Ramachandran vs Baskar Sethupathi

R.S. Ramanathan, J.—The defendant is the revision petitioner herein. The respondent/plaintiff filed the suit for declaration and injunction,

stating that the suit schedule property is a vacant site and he is the owner of the suit property and as the revision petitioner/defendant attempted to

interfere with his peaceful possession and enjoyment of the suit property and also questioned the title, he filed the suit for the reliefs, as stated

above. The respondent/plaintiff also filed an application under Order 6, Rule 17 of C.P.C., within three months from the date of filing of the suit to

add the relief of recovery of possession, stating that, after the filing of the suit, the revision petitioner trespassed into the suit property and put up a

house construction, despite objections raised by the respondent/plaintiff. Therefore, the prayer for the relief of injunction has to be deleted and the

prayer for recovery of possession has to be included. That application was allowed. Aggrieved by the same, the present Civil Revision Petition is

filed.

The learned counsel appearing for the revision petitioner submitted that even on the date of filing of the suit, the revision petitioner had

completed construction in the suit property and the respondent was also aware of the same and to prove the said fact, the revision petitioner also

filed nine documents, which are marked as Exhibits R-1 to R-9, before the Court below, which would prove that there was a house construction,

prior to the filing of the suit and the revision petitioner also got electricity connection and was assessed to property tax in respect of that house.

Therefore, on the date of filing of the suit itself, the respondent had cause of action to seek the relief of recovery of possession, and he deliberately

omitted to file the suit for recovery of possession and prayed for injunction. Hence, subsequently, the respondent cannot amend the prayer by

including the relief of recovery of possession, which was available to him, when the plaint was filed. Hence, the Court below ought not to have

allowed the application. The learned counsel also relied upon a judgment in Bhagavatula Gopalakrishnamurthi and Others Vs. Dhulipalla Sreedhara

Rao and Another, in support of his contention.

It is further submitted by the learned counsel for the revision petitioner that under Order 2, Rule 2 CPC, when the plaintiff has asked for various

reliefs and omitted to ask for such reliefs in the suit filed by him, he cannot afterwards sue in respect of the relief, which was omitted by him or

relinquished by him, except, with the leave of the Court. Therefore, the only option open to the respondent is to withdraw the suit with liberty to file

a fresh suit to include the relief of declaration and recovery of possession. The Court below, without considering these aspects, allowed the

application.

I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly, the suit was filed for declaration and for

injunction. It is alleged by the respondent/plaintiff in the plaint that on 1.3.2010, the revision petitioner attempted to interfere with his possession of

the property, by digging a pit and that was prevented and therefore, he filed the suit for declaration. The suit was filed on 6.4.2010, and the

application to amend the plaint was filed on 27.7.2010. In the affidavit filed in support of the application for amendment, it is stated by the

respondent/plaintiff that on 1.3.2010, the revision petitioner/defendant attempted to dig a pit and after the filing of the suit, despite objections raised

by the respondent, the revision petitioner trespassed into the suit property in the month of May and put up a house construction. On that basis, the

respondent sought for the deletion of the prayer of injunction and for inclusion of the prayer of recovery of possession. Though the revision

petitioner filed nine documents to prove that he has put up a construction, even prior to the filing of the suit, and though some of the documents are

earlier to the filing of the suit, at this stage, it cannot be decided whether those documents relate to the suit property.

Further, even according to the revision petitioner, construction was completed in the year, 2009 and assessment was made in January, 2010.

Therefore, the suit for recovery of possession will also lie against the revision petitioner, as the same is not barred by limitation, even assuming that

the revision petitioner has put up a construction, prior to the filing of the suit, as contended by the learned counsel for the revision petitioner and the

respondent ought to have prayed for the relief of recovery of possession, when he filed the suit. As per Order 2 Rule 2 of C.P.C., the suit shall

include whole of the claim, which the plaintiff is entitled to make in respect of the cause of action, and if the plaintiff omits to sue in respect of any

portion of his property, he shall not afterwards sue in respect of the portion so omitted or relinquished. Order 2 Rule 2(3) C.P.C., is an exception

of Order 2 Rule 2(2) and as per Order 2 Rule 2(3), if a person omits to include all reliefs, which he is entitled to in respect of the same cause of

action, he is entitled to include that relief with the leave of the Court. Therefore, there is no absolute bar under C.P.C., which prohibits a person

from claiming such relief, which he was entitled to, at the time of filing of the suit, but, omitted to include the same. Order 2 Rule 2(3) enables the

party to get the leave of the Court to include those reliefs, which are omitted by him at the time of filing of the suit and after getting leave of the

Court, the same can be included. In other words, in respect of relief, which are available to the plaintiff at the time of filing of the suit, and which are

not prayed for, can be prayed for later, after getting leave of the Court.

Therefore, under the provisions of Order 2 Rule 2(3), leave has to be obtained by the respondent/plaintiff to include the reliefs, which were

omitted to be asked at the time of filing of the suit and in my opinion, the filing of application under Order 6, Rule 17 amounts to obtaining leave

from the Court to include the relief, which was omitted. Further, as stated supra, the relief for recovery of possession is not barred by limitation and

the respondent/plaintiff can very well withdraw the suit and file a fresh suit, after getting leave of the Court to include the relief of recovery of

possession. But, the object of Order 6 Rule 17 is to avoid multiplicity of proceedings and by the application filed by the respondent/plaintiff,

another round of litigation between the parties is also avoided. Considering all these aspects, the Court below has rightly allowed the application

and I do not find any infirmity in the order passed by the Court below.

In the judgment relied upon by the learned counsel for the revision petitioner, viz., the decision rendered in Bhagavatula Gopalakrishnamurthi

and Others v. Dhulipalla Sreedhara Rao and Another (supra) this Court refused to allow the amendment on the ground that by allowing the

amendment, new case has been made, which was available to the party, when the suit was filed. In the case on hand, the suit is for declaration and

prayer for injunction or recovery of possession is a consequential relief based upon the main relief of declaration and therefore, by deleting the

prayer of injunction, and substituting the same by the relief of recovery of possession, no new case has been made out by the respondent/plaintiff

and therefore, the judgment relied upon by the learned counsel for the revision petitioner cannot be applied to the facts of the present case. In the

result, the civil revision petition fails and it is dismissed accordingly. The revision petitioner is entitled to file additional written statement and he is

directed to file the same, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected

Miscellaneous Petition is closed.