AI Structured Summary
Not yet generated for this judgment
Judgment
Soumen Sen, J.—This is an application at the instance of the defendant No. 2 for dismissal of the suit.
The plaintiff has filed this suit praying, inter alia, for the following reliefs:-
"a) A decree of declaration that the plaintiff was and still is a tenant of different portions of the said premises being premises No. 16, Strand Road, Kolkata (also known as 2, Fairlie Place, Kolkata) comprising of ground floor, Mezzanine floor, 2nd Floor, 3rd Floor, 4th Floor and roof having 97711.45 Sq. Ft. as described in Schedule B to the plaint;
b) A decree of declaration against both the defendants that the plaintiff is entitled to the peacefully use, enjoyment and occupation of the said tenanted portions without any interference and obstruction from the defendants and/or its servants, agents and assigns in any manner whatsoever;
c) A decree for perpetual injunction restraining the defendants and each of them and/or their servants, agents and assigns from taking any step or further steps from demolishing and/or from interfering with any part of the tenanted portions of the said Premises thereby interfering with the plaintiff''s right to peaceful use, enjoyment and occupation of the said premises;
d) A decree for Mandatory Injunction, directing both the defendants and/or their servants, agents and assigns to carry out the necessary repairs forthwith of the tenanted premises including the ground floor, mezzanine floor, 2nd floor, 3rd floor and 4th floor and roof of the said premises so as to enable the plaintiff to get peaceful use, enjoyment and occupation of its tenanted portions comprised in the said Premises.
e) Decree for restoration of and/or delivery of vacant and peaceful possession and/or occupation of all portions of the said demise made by the defendant No. 1 in favour of the plaintiff at the said premises and the plaintiff be put back into tenantable and habitable occupation of all portions of the said premises that were demised in the plaintiff''s favour, and such decree be passed against both the defendants jointly, severally or in the alternative.
f) A decree for total abatement of rent with effect from 7.11.1998 for not allowing the plaintiff to use the said tenanted portion described in the Schedule being Annexure - B to the plaint till its making habitable condition for normal and proper use of the plaintiff;
g) A decree of declaration that the plaintiff is entitled to an amount of Rs. 57,76,800/- (Rupees Fifty seven lacs seventy six thousand and eight hundred only) from the defendant No. 1 and decree if necessary for payment of the same together with interest thereon.
h) A decree of declaration that an amount of Rs. 57,76,800/- (Rupees fifty seven lacs seventy six thousand eight hundred only) is to be adjusted with future rent of the said premises @ Rs. 2,93,134/- per month as rent for the said premises till full realization of the said due amount being Rs. 57,76,800/- (Rupees Fifty seven lacs seventy six thousand eight hundred only);
i) A decree for damages for Rs. 22 crores (Rupees Twenty two crores only) is claimed in paragraph 15 hereof, alternatively an inquiry be made into the loss and damage suffered by the plaintiff and decree be passed for the sum found due upon such inquiry together interest:
j) Receiver;
k) Injunction;
l) Attachment;
m) Costs;
n) Such further or other reliefs."
The said suit was instituted after obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure. Prior to the institution of the suit, the plaintiff has filed a prior suit praying, inter alia, for the following reliefs:-
"(a) Declaration that the plaintiff was and still is a tenant of different portions of the said premises being premises No. 16, Strand Road, Kolkata (also known as 2, Fairlie Place, Kolkata) comprising of ground floor, Mezzanine floor, 2nd Floor, 3rd Floor, 4th Floor and roof having 97711.45 Sq. Ft. as described in Schedule B to the plaint;
(b) A decree for declaration that the plaintiff is entitled to peacefully use, enjoyment and occupation of the said tenanted portions without any interference and obstruction from the defendants and/or its servants, agents and assigns in any manner whatsoever;
(c) A decree for perpetual injunction restraining the defendants from taking any step or further steps from demolishing and/or from interfering with any part of the tenanted portion of the said Premises thereby interfering with the plaintiff''s right to peaceful use, enjoyment and occupation of the said premises;
(d) A decree for Mandatory Injunction, directing the defendants and/or its servants, agents and assigns to carry out the necessary repairs forthwith of the tenanted premises including the ground floor, 2nd floor, 3rd floor and 4th floor of the said premises so as to enable the plaintiff to peaceful use, enjoyment and occupation of its tenanted portion comprised in the said Premises.
(e) An order of injunction be passed directing the defendants and/or its agents, servants and assigns not to effect demolition of any portion of the said building including the mezzanine floor which remains unaffected by fire;
(f) A decree for total abatement of rent w.e.f. 7.11.1998 for not allowing the plaintiff to use the said tenanted portion described in the Schedule being Annexure-A to the plaint till its making habitable condition for normal and proper use of the plaintiff;
(g) A decree for a sum of Rs. 50,45,000/- as mentioned in paragraph 23 of the plaint on account of repayment of the balance of the loan amount along with interest thereon at the rate of 18% per annum;
(h) Decree for damage of Rs. 3.36 crores on account of loss and damages suffered by the plaintiff as stated in paragraph 24 of the plaint;
(i) Alternatively an enquiry into account and damages suffered by the plaintiff and a decree for such sum as may be found due and payable;
(j) Further interest as may be directed by the Court;
(k) Receiver;
(l) Injunction;
(m) Attachment
(n) Costs;
(o) Such further or other reliefs."
The reliefs in the two suits are substantially same save and except in the subsequent suit the plaintiff has prayed for recovery of possession. There are, however, cosmetic changes in the present plaint with regard to the quantification of damages and adjustment of future rent.
The application filed by the defendant No. 2 is in the nature of demurer.
The basis of the application appears to be that the present suit is barred under Order 2 Rule 2 of the Code of Civil Procedure and the other reliefs, ex facie barred by limitation, save and except, the reliefs claimed for recovery of possession.
Mr. Anindya Kr. Mitra, the learned Senior Counsel appearing in support of the application submits that the earlier suit was dismissed for non-service of the writ of summons. In the earlier suit, a prayer was made by the plaintiff under Order 2 Rule 2 of the Code of Civil Procedure. However, such prayer under Order 2 Rule 2 was not granted. In the earlier suit, it was open for the plaintiff to seek recovery of possession as it was alleged in the plaint that the plaintiff was dispossessed. The plaintiff did not pray for recovery of possession. Since no leave was granted, the subsequent suit based on the same cause of action is barred under Order 2 Rule 2 of the Code of Civil Procedure. The learned Senior Counsel has referred to the endorsements on the fiat of the plaint and submitted that it would appear from the endorsements therein that no express leave was granted in favour of the plaintiff under Order 2 Rule 2 of the Code of Civil Procedure. The learned Senior Counsel has relied upon the decisions in N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, AIR 2005 SC 2897 : (2005) 3 CTC 545 : (2005) 6 JT 1 : (2005) 5 SCC 548 : (2005) 1 SCR 411 Supp : (2005) 2 UJ 898 : (2005) AIRSCW 3346 : (2005) 4 Supreme 683 , State Bank of India Vs. Gracure Pharmaceuticals Ltd., AIR 2014 SC 731 : (2014) 118 CLT 59 : (2013) 6 CTC 789 : (2013) 15 JT 316 : (2014) 1 RCR(Civil) 889 : (2013) 14 SCALE 392 : (2014) 3 SCC 595 : (2014) 1 SCJ 158 , Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and Another, AIR 2008 SC 2187 : (2008) 6 JT 440 : (2008) 151 PLR 261 : (2008) 7 SCALE 460 : (2008) 11 SCC 753 : (2008) AIRSCW 3324 : (2008) 4 Supreme 384 , Kalabati Debi and Others Vs. Sm. Pratapi Devi, (2010) 2 CALLT 423 and submitted that it would appear from the said decisions that if a plaintiff is entitled to seek relief against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part of 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 based on the cardinal principle that the defendant should not be vexed twice for the same cause. It is argued that even a suit is dismissed under Order 9 Rule 5 of the Code of Civil Procedure without going to the merits of the case Order 2 Rule 2 of the Code of Civil Procedure applies. It is undisputed that no leave under Order 2 Rule 2 of the Code of Civil Procedure was obtained in the earlier suit, CS No. 280 of 2001. Neither in the subsequent plaint nor in the affidavit-in-opposition to the present application there is any averment made that the earlier suit was filed after obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure. Therefore, on the pleadings and averments made in the second plaint, there is no scope for any argument that leave under Order 2 Rule 2 of the Code of Civil Procedure was obtained in the previous suit. The learned Counsel has referred to Chapter VII Rule 4, Rule 7A and Rule 7B of the High Court Original Side Rules and submitted that under Chapter VII Rule 4 of High Court Rules, when plaint is admitted, the date of presentation of the plaint is to be noted together with note of special leave granted and the note to that effect shall be endorsed thereon and signed by the Judge or the officer admitting the plaint.
Special Leave means leave under Clause 12 of the Letters Patent or under Order 1 Rule 8 or Order 2 Rule 2 or Rule 4 of the Code. Application for such special leave is made without petition when the plaint is presented, provided that the grounds upon which such leave is sought for are set out with sufficient clearness in the body of the plaint.
Application for leave under Order 2 Rule 2 of Code of Civil Procedure shall be made to the Master. The order of the Master shall be subject to review by the Court at any stage of the proceeding.
On the plaint filed in CS No. 280 of 2001 there is no endorsement of the Master to the effect that leave under Order 2 Rule 2 of Code of Civil Procedure has been granted. The plaint was presented and admitted by the Master. In view of Chapter VII Rule 7A leave under Order 2 Rule 2 was to be obtained at the time of presentation of the Plaint. Absence of any endorsement of leave under Order 2 Rule 2 shows that such leave was neither sought nor obtained nor there is any endorsement on the flat of the plaint that leave under Order 2 Rule 2 of the Code of Civil Procedure was obtained from the learned Judge. In any event, whoever grants the leave, Master or the learned Judge, has to sign a note to the effect that any special leave (which inter alia includes leave under Order 2 Rule 2 of Code of Civil Procedure) has been granted.
On the plaint filed in CS No. 280 of 2001, there is no note that any special leave has been granted by the learned Judge and there is no signature of the learned Judge on the fiat of the plaint. Had leave under Order 2 Rule 2 of Code of Civil Procedure been obtained from the learned Interlocutory Judge, there would have been a signature on the fiat of the plaint. There is no endorsement or signature of the learned Master recording grant of such leave.
The date of presentation of the plaint in CS No. 280 of 2001 is 26th April, 2002. Below the date of presentation, signature of the Master appears. The plaint is admitted on that date. Any special leave (under Clause 12 of Letters Patent or Order 1 Rule 8 or Order 2 Rule 2 or Rule 4 of Code of Civil Procedure) has to be obtained at the time when the plaint is presented. Rule 4 also indicates that when a plaint is admitted, the date of presentation of the plaint together with note of any special leave is to be endorsed on the plaint and signed by the learned Judge or the officer admitting the plaint, as the case may be.
Therefore, no advantage can be claimed by the plaintiff that there is a writing "Leave" with the endorsement of the Assistant Registrar below it. The Assistant Registrar cannot grant leave under Order 2 Rule 2 of Code of Civil Procedure. Therefore, it is clear that the expression "Leave" mentioned above the signature of the Assistant Registrar cannot possibly mean "Leave under Order 2 Rule 2 of Code of Civil Procedure".
Signature of the Master only record admission of the Plaint without any special leave.
The signature of the Assistant Registrar is dated November 27, 2001 when the plaint had not at all been presented nor was it admitted nor was the suit instituted. The plaint was presented subsequently on 26th April, 2002 as recorded on the fiat of the plaint. The endorsement made above the signature of the Assistant Registrar is meaningless and should be ignored.
Leave under Order 2 Rule 2 of Code of Civil Procedure, must be granted expressly and signed by the person who grants it be it Master of the Learned Judge.
There is no scope for presuming that Leave under Order 2 Rule 2 had been obtained in the earlier suit.
In view of the above records, the plaintiff has rightly not pleaded that leave under Order 2 Rule 2 of Code of Civil Procedure had been obtained while filing the earlier suit, CS No. 280 of 2001. The plaintiff should not now be allowed to make oral submission that leave under Order 2 Rule 2 of Code of Civil Procedure had been obtained in the first suit, CS No. 280 of 2001.
It is argued that even assuming that leave under Order 2 Rule 2 of the Code of Civil Procedure was obtained in the first suit, such prayer for leave was confined to compensation or damages as would be evident from Paragraph 14 of the plaint filed in CS No. 280 of 2001. The said paragraph does not allege loss of tenancy right of the plaint nor does it claim restoration of tenancy. The said paragraph only pleads pecuniary loss and damages for which right to initiate appropriate proceedings had been reserved. Even in the said paragraph there is no averment that plaintiff prayed for leave under Order 2 Rule 2 of Code of Civil Procedure.
In fact, in the body of the plaint filed in CS No. 280 of 2001, there is no averment or claim for leave under Order 2 Rule 2 of Code of Civil Procedure. Only in the prayer portion, it is recorded that "plaintiff prays for leave under Order 2 Rule 2 of Code of Civil Procedure". Significantly, in the second suit, CS No. 336 of 2009, it is not even averred that such leave was obtained in the first suit, CS No. 280 of 2001 and prayer for leave under Order 2 Rule 2 has been omitted.
It is not the case of the plaintiff that the claim for possession could not be made in the first suit of 2001. On the other hand, on the conjoint reading of paragraphs 18 and 19 of the plaint, in the second suit it is clear that prior to institution of the first suit, the plaintiff had been dispossessed. In paragraph 18, it is averred, "plaintiff was wrongfully ousted and illegally removed...from the lawful possession and/or occupation". Succeeding paragraph 19 starts with "In the premises as aforesaid on 23rd May, 2001..." the first suit, CS No. 280 of 2001 was verified on 23rd May, 2001. Exact date of dispossession has been deliberately not mentioned in the second suit. In paragraph 24, it has been just averred, "Since about the year 2001 or thereafter the plaintiff has been thrown out..." Date of institution of the first suit, CS No. 280 of 2001 was 26th April, 2002 as will appear from the fiat of the plaint filed in CS No. 280 of 2001.
Under the Code of Civil Procedure a suit register has to be maintained recording particulars of every suit. The suit register should contain record of leave under Order 2 Rule 2 of Code of Civil Procedure, if obtained in the first suit, and also the date of institution of the said suit. A suit is instituted by presentation of plaint. The date of institution of the suit is important because of question of limitation.
In the absence of leave under Order 2 Rule 2 of Code of Civil Procedure obtained in the prior suit, CS No. 280 of 2001, the relief for possession as claimed in prayer (e) of the second suit, CS No. 336 of 2009 is barred by law, namely under Order 2 Rule 2 of Code of Civil Procedure.
The cause of action for declaratory reliefs [prayers (a) and (b)] and consequential reliefs of perpetual injunction [prayer (c)], mandatory injunction [prayer (d)], (prayer (f)] and [prayer (g)] had all arisen in 2001 in which year CS No. 280 of 2001 was filed. All the said reliefs, namely prayers (a), (b), (c), (d), (f) and (g) of the present plaint were made in the earlier suit of 2001. Therefore, the cause of action, for the reliefs, had arisen in 2001 and had become barred by laws of Limitation in 2009 when the second suit was filed. Accordingly, such reliefs are beyond the period of limitation in view of Article 58 of the Limitation Act.
It is submitted that Prayer (h) is a repetition of prayer (g) of CS No. 280 of 2001, save and except the amount has increased from Rs. 50,45,000/- to Rs. 57,76,800/-. Obviously the cause of action for this relief had arisen in 2001, and relief claimed in prayer (h) had become barred by limitation by 2004. Furthermore, this prayer (h) is based on averments made in paragraphs 13, 14 and 26 of the plaint. Loan was allegedly given on 31st March, 1997 and 11th September 1998. A new plea that the defendant No. 1 agreed that it would be adjusted against future loan is an addition in the second suit. No date of the alleged agreement is mentioned in the plaint. Therefore, this claim for adjustment is barred by limitation. Secondly, it is for the plaintiff to show that the claim made is not barred by limitation. Under Order 7 Rule 1(e) of Code of Civil Procedure, the plaintiff is to aver when the cause of action arose. Under Order 7 Rule 6 of Code of Civil Procedure, plaintiff is to aver the grounds upon which the plaintiff would be getting exemption from law of limitation. Thirdly, the agreement for adjustment, even though pleaded in the first suit, no relief of declaration for adjustment had been claimed. Without claiming adjustment, full amount of loan has been claimed as a decree [Prayer (g)]. The declaration of adjustment which is made in prayer (h) could have been made in the first suit and, therefore, this prayer (h) would also be barred by Order 2 Rule 2 of Code of Civil Procedure.
The prayer for damages or enquiry into damages has been made on the basis of averments in paragraph 15 of the plaint. This paragraph 15 of the plaint is identical with paragraph 14 of the plaint in the first suit. In paragraph 14 of the first plaint, right to file appropriate proceedings for calculating loss and damage to the plaintiff had been reserved without claiming any leave under Order 2 Rule 2 of Code of Civil Procedure. From paragraph 15 of the plaint, it is obvious that cause of action, if any, for this relief arose on 7th November, 1998 when the fire broke out. Damages to documents and papers caused by fire have been assessed at Rs. 10 crore and damage for medicines and equipment caused by fire has been assessed at Rs. 12 crore. Such fire broke out on 7th November 1998. Therefore, this claim is also otherwise barred by limitation being much beyond the period of three years.
Reliance is also placed on paragraph 28 of the plaint where it is admitted that cause of action arose on 7th November, 1998 when the fire broke out. It is however averred in paragraph 28 that cause of action for abatement of rent is a continuing cause of action and from 7th November 1998 accruing day to day and, therefore, is not barred by limitation. This is purely a question of law. The continuing cause of action is circumscribed by Section 22 of the Limitation Act. Section 22 of the Limitation Act is confined to continuing breach of contract or continuing tort. It is not a case of and there is no averment that there has been a breach of contract or that such breach of contract has been continuing on day to day or there has been a case of tort which has been continuing day to day. Hence, the plea of continuing cause of action is ex facie bad.
The claim for restoration and/or recovery of possession is alleged to be still subsisting and not barred by limitation, without giving any grounds for such claim.
Mr. Pradip Kumar Ghosh, the learned Senior Counsel appearing on behalf of the defendant submits that the endorsement on the fiat of the plaint would show that the leave was granted and in view thereof the argument made on behalf of the defendant that the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure is totally misconceived. It is submitted that although the Minute Book produced would show that no leave was granted but the endorsement on the fiat of the plaint cannot be disregarded. Moreover, the minute of the order does not mention the name of the advocate for the plaintiff nor it has been signed by the officer of the Court. In view thereof, the endorsement on the fiat of the plaint has to be given preference to any recording made in the Minute Book. It is submitted that the plaintiff is a tenant in respect of the suit properties for last fifty years and when the fire broke out at the request of the defendant No. 1, the plaintiff advanced substantial amount to the defendant No. 1 in order to enable the defendant No. 1 to meet the corporation dues and restore the building. The said amount was paid as a loan to be adjusted against the future rents. It is submitted that the law is well-settled that when there is a destruction of the property on restoration of the property, the tenant would be entitled to restoration of possession and so long as the possession is not restored and the same is denied by the landlord there is a continuing breach within the meaning of Section 22 of the Limitation Act and in view thereof the suit is maintainable. It is submitted that the contention that suit is not maintainable under Order 2 Rule 2 is a matter to be decided at the trial and not in this proceeding. It I submitted that in any event the suit for recovery of possession is not barred by law since it is filed within the period of 12 years from the dispossession.
In order to ascertain whether in the earlier suit leave under Order 2 Rule 2 was granted, I have called for the original plaint, the Minute Book as well as the suit register. The parties have inspected the documents.
On the fiat of the original plaint, the following endorsement appears:-
The said suit appeared as Item No. 11 on the day''s list. The original Minute Book records the order that was passed on 27th November, 2001 which reads:
The Court:- Since there is no averments made in the plaint, no leave is granted under Order 2, Rule 2. To be placed before the Department for scrutiny.
Department and all parties are to act on a singed copy of the minutes of this order on the usual undertaking."
The suit register produced before this Court would show that the plaint was presented and admitted on 26th April, 2002. The endorsement on the fiat of the plaint dated 27th November, 2001 would show that the leave was granted to present the plaint before the Master.
In order to appreciate the aforesaid endorsement it would be necessary to refer to Chapter VII Rule 4, Rule 7A and Rule 7B:-
"4. Endorsements on plaint. - Where a plaint is admitted, the words "Presented on the...........day of..........", together with a note of any special leave granted, and where the suit is marked as a commercial suit under Chapter XII or as a liquidated claim under rule 5, a note to that effect shall be endorsed thereon and signed by the Judge or Officer admitting the plaint; the words "Defendant to file written statement" being added where such statement is required.
7A. Special leave to sue or joint causes of action. - Every application for special leave to sue, under clause 12 of the Letters Patent, or under O. I r. 8, O.II r 2 or 4, of the Code, may be made at the time when the plaint is presented, without petition, provided that the grounds, upon which such application is made, are set out with sufficient clearness in the body of the plaint.
7B. The applications for leave under O.1 r.8, O.2 r.2, and O.2 r.4 of the Code shall be made to the Master. The Order of the Master shall be subject to review at any stage by the Court or a Judge either at the instance of a party or otherwise."
It would appear from the said rules that the applications for leave under Order 2 Rule 2 may be made at the time when the plaint is presented without petition, provided that the grounds upon which such application is made are set out in sufficient clearance in the body of the plaint. Rule 7A contemplates an application to be filed for special leave to sue under Order 2 Rule 2. The application can be made to the Master. The order of the Master shall be subject to review at any stage by the Court or a Judge either at the instance of a party or otherwise. It is not the case of the plaintiff that any application for leave under Order 2 Rule 2 was filed before the Master. The plaint contains a prayer for leave under Order 2 Rule 2. Ordinarily when such special leave is called for, the plaint is presented directly before the learned Judge having determination. The learned Judge may allow or refuse to give such leave. Thereafter, the plaint is presented before the Master to complete the other formalities when there is no requirement for such special leave, the plaint is directly printed before the Master.
The Minute Book is not required to be signed. The practice that was followed at the relevant time was that the orders pronounced in Court are all minuted in the Minute Book and a signed copy of the order is issued to the parties. This practice is followed till the High Court introduces amendment to the rules dispensing with keeping of Minute Books. There is no discrepancy between the endorsement appearing on the fiat and the minutes recorded in the Minute Book. If the learned Judge is satisfied that no leave is called for then certainly the matter is to be sent to the Master who shall on return of the plaint scrutinize the plaint and admit the plaint in terms of Chapter VII Rule 4 of the High Court Original Side Rules.
Since an argument was made that the endorsement on the fiat would mean granting of the special leave under Order 2 Rule 2 of the Code of Civil Procedure and the minutes recorded in the Minute Book should be disregarded, I have asked the Department to produce the plaint being C.S. No. 397 of 2001 (Mst. Mehfiza Khatoon v. Abdul Sovan) where similar order is recorded in the Minute Book. In the said plaint a similar prayer was made for leave under Order 2 Rule 2 CPC. The endorsement on the fiat reads:-
P.C. Ghose, J.
27/11/2001
Leave granted to be placed before the Ld. Master
Sd/-
Assistant Registrar
High Court, O.S. Calcutta"
and the corresponding minute entered in the Minute Book reads:-
The Court: Since there is no averments made in the plaint, no leave is granted under Order 2, Rule 2. To be placed before the Department for scrutiny.
Department and all parties are to act on a signed copy of the minutes of this order on the usual undertaking."
The said suit had appeared as Item No. 14 in the day''s list.
The record of the Court shall be presumed to be correct unless it is shown that such endorsement has been wrongly and/or erroneously made. Mr. Pradip Kr. Ghosh, the learned Senior Counsel would submit that the mistake of the Court shall not prejudice a litigant, in my view, the said submission cannot be accepted. The Minute Book would clearly show that in all similar matters where such leave was refused, same endorsement appears on the fiat of the plaint.
In Kalabati Debi (supra) it is stated:-
"14. Order II Rule 2 of the Code of Civil Procedure, 1908 provides as follows:-
"O.II R.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.
Relinquishment of part of claim. - (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Omission to sue for one of several reliefs. - (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any or 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."
The provision of Order II Rule 2 is founded on the principle that a person shall not be vexed twice for the same cause. The provision is directed both against the splitting upon of claims and the splitting up of remedies.
Order II Rule 2(1) requires inclusion of the whole claim arising out of one cause of action in one suit. For application of Order II Rule 2, the Court has to look into the cause of action for the claim in the earlier suit and the later suit and ascertain whether the claim made in the subsequent suit could have been made in the previous suit.
The Court would thus have to be satisfied that the first and the second suit arose out of the same cause of action, or else, the cause of action on which the subsequent claim was based, had already arisen when the plaintiff sought enforcement of the first claim.
Where a plaintiff relinquishes part of his claim under Order I Rule 2(1) in order to bring the suit within the jurisdiction of any Court, he does so at the peril of forgoing his right to sue in respect of that portion of his claim which he has relinquished. There can be no question of splitting of claims. The bar of Order II Rule 2(2) would be attracted."
Both the suits were between the same parties. Since the plaintiff omitted to claim the relief of possession which he could not have claimed when the first suit was filed, the plaintiff is not entitled to institute a fresh suit claiming relief of possession.
In view thereof, since no leave was obtained under Order 2 Rule 2 of the Code of Civil Procedure, the suit is barred and, accordingly, stands dismissed.
In view of the aforesaid finding, it is not necessary for me to consider as to whether the plaintiff is having a continuing cause of action within the meaning of Section 22 of the Limitation Act, 1993.
G.A. No. 1662 of 2012 is allowed. C.S. No. 366 of 2009 is dismissed.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.