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2004 DIGILAW 1637 (RAJ)

Bhanwar Lal Parihar v. Ganee Khanq

2004-11-08

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-This Appeal is directed against the Judgment and decree of the trial Court dated 210.1989 passed in Civil Original Suit No. 79/1986 by the learned Additional District Judge No. 1, Jodhpur. The trial Court decreed the suit of the plaintiff -respondent for specific performance of the contract dated 212.1985. 2. Brief facts of the case are that according to the plaintiff , the defendant wanted to sell his house and the deal was settled between the plaintiff and the defendant on 20.12.1985. The defendant, by oral agreement, agreed to sell the house in dispute for a consideration of Rs. 1,20,000/-to the plaintiff -respondent and in pursuance of said oral contract took Rs. 2,100/-from the plaintiff -respondent on the same day i.e., on 20.12.1985 itself . It was decided that a formal agreement will be executed later on. The defendant thereafter, told the plaintiff that he is in need of some money, therefore, the plaintiff may pay Rs. 57,900/-to make the advance amount as Rs. 60,000/-and for this consideration, the defendant will give possession of the part of the property to the plaintiff . The plaintiff agreed and paid Rs. 57,900/-to the defendant on 212.1985. A formal agreement for sale of the house was executed on 212.1985. The defendant also delivered the possession of the two rooms, kitchen, store and open land which was situated in western side of the house to the plaintiff . It was decided that after one month, the defendant will take the balance amount and will execute a sale-deed in favour of the plaintiff . 3. The plaintiff submitted that he was ready and willing to perform his part of the contract. He arranged the money by sale of his movable and immovable property. Despite willingness of the plaintiff , the defendant did not execute the sale-deed in favour of the plaintiff within the time fixed. At the request of the defendant, time was extended up to 31.07.1986 for execution of the sale-deed. The defendant did not execute the sale-deed during this extended period. Finding non-cooperative attitude of the defendant, the plaintiff served a registered notice upon the defendant on 18.06.1986, well before the date fixed for execution of sale-deed. The plaintiff in his registered notice, informed the defendant that money is ready with him and he already put the money in his bank account. Finding non-cooperative attitude of the defendant, the plaintiff served a registered notice upon the defendant on 18.06.1986, well before the date fixed for execution of sale-deed. The plaintiff in his registered notice, informed the defendant that money is ready with him and he already put the money in his bank account. Plaintiff also reminded that the time for execution of the sale-deed is coming near, therefore, draft sale-deed may be prepared so that the sale-deed may be executed. However, the said notice returned back to the plaintiff as the defendant did not receive the notice. 4. In the background of these facts, the plaintiff filed the suit for specific performance of the contract. It will be relevant to mention here that the plaintiff pleaded that in case, because of any reason, the decree for specific performance of the contract cannot be granted then decree for damages for Rs. 1,00,000/-may be granted in favour of the plaintiff . The suit was filed on 01.08.1986, which appears to be within period of less than eight months from the date of agreement and even filed on the next day only to the last date fixed by which the sale-deed should have been executed. 5. The defendant (now deceased) submitted written statement and stated that the plaintiff was known to the defendant since long time. The plaintiff paid Rs. 57,000/-as earnest money and agreed that he will pay Rs. 3,000/-in one or two days. The plaintiff told the defendant that the possession of two shops may be given to him and the plaintiff will pay the balance amount within one month and will get the sale-deed in his favour from the defendant. The defendant accepted plaintiff s offer. The defendant admitted that he signed the agreement. The defendant further pleaded that the plaintiff had no sufficient money to pay the balance amount and the period of agreement has expired on 22.01.1986. It is alleged that the plaintiff himself was not ready and willing to get the sale-deed executed in his favour and since the plaintiff despite offer of the defendant, did not comply with the terms of the agreement, therefore, the defendant offered plaintiff the money back, after deduction of Rs. 10,000/-, as provided in the agreement but the plaintiff did not accept the amount. 10,000/-, as provided in the agreement but the plaintiff did not accept the amount. The sum and substance of the contention of the defendant in his written statement was that though defendant agreed to sell the house in dispute to the plaintiff but because the plaintiff was not ready and willing to purchase the house, the defendant offered money back to the plaintiff after deduction of Rs. 10,000/-as provided in the agreement dated 212.1985, therefore, plaintiff cannot seek specific performance and he can be awarded money decree only. 6. The trial Court framed the issues. Since, the defendant admitted the agreement, the trial Court framed the issues; (1) whether the plaintiff is ready and willing to perform his part of the contract in furtherance to the agreement dated 212.1985 and (2) whether both the parties extended the period for execution of the sale-deed up to 30.07.1986. On the basis of the plea of the defendant, issue was framed to the effect that (3) whether on 212.1985, the plaintiff paid Rs. 57,000/-instead of Rs. 60,000/-. Since, the plaintiff sought relief of injunction, therefore, fourth issue was framed to the effect that (4) whether the plaintiff is entitled for relief of permanent injunction. 7. The plaintiff gave his statement on oath before the trial Court as PW. 1 and produced witnesses PW. 2 Mohanlal Bhati, who prepared the agreement Exhibit-1, PW. 3 Subhash Chandra Bhati, who is attesting witness for the agreement Exhibit-1 and PW. 4 Mool Singh, who is witness to the writing for extension of the period for execution of the sale-deed. The plaintiff also produced Exhibit-1 original agreement to sell, Exhibit-2 copy of notice sent by the plaintiff sent through his advocate Exhibit-3 original notice sent by the plaintiff to defendant and which was returned back to the plaintiff and Exhibit-4 the original postal receipt by which the notice was sent to the defendant. 8. The original defendant Bhanwarlal expired during the pendency of the suit, therefore, his legal representatives-appellants were taken on record in the trial Court. In the trial Court, only one of the legal representatives, DW. 1 Ummaid Parihar son of the defendant Bhanwarlal gave his statement and no other witness was produced. 9. The trial Court decided issue No. 1 in favour of the plaintiff and held that the plaintiff was ready and willing to perform his part of the contract. In the trial Court, only one of the legal representatives, DW. 1 Ummaid Parihar son of the defendant Bhanwarlal gave his statement and no other witness was produced. 9. The trial Court decided issue No. 1 in favour of the plaintiff and held that the plaintiff was ready and willing to perform his part of the contract. The trial Court, while deciding issue No. 2, held that the date for execution of the sale-deed was extended up to 30.07.1986 in view of the endorsement made on agreement to sell Exhibit-1. The trial Court further held that the defendant failed to prove that the plaintiff paid Rs. 57,000/-, only instead of Rs. 60,000/-to the defendant. The trial Court considered the plea of the defendant that in case the suit of the plaintiff can be decreed then that can be decreed only for the damages and not for the specific performance of the contract and rejected the same. The trial Court in the facts of the case, held that the clause for refund of money and payment of damages in case of breach by the vendor defendant cannot be considered as an agreement in lieu of specific performance of the contract. The trial Court further held that possession of the part of property was delivered to the plaintiff by the defendant in part performance of the contract and there is no agreement for return of the possession of the property to the defendant by the plaintiff in case of breach by the defendant, the defendant cannot be relieved from executing the sale-deed. After these findings, the trial Court decreed the suit of the plaintiff for specific performance of the contract vide Judgment and decree dated 210.1989. 10. Being aggrieved against the Judgment and the decree dated 210.1989 the appellants, legal representatives of the defendant, preferred this first appeal. 11. The learned Counsel for the appellants, without disputing the facts, relying upon the Judgment s of the Honble Apex Court delivered in the case of Dadarao & Anr. 10. Being aggrieved against the Judgment and the decree dated 210.1989 the appellants, legal representatives of the defendant, preferred this first appeal. 11. The learned Counsel for the appellants, without disputing the facts, relying upon the Judgment s of the Honble Apex Court delivered in the case of Dadarao & Anr. vs. Ramrao & Ors., 2000 WLC (SC) Civil 80 and Kanshi Ram vs. Om Prakash Jawal & Ors., JT 1996 (4) SC 733, submitted that where there is stipulation in the agreement that in case of breach by vendor by not executing the sale-deed in favour of the vendee then the vendor shall be liable to refund the consideration received and further he will be liable to pay compensation to the vendor then the Court can grant only money decree in favour of the vendee. In such situation Court cannot grant decree for specific performance of the contract for sale of the property. According to learned Counsel for the appellants, Honble the Apex Court in the case of Dadarao (Supra), held that there was no obligation of seller to complete the sale transaction in view of the condition in the agreement that if the seller did not want to execute the sale-deed, he will liable to refund the amount of Rs. 1,000/- plus Rs. 500/-only as damages. The Honble Apex Court in the case of Kanshi Ram (Supra), held that in view of the fact that the respondent himself had claimed alternative relief for damages, the Courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance of the contract. 12. The learned Counsel for the respondent vehemently submitted that the plaintiff and the defendant, both voluntarily entered into an agreement. The intention of the parties at the time of the execution of the agreement was; for the plaintiff to purchase the property and for the defendant, to sell the property. The terms contained in the agreement dated 212.1985 that in case the default is committed by the vendor then the plaintiff will be entitled for the refund of the paid amount (advance) and Rs. 10,000/-as damages, cannot be treated as a contract in lieu of the contract for sale of the property in dispute. The terms contained in the agreement dated 212.1985 that in case the default is committed by the vendor then the plaintiff will be entitled for the refund of the paid amount (advance) and Rs. 10,000/-as damages, cannot be treated as a contract in lieu of the contract for sale of the property in dispute. It is also submitted that the trial Court considered the plea of the appellant-defendant and rejected it and there is no illegality in the reasons given by the trial Court for rejection of the defendant-appellants plea. It is also submitted that the Judgment s relied upon by the learned Counsel for the appellants have no application to the facts of the case. It is also submitted that it will be absolutely unjust and inequitable in case decree for specific performance of the contract granted by the Court below is reversed in appeal in the year 2004 when plaintiff was given possession of the part of the property by the defendant himself nineteen years ago after receiving half of the market value of the entire property. It is further submitted that it will result into giving favour to the dishonest and defaulting person only and to the persons who can linger on litigation for years together and thereafter, says that because of rise in the price of immovable property, which is natural phenomenon, the decree for specific performance of the contract cannot be granted. It is submitted that decisions given by the Supreme Court were given in the facts of particular case and cannot be read as an authority lying down that in all case clause containing stipulation of refund of the advance or earnest money without or even with damages shall be an alternate contract to contract for sale of immovable property. If the argument advanced by the learned Counsel for the defendant-appellant is applied irrespective of facts of the case then in no case, decree for specific performance of the contract can be granted because it is settled practice in writing agreement for sale of immovable properties to incorporate a condition that the party in default will have to pay the damages. This condition is for securing specific performance only and not for giving advantage to the defaulters. Intention behind it is that no one should back out from his commitments. In such type of agreements commitment is for sale and to buy the property. This condition is for securing specific performance only and not for giving advantage to the defaulters. Intention behind it is that no one should back out from his commitments. In such type of agreements commitment is for sale and to buy the property. The choice to claim damages in lieu of performance of the contract or seek performance of the contract rests with the party who can claim damages in lieu of performance of the contract. The choice is not available to defaulting party to offer damages in lieu of performance of the contract. If inspite of proving a case for grant of relief for specific performance of the contract the same is denied by the Court merely on the ground that defaulting party is ready to pay the damages then this is nothing but giving a right to the defaulting party to impose his arbitrary discretion over the lawful claim of the other. 13. I considered the submissions of the learned Counsel for the parties. 14. The learned Counsel for the appellants rightly did not question the oral agreement dated 20.12.1985 followed by written agreement dated 212.1985 because it is an admitted transaction between the parties. The defendant himself , in his written statement, submitted that after 212. 1985, the contract has come to an end. It is implied admission of the defendant about oral agreement dated 20.12.1985 otherwise he would have said that agreement stands cancelled from 212.1985 by calculating one month from written agreement dated 23. 12. 1985. According to the defendant, he offered advance amount to the plaintiff after deducting Rs. 10,000/-which he can deduct as per condition of the agreement dated 23. 12. 1985. Therefore, execution of the agreement dated 23. 12. 1985 also stands admitted. The defendant did not dispute the consideration settled for the house in question. The learned Counsel for the appellants did not question the finding of the trial Court holding that plaintiff paid Rs. 60,000/-and not Rs. 57,000/-only to the defendant in pursuance of the contract in question and rightly did not question the finding of the trial Court in view of the fact that burden was upon the defendant to prove the issue and there is no evidence of the defendant in support of Issue No. 3 whereas, the plaintiff produced positive evidence to prove the fact that he paid Rs. 60,000/-to the defendant in pursuance of the agreement dated 23. 12. 1985. The learned Counsel for the appellants also did not challenge the finding on issue No. 2 which is relating to extension of time for execution of the sale-deed up to 30.07.1986, because the original defendant denied the extension of time for execution of the sale-deed but the agreement Exhibit-1 has been proved and endorsement over it also, has been proved by the plaintiff by producing trustworthy witnesses. 15. The entire controversy centers round on the plea of the defendant that, the plaintiff and defendant both knew it well that incase the defendant will not sell the house to the plaintiff in pursuance of the agreement dated 212.1985 inspite of willingness of the plaintiff , the defendant will be liable to refund the advance amount with damages as mentioned in the agreement and the plaintiff shall not have any right to insist for specific performance of the contract. In support of this plea learned Counsel for the appellant relied upon the Judgment s of the Apex Court (Dadarao & Anr. vs. Ramrao & Ors.), 2000 WLC Civil 80 (SC) and Kanshi Ram vs. Om Prakesh Jawal & Ors., 1996 (4) JT 733 (SC), referred above. 16. It will be relevant to mention here that the appellants who are the legal representative of the original defendant, in this first appeal submitted an application for amendment of the written statement so that the appellants may take new pleas, inter alia, that the plaintiff and defendant executed the agreement with clear intention that in case the sale-deed is not executed by the defendant, the plaintiff will be entitled for the refund of the advance paid by the plaintiff to the defendant and for Rs. 10,000/-as damages and he will not be entitled to insist for sale of the house in his favour. The appellants also by the application for amendment of the written statement, wanted to raise new factual aspects which are, about the title of the house in dispute so that the appellants may take a plea that appellants ancestor, original defendant had no right to execute the agreement as he had no right to sell the house because the house was ancestral one. 17. 17. So far as plea on the basis of alternate contract of refund of the advance amount and payment of damages in lieu of the specific performance is concerned, it is the issue already raised and is under consideration before this Court; therefore, amendment has been sought unnecessarily. By second plea, the legal representatives of original defendant want to question the title of the defendant in a suit for specific performance of the contract. Question of title to the property is irrelevant in such suits, therefore, amendment cannot be allowed. Otherwise also, there appears to be no reason to permit the appellants to amend the written statement after about 19 years, in a suit which was filed in the year 1985 and to permit them to take pleas based on facts like, what was the intention of the plaintiff and the appellants ancestor-defendant at the time of the execution of the agreement for which the appellants have no personal knowledge and whether the property in dispute is ancestral property or not and whether the defendant alone became the absolute owner of the property or not. Therefore, the application of the appellants filed under Order 6 Rule 17 to amend the written statement is dismissed. 18. The thrust of the argument of the learned Counsel for the appellants, as mentioned above, is on the basis of the Judgment s delivered by the Honble Apex in the cases of Dadarao and Kanshi Ram (Supra). Before considering above Judgment , it will be worthwhile to consider a few earlier Judgment s of the Honble Apex Court and the Judgment of the Division Bench of this Court. Before that, it will be worthwhile to look into the relevant provisions of law covering the subject. 19. Section 10 of the Specific Relief Act, 1963 (for short the Act of 1963) provides that in what cases the Court can grant decree for specific performance of the contract. Section 10 itself provides that it is a discretionary relief . Sub-Clause (a) and (b) of Section 10 provides that the contract may be specifically enforced, (a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done and (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief . The Explanation appended to Section 10, provides that unless and until the contrary is proved, the Court shall presume (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. 20. Section 14 of the Act of 1963 enumerates the situation in which the contract cannot be specifically enforced. The person who may obtain specific performance is given in Section 15 of the Act of 1963. There are personal bar against the relief for specific performance of the contract against the person who falls in the category provided in Section 16 of the Act of 1963. Section 20 of the Act of 1963 says that jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. At the same time, Section 20 itself says that discretion of the Court should not be arbitrary but is guided by sound and reasonable judicial principles. Further, Sub-section (2) of Section 20 of the Act of 1963 provides a few eventuality when the Court may properly exercise discretion not to decree specific performance. Explanation 1 of Section 20 is also relevant for the purpose of this controversy. Explanation 1 of the Section 20 provides that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b) of Sub-section (2) of Section 20 of the Act of 1963. Sub-section (4) of Section 20, is one of the most relevant provision which says; “the Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.” 21. Further, a conjoint effect of Sections 21, 22, 23 and 24 of the Act of 1963 makes clear that if plaintiff wants to claim compensation for breach of the contract, either in addition to or in substitution of specific performance, he can do so in the suit for specific performance of the contract itself only. Further, a conjoint effect of Sections 21, 22, 23 and 24 of the Act of 1963 makes clear that if plaintiff wants to claim compensation for breach of the contract, either in addition to or in substitution of specific performance, he can do so in the suit for specific performance of the contract itself only. And if initially plaintiff did not claim compensation either, in addition to or in substitution of specific performance, he may (as per proviso to Section 21) amend the plaint and if amendment is sought by the plaintiff for this purpose, the Court shall, at any stage of the proceedings, allow him to do so. As per Section 24, if plaintiff fails in claiming compensation in the suit for specific performance of the contract, he shall not be entitled to file suit subsequently. 22. In view of the above provisions, it is clear that the law recognises contract for sale of immovable property and made such contracts specifically enforceable through the Court of law. The foundation of the contract is the intention of the parties. In the cases of contract for sale of property, unless otherwise is proved it is to be presumed that the parties had intention to complete the sale transaction. The Courts lean towards giving effect to the intention of the parties. The ordinary rule in the matter of specific performance of the contract is to grant decree for specific performance of the contract though it is discretionary relief . The law made the relief discretionary by specifically providing so under Sections 10 and 20 of the Act of 1963 which says that the Court is not bound to grant decree for specific performance of the contract merely because it is lawful to do so. Normal rule of law is that decree/relief should be granted in favour of the plaintiff upon proving his entitlement for the relief in law. In such case, it is not the discretion of the Court which makes the plaintiff entitled for the relief but it is his legal right alone which entitles him to demand decree from the Court. After proving legal right for the relief , the plaintiff is not required to show more reason for granting decree/relief in his favour. In such case, it is not the discretion of the Court which makes the plaintiff entitled for the relief but it is his legal right alone which entitles him to demand decree from the Court. After proving legal right for the relief , the plaintiff is not required to show more reason for granting decree/relief in his favour. Suit for specific performance is exception to it because Sub-section (1) of Section 20 empowers the Court with discretionary power in the matter of granting reliefs in the suit for specific performance. A meaningful reading of Sub-section (1) of Section 20 itself makes it clear that though it is provided that "the Court is not bound to grant such relief (of specific performance) merely because it is lawful to do so" but at the same time it is also made clear that "the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles.....". Except because of first part of Sub-section (1) of Section 20 and a few provisions made in specific relief Act, 1963, the Court has no option but to grant the relief for specific performance. Therefore, when Court is invited to exercise its discretionary powers under second part of Sub-section (1) of Section 20. against grant of relief of specific performance then the Court, upon finding sound and reasonable reasons guided by judicial principles, may refuse the relief of specific performance. Such "sound and reasonable reasons guided by judicial principles" are required to be furnished by the defendant to destroy the plaintiff s lawful claim. Because, after proving legal right for the relief , the plaintiff is not required to show reason for granting decree/relief in his favour and since in such cases, relief is discretionary, hence an opportunity is given to the defendant, therefore, he may, after laying down factual foundation in pleading and after proving facts may submit reasons for exercise of Courts discretion against the passing of the decree for specific performance. 23. Any reason, contrary to specific provision of law cannot be a reasonable or sound reason. The defence of the defendant in a suit for specific performance of contract that he has option in the contract itself , either to perform the act or to pay damages is impermissible plea in view of Sub-section (4) of Section 20 of the Act of 1963. The defence of the defendant in a suit for specific performance of contract that he has option in the contract itself , either to perform the act or to pay damages is impermissible plea in view of Sub-section (4) of Section 20 of the Act of 1963. Condition to refund the earnest money, advance payment and even damages incorporated in the agreement gives only contractual right to offer refunds and damages but it has been made unenforceable at the instance of party opposing enforcement of the contract by law, by Sub-section (4) of Section 20 of the Act of 1963 which clearly says: - "Section 20(4): -The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party." 24. If the plaintiff is required to claim alternate relief in the same suit so that in case he cannot get main relief because of any reason including bar of law against such relief or the Court in its discretion, can refuse main relief and not inclined to grant relief for specific performance then he need not to file another suit for refund of the amount paid to the defendant and for recovery of compensation and the Court may grant alternate relief to the plaintiff in the suit for specific performance of the contract itself . Because of plaintiff s claiming relief in alternate, no right is created in favour of the defendant. The plaintiff s prayer for relief in alternate itself is no ground even for the Court to either deny the main relief to the plaintiff nor it gives arbitrary discretionary power to Court to deny the main relief to the plaintiff by allowing alternate relief to the plaintiff . 25. The above proposition will be in consonance with various provisions which are made in the Specific Relief Act itself in addition to various provisions which are already in the Civil Procedure Code. We have seen provisions in the Specific Relief Act, now we may look at some provisions of Civil Procedure Code which also mandates that plaintiff should include his whole of the claim as well as should claim all reliefs in his suit otherwise he will loose his left out claim. We have seen provisions in the Specific Relief Act, now we may look at some provisions of Civil Procedure Code which also mandates that plaintiff should include his whole of the claim as well as should claim all reliefs in his suit otherwise he will loose his left out claim. As per Sub-rule (1) of Rule 2 read with Sub-rules 2 and 3 of the Order 2, CPC, the plaintiff is required to not only "include the whole of the claim ...... in respect of the cause of action" but also required to sue for all reliefs for which he is entitled. If the plaintiff is entitled for more reliefs on the basis of the same cause of action but fails to sue for one or some of the reliefs in the same suit, except with the leave of the Court, his subsequent suit will become barred under Sub-rules 2 and 3 of the Rule 2 of Order 2, CPC. It will be worthwhile to refer a decision of this Court (by me) delivered in the case of Hari Ram vs. Lichmaniya, AIR 2003 Rajasthan 319, wherein the effect of Order 2 in detail, though in different context, has been considered and after taking note of Sections 10, 11, and 12 alongwith Rules 1 and 2 of Order 2 as well as after considering the effect of Order 9 Rule 9 and Order 23 Rule 1(3) and (4), this Court observed as under: - "Fundamental aims and object is to avoid multiple suits may it be founded on same cause of action or may be relating to same subject-matter. Section 12 bars the plaintiff from instituting "further suit" based on and in respect of such cause of action, which was cause of action in earlier suit. 26. This Court further held that: -"The sum and substance of the above discussion is that a party may file a suit in the Court of law on accrual of cause of action and it is one suit only. Thereafter, his suit is required to be dealt with by the Court in accordance with the procedure providing for dealing with the suit and the plaintiff cannot have any liberty to deal with his suit as per his own whims. The Civil Procedure Code prescribes complete procedure about how the suit can be dealt with by the parties and the Courts. The Civil Procedure Code prescribes complete procedure about how the suit can be dealt with by the parties and the Courts. Rule 1 of Order 2 cast a duty upon the plaintiff to frame the suit in such a manner so that final decision may be given by the Court upon the subjects in dispute (not only upon cause of action or relief claimed in the suit) and it should prevent further litigation. In Rule 2 of Order 2 "Subject in Dispute" has been used which is wider than the words "cause of action" or "reliefs." Object of Rule 1 Order 2 is to prevent further litigation between the parties to the suit. The Sub-rules (2) and (3) of the Rule 2 of Order 2, CPC do not permit plaintiff to left out any of the relief , which he could have claimed on accrual of the cause of action and if plaintiff omits to sue in respect of any portion of his claim, he is precluded from bringing second suit." 27. In view of the above, when the law requires and equity demands and the public