifically provides for a reservation of the claim to a future date and therefore this application is maintainable. To appreciate this contention it is necessary to extract Order 2 Rule 2 CPC which is as follows:

Order 2 Rule 2:

Suit to include the whole claim:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court:

(2) Relinquishment of part of claim:

Where a plaintiff omits to sue in respect of, or intentionally relinquished, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs:

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs: but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation: For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Order 2 Rule 2 CPC provides that the entire claim should be compressed within the suit in respect of the same cause of action and in the event of any omission of the claim the plaintiff is precluded from agitating the said claim subsequently. Sub-Rule (3) of Rule 2 provides that in a situation where the plaintiff is entitled to more than one relief in respect of the same cause of action and if he omits to initiate proceedings for anyone of the reliefs he is precluded from pursuing the relief at a later stage except with the leave of the court. On the assumption that the cause of action is the same for all the years, the plaintiffs filed an application that in so far as the year 1980-81 is concerned, the relief may be deferred to a future date and this application is virtually for the purpose of saving the bar under Order 2 Rule The permission to pursue the relief at a future date is contemplated under Order 2 Rule 2(3) and with the leave of the court the relief can be postponed. The scope of Order 2 Rule 2 CPC is considered by a Division Bench of this Court in P. Venkataratnamma v. Sundara Ratnamma 1983(2) APLJ 420, wherein the Division Bench held as follows:

Order Rule 1 and 2 CPC are designated to arrest the proliferation of litigation. Rule 2 interdicts the filing of different suits in respect of multiple reliefs springing from the same cause of action. In the event of a cause of action prouting plurality of reliefs the suit comprising the entirety of reliefs has to be filed to save the bar under Rule 2. This provision seeks to set at naught the series of suits on the same cause of action. In the event of shrinking or confining the suit to some reliefs only the subsequent suit in respect of remainder reliefs is precluded.

In Chittoori Swamy v. Ravulu Suryanarayana (1970) 2 An. W.R. 173, a Division Bench of this Court in the context of considering the petition filed by the landlord for eviction under the A.P. Tenancy Act, in relation to the bar under Order 2 Rule 2 CPC on the ground that the landlord should have included the claim for eviction for default for 1956-57 and for failure to pay the rent for 1957-58, it is held as follows:

The relief of eviction enures to the landlord for each successive defaults committed by the tenant. Default in each year constitutes a separate cause of action for the eviction of the tenant. The cause of action for the default committed in respect of 1956-57 is a distinct cause of action from the default committed in respect of 1957-58, though the relief that would be ultimately granted in respect of these successive defaults may be the same relief of eviction. Order 2 Rule 2 does not require that the relief of eviction based on distinct cause of action should be included in the same suit.

Each year is a self-contained unit for the purpose of payment of payment of rent. The default in each year constitutes an independent cause of action and therefore, the question of arrears of rent for the different years coming within the purview of the same cause of action does not arise. Even if assuming that the reliefs are the same. The plaintiff has filed an application to enable him to postpone the proceedings for the relief and also for recovery of arrears of rent as contemplated under Rule 3. In a situation where the plaintiffs seeks to defer the filing of the suit for the subsequent years, the court can permit him to do so as provided under Rule 3. The court below erred in declining to grant the leave on extraneous and untenable grounds. The Learned Counsel for the respondent invited my attention to a decision of this Court reported in Arikatla Venkata Swami (died) and Others Vs. Mavillapalli Veeraiah and Others, This is a decision in a suit by reversioners for possession of several items of property where some items have been left and it was considered whether Order 2 Rule 2 CPC constitutes a bar for filing a suit in respect of the items that have been left out in the prior suits. It is obvious that the cause of action is the same for the entire properties and it cannot be said that there is a distinct cause of action for each item of property. The basis for a suit by a reversioner is his right to succeed to the estate and his estate comprising several items of property should be the subject matter of a single suit and estate cannot be parcelled out into separate items and on this basis separate suits are not visualized.

In the result the order of the court below is set aside; the C.R.P. allowed. I.A. No. 654 of 1984 is allowed. No costs.