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2001 DIGILAW 162 (JK)

Sham Kumar v. Kuldip Raj

2001-07-31

A.M.MIR

body2001
1. This revision petition is directed against an order passed by Second Addl. District Judge, Jammu on 15-03-1995 whereby it has been held that provisions of Order 2 Rule 2 were not applicable to the facts of the case. 2. The facts in brief are that petitioner first filed a suit for declaration that sale deed executed by his mother Mst. Lajo Devi in respect of joint property on 22-05-1987 was null and void and inoperative against him. Subsequently petitioner withdrew the suit and filed a suit for possession on the ground of right of prior purchase. The defendant resisted the suit on the ground that in the earlier suit the relief of possession on the strength of right of prior purchase was not asked for, therefore, the suit was barred by Order 2 Rule 2 of the Civil Procedure. The trial court dismissed the plea, hence this revision. 3. Mr. D.S. Thakur, learned counsel appearing for the petitioner- defendant has laid stress on Clause 3 of Rule 2 of Order 2. He has vehemently argued that the cause of action accrued to the plaintiff right on the date when the sale deed was executed. He challenged the sale deed by filing a suit for declaration, he omitted to seek a relief of possession, therefore, by dint of concept of constructive resjudicata, carved out by Rule 2 of Order 2 the plaintiff was debarred from filing the present suit. 4. Mr. P. Kohli, appearing for the respondent, on the other hand has resisted this argument and submitted that Rule 3 of Order 2 will have to be read in the light of Rule 1 and 2 of the order. An independent reading of this provision will be erroneous. Mr. Kohli has also drawn the attention of the Court to the fact that it was only after withdrawal of the earlier suit that sub sequent relief of possession could be asked for Thus because of inconsistency in the two reliefs, bar created by Order 2 Rule 2 and 3 will not be attracted. 5. I have considered the matter. A legal question which arises in the case is as to whether or not bar created under Rules 2 and 3 of Order 2 is applicable to reliefs claimed which are inconsistent and could be sought in alternative? Thus it becomes imperative for this Court to interpret Rule 3. 5. I have considered the matter. A legal question which arises in the case is as to whether or not bar created under Rules 2 and 3 of Order 2 is applicable to reliefs claimed which are inconsistent and could be sought in alternative? Thus it becomes imperative for this Court to interpret Rule 3. Rule 3 of Order 2 reads as under:- " 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 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." 6. The expression "all such reliefs" means those of the reliefs only which arise out of the stand taken in the plaint and are not inconsistent with them. A suitor is not under law obliged to ask for an alternative relief also. An alternative relief is one which is invoked by way of alternative. It is in lieu of the original relief and not in consequence thereto. Therefore this expression must exclude such of the reliefs which can be asked for an alternate reliefs, and which are inconsistent with the main relief sought. 7. This interpretation is reinformed by a what is laid down in Rules (1) and (2) of Order 2 of Code of Civil Procedure. Rule 3 on the principle of ejusdum generis can not be read in isolation, but only in the light of its preceding context. 8. As already observed, in the present case the earlier suit challenged the validity of the sale deed. The plaintiff in that suit could by no stretch of imagination have prayed for a relief of possession on the basis of prior purchase, because while seeking that relief he had to admit the finality or legality of the sale deed. He could not also be expected to ask for a relief in alternative. In fact he later decided to change his stand. He withdrew the earlier suit and then filed the present suit. As the relief of possession on basis of right of prior purchase is inconsitent with the relief of declaration of the sale deed to be null and void, therefore Rules 2 and 3 of Order 2 will not apply. In fact he later decided to change his stand. He withdrew the earlier suit and then filed the present suit. As the relief of possession on basis of right of prior purchase is inconsitent with the relief of declaration of the sale deed to be null and void, therefore Rules 2 and 3 of Order 2 will not apply. In view of this position of law I find no error of law in the order impugned in the revision petition, though the learned District Judge has given other reasons to support his order. I accordingly uphold the order and dismiss the revision. No order as to costs.