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Madhya Pradesh High Court · body

2005 DIGILAW 938 (MP)

N. Ajit Kumar v. Hanuman Prasad

2005-08-31

A.M.NAIK

body2005
ORDER 1. Civil Revisions No. 572/2004 and 573/2004 are identical in nature and are being decided by this common order. 2. Facts giving rise to the revision applications are that the plaintiff revisionist instituted Civil Suits No. 58-B/01 and 57-B/01 claiming damages thereby for wrongful use and occupation of his property by the non-applicant. Civil Suit No. 58-B/01 (old Civil Suit No. 47-B/92) relates to the damages for the period from 2.9.1989 to 15.7.1992 amounting to Rs. 17.250/- and Civil Suit No. 57-B/01 (old Civil Suit No. 47.B/95) relates to the damages for the period from 21.2.1992 to 20.9.1995 amounting to Rs. 18,000/-. Prior to these suits the plaintiff had instituted a suit for damages against the defendant/non-applicant in the year 1985 for the wrongful use and occupation of the same premises. The damages claimed in the said suit relates to the period from 2.3.1982 to 2.7.1985. The earlier suit was dismissed on merits by the Court of Additional Judge, Sihora. Camp Katni. First Appeal preferred by the predecessor in title of the plaintiff is still pending before this Court as admitted by both the counsels. It is stated at bar that the present revisionist had also filed a suit bearing Civil Suit No. 29-B/89 for possession and damages for the period from 2.9.1986 to 1.9.1989. It is further stated by the learned counsel for non-applicant that Civil Suit No. 29-B/89 was dismissed on 24.1.2000 by the Court of Additional District Judge, Katni and FA No. 290/2000 preferred against the same is still pending before this Court. 3. Learned counsel for the non-applicant submits that the suits of the plaintiffs (58- B/01 and 57 - B/01) are not maintainable on account of the dismissal of the earlier suit being Civil Suit No. 29-B/89. Learned counsel for non-applicant further submits that the judgment of Civil Suit No. 29B/89 contained a finding that the present revisionist is not the sole owner of the subject property. In view of this finding, learned counsel for the non-applicant submits that the present suits i.e. Suit Nos. 58-B/01 and 57-B/01 are barred by virtue of Order 2, Rule 2, Civil Procedure Code, and also by virtue of constructive res judicata. Learned counsel further submits that the possession was obtained by one of the co-owners of the property. Therefore, the learned counsel submits that the plaintiff is liable to be non-suited. 4. 58-B/01 and 57-B/01 are barred by virtue of Order 2, Rule 2, Civil Procedure Code, and also by virtue of constructive res judicata. Learned counsel further submits that the possession was obtained by one of the co-owners of the property. Therefore, the learned counsel submits that the plaintiff is liable to be non-suited. 4. The aforesaid factual position is admitted to both the counsels. On perusal of the impugned order, it is clear that the Court below has held the suit to be non-maintainable by virtue of Order 2 Rule 2, Civil Procedure Code. The other reasonings assigned by the learned counsel for non-applicant are not liable to be entertained in view of the apex Court decision in the case of Nawal Kishore Tulara v. Dinesh Chand Gupta and others, reported as (2001) 6 SCC 110 . The apex Court, vide para 5 of its decision, has held that the question for consideration before the revisional Court is to be confined on the grounds raised by the plaintiff and the High Court should not act beyond the scope of the revision petition, Order 2 Rule 2, Civil Procedure Code, is reproduced below: "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. Relinquish 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 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 reliefs so omitted. 5. It is clear from the record that the plaintiff-revisionist did not relinquish his claim pertaining to future period. Cause of action to claiming damages is of recurring nature so long as an illegal and unauthorised user and occupation continues. 5. It is clear from the record that the plaintiff-revisionist did not relinquish his claim pertaining to future period. Cause of action to claiming damages is of recurring nature so long as an illegal and unauthorised user and occupation continues. In the earlier suit the claim for damages was confined to the period upto 1.9.1989 along with possession. In the present two suits the claim for damages relates to two different periods. Plaintiff was obviously not entitled to make any claim in respect of the period from 2.9.1989 in a suit instituted in the year 1985. In view of this, Order 2 Rule 2, Civil Procedure Code has no application and the learned trial Judge has committed an illegality in applying the same. The suit is held to be not barred by the provisions of Order 2 Rule 2, Civil Procedure Code. 6. In the result, both the revision applications succeed and the same are hereby allowed. The impugned orders are set aside and the learned trial Judge is directed to decide the suits in accordance with law. Record of the Court below be sent back. No order as to costs. Copy of this order be kept in both the civil revisions.