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2009 DIGILAW 92 (MAD)

M. Shanmugam & Another v. N. Radhamani

2009-01-09

G.RAJASURIA

body2009
Judgment :- Anim adverting upon the order dated 111. 2007 passed in I.A.No.845 of 2007 in O.S.No.605 of 2007 by the Principal District Munsif, Salem, this civil revision petition is filed. 2. A summation and summarization of the case of the petitioners, as stood exposited from the records could be portrayed thus:- The respondent/plaintiff filed the suit O.S.No.134 of 2007 seeking injunction as against the Electricity Board not to give electricity connection to the revision petitioners/defendants to run the mill pending disposal of the suit for partition, which is pending in O.S.No.605/2007. The petitioners/defendants filed an application I.A.No.845 of 2007 invoking order 2 Rule 2 C.P.C. on the ground that a separate suit would not lie. Whereupon the lower Court dismissed the said application, after hearing both sides. Being aggrieved by and dissatisfied with the said order this civil revision petition is focussed by the defendants. 3. The learned counsel for the petitioners/defendants would develop his argument placing reliance on the grounds of revision to the effect that the earlier suit O.S.No.134 of 2007 is for partition between the same parties; while so, the subsequent suit O.S.No.605 of 2007 is also between the same parties, of course by adding the Electricity Board, for injunction; such a suit is bared by Order 2 Rule 2 of C.P.C. and there need not be any final adjudication of the earlier suit for attracting the embargo as embodied in Order 2 Rule 2 C.P.C. once a party fails to incorporate necessary prayer in the earlier suit, then he is precluded from instituting a separate suit on the left out prayer and that too, when no leave was sought and obtained from the Court earlier. 4. Whereas, the learned counsel for the respondent/plaintiff would develop his argument to the effect that the present suit O.S.No.605 of 2007 is purely for the purpose of obtaining injunction as against the Electricity Board, pending disposal of the partition suit O.S.No.134 of 2007 and it is not a full-fledged separate relief, which could have been incorporated in the earlier suit O.S.No.134 of 2007. 5. In this factual matrix, I am of the considered opinion that in the suit O.S.No.134 of 2007, which is pending, the plaintiff, namely, the respondent herein could have very well filed an I.A. and in that I.A. she could have added the Electricity Board also as one of the respondents and sought for relief. 5. In this factual matrix, I am of the considered opinion that in the suit O.S.No.134 of 2007, which is pending, the plaintiff, namely, the respondent herein could have very well filed an I.A. and in that I.A. she could have added the Electricity Board also as one of the respondents and sought for relief. It is also a trite proposition of law that in the I.A. a new party can be added for limited purpose, even though the said party is not a party in the original suit. However, the respondent/plaintiff had resorted to the luxury of filing a separate suit. 6. Whereas, the learned counsel for the petitioners/defendants would develop his argument that there should not be any multiplicity of proceedings and instead of filing the I.A., the respondent/plaintiff was not justified in filing a fresh suit. 7. Since the prayer in the O.S.No.605 of 2007 itself is interim in nature, I am of the considered opinion that Order 2 Rule 2 cannot be pressed into service as against the suit and it is for the lower Court to try O.S.No.605 of 2007 along with O.S.No.134 of 2007, as in my considered opinion, O.S.No.605 of 2007 is nothing but virtually an I.A. in O.S.No.134 of 2007 and accordingly, the matter shall be processed. 8. The learned counsel for the petitioners/defendants would submit that in such an event, afresh liberty may be given to the petitioners/defendants to raise fresh plea relating to the non-maintainability of O.S.No.605 of 2007. It is for him to raise a new plea on the ground of multiplicity of proceedings and accordingly pray for dismissal of the said suit and such a plea be decided on merits along with the suits. 9. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.