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2012 DIGILAW 22 (UTT)

INDU BORA v. CIVIL JUDGE (S. D. ), NAINITAL

2012-01-05

TARUN AGARWALA

body2012
JUDGMENT Heard Sri Arvind Vashisth, the learned counsel for the petitioner, Sri Sudhir Kumar, the learned Brief Holder for the State/respondent no. 1 and Sri Pradeep Hairiya, the learned counsel for respondent no. 2. No one appears on behalf of the other respondents even though they have been served. 2. The petitioner filed a suit for declaration praying that the lease deed dated 6th June, 1985 and 11th August, 1986 are void and inoperative. A relief of restoration of vacant possession was also sought. With these reliefs, the plaint was presented. The Munsarim submitted a report with regard to the court fee. Since a separate court fee on possession was demanded, the counsel for the plaintiff moved an application dated 14th July, 1997 seeking permission to delete the relief of possession. This application was allowed and the plaintiff was permitted to delete the relief of possession. The trial court held that since the suit had not as yet been registered) permission to delete the relief can be granted. During the pendency of the suit, the plaintiff realized that the suit for declaration alone was not maintainable in view of Section 34 of the Specific Relief Act and consequently, filed an application dated 29.6.2001 under Order 6 Rule 17 of the Code of Civil Procedure seeking permission to add paragraph 14-B after paragraph 14-A of the plaint and seeking addition in the relief clause. By the amendment application, additional paragraph was sought for the purpose of indicating the valuation for the relief of possession. In the relief clause, the amendment sought was for a decree of possession. This application was resisted by the defendants objecting to the maintainability of the application. The defendants urged that the same relief was earlier deleted by the plaintiff which was allowed and no leave was sought and consequently, the application seeking amendment of the same relief was barred under Order 2 Rule 2 of the Code of Civil Procedure. 3. The trial court, after considering the matter, rejected the application of the plaintiff holding that the amendment seeking addition of the relief of possession was barred under Order 2 Rule 2 C.P.C. The plaintiff, being aggrieved by the said order, has filed the present writ petition under Article 227 of the Constitution of India. 4. 3. The trial court, after considering the matter, rejected the application of the plaintiff holding that the amendment seeking addition of the relief of possession was barred under Order 2 Rule 2 C.P.C. The plaintiff, being aggrieved by the said order, has filed the present writ petition under Article 227 of the Constitution of India. 4. The learned counsel for the petitioner submitted that at the time when the relief was omitted, the suit had not as yet been registered and therefore, the principles applicable under Order 2 Rule 2 or under Order 23 Rule 1 and 3 C.P.C. are not applicable. On the other hand, the learned counsel for the respondent no. 2 submitted that when a part of the claim was relinquished by the plaintiff without seeking the leave of the court and since the plaintiff had intentionally relinquished his claim, the same cannot be added through an amendment under Order 6 Rule 17 C.P.C. and that the same was clearly barred under Order 2 Rule 2 C.P.C. 5. In the light of the rival stand taken by the parties and before proceeding further in the matter, it would be appropriate to consider the provision of Order 2 Rule 2 C.P.C., which, for facility, is extracted hereunder: “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. (2) Relinquishment of part of claim.- 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. (3) Omission to sue for one or several reliefs.- 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.” Explanation.-For the purposes 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.” 6. The principle evolved under Order 2 Rule 2 is based on the principle that no person shall be vexed twice for the same cause of action. This rule is aimed against multiplicity of suits in respect of the same cause of action as is clear from the language of Order 2 Rule 1 C.P.C., namely, “to prevent further litigation” and for that purpose, the rule provides that every suit shall include the whole of the claim that the plaintiff is entitled to make in respect of the same cause of action and that he is not entitled to split his cause of action into parts and bring separate suits in respect of each part. Sub-rule (1) of Order 2 deals with the frame of the suit and enables the plaintiff to abandon or relinquish a part of his claim before filing his plaint. 7. The sine qua non for attracting the mischief contemplated in Order 2 Rule 2 is the cause of action. The correct test is whether the claim in the subsequent suit is, in fact, founded on a cause of action distinct from that which was the foundation of the earlier suit. If the cause of action in the subsequent suit is different from that in the first suit, the subsequent suit is not barred. Order 2 Rule 2 will not apply where the cause of action is distinct. 8. In the light of the aforesaid, it is clear that the bar created under Order 2 Rule 2 will only apply where the plaintiff files a subsequent suit for the same cause of action after obtaining a decree in an earlier suit. In the present case, admittedly, the plaintiff had not filed any earlier suit against the defendants nor had obtained any decree. Consequently, Order 2 Rule 2 of the Code of Civil Procedure will not apply. The trial court committed an error in rejecting the application on the ground that the said application was barred under Order 2 Rule 2 C.P.C. However, the question still remains that if the application was not barred under Order 2 Rule 2, was the application barred under Order 23 Rule 1 C.P.C. For facility, the provision of Order 23 Rule 1 C.P.C. is extracted hereunder: “1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 and 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” 9. Sub-rule (1) of Order 23 merely affirms the right of a plaintiff to withdraw a suit in whole or in part against all or any of the defendants. Sub-rule (1) contemplates a withdrawal of the suit. Sub-rule (2) contemplates a withdrawal from the suit. Sub-rule (1) of Order 23 merely affirms the right of a plaintiff to withdraw a suit in whole or in part against all or any of the defendants. Sub-rule (1) contemplates a withdrawal of the suit. Sub-rule (2) contemplates a withdrawal from the suit. If a party desires to withdraw from the suit with liberty to institute a fresh suit, he must apply to the court under sub-rule (2) to permit him to withdraw. If he does not desire to have the liberty, he can withdraw the suit of his own motion under sub-rule (1) and no order of the court is necessary. Sub-rule (2) allows the court in the cases specified therein to grant the plaintiff permission to withdraw from a suit with liberty to institute a fresh suit, in which case, the bar against the fresh suit, which is otherwise imposed on a plaintiff who abandons his first suit, is removed. Sub-rule (2) further provides that where the court is satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter, the court, may, on such terms as it thinks fit, grant permission to the plaintiff to withdraw from such suit with liberty to institute a fresh suit in respect of the same subject matter of the suit. 10. In the light of the aforesaid, let us refer to Section 34 of the Specific Relief Act, which is extracted hereunder: “34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief that a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 11. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 11. A perusal of the aforesaid would indicate that a suit for declaration is not maintainable unless a relief of possession is sought. Consequently, when the plaintiff chose to omit the relief of possession, the plaint was defective and the suit could not be decreed. Such defect, in the opinion of the Court, amounts to a formal defect contemplated under Order 23 Rule 2, forwhich, permission can be sought to withdraw the suit with liberty to file a fresh suit. 12. In the present case, when permission to omit a relief was sought at the time of the presentation of the suit, the question was whether such an application was filed under Order 2 Rule 2 or under Order 23 Rule 1. In the opinion of the Court, Order 2 Rule 2 and Order 23 Rule 1 and 3 operate in different areas. Order 2 contemplates where a plaintiff omits a relief in his suit, whereas Order 23 contemplates where a plaintiff claims a relief in his suit, but chooses not to press that relief any further and wants to relinquish or withdraw totally or in part against any or some of the defendants. 13. In the light of the aforesaid, when the plaintiff filed an application at the initial stage when the plaint was presented, he chose to delete a prayer. Such deletion and/or omission of the relief in the suit does not bar the plaintiff from adding the same relief subsequently in the same suit at a later stage by moving an application under Order 6 Rule 17 C.P.C. inasmuch as the plaintiff had omitted the relief in the suit and can always add a relief. Such addition of the relief was not barred under Order 2 Rule 2 C.P.C., which the Court had already held that it is not applicable since it is the same suit nor it is barred under Order 23. The bar under Order 23 is created when a relief claimed is withdrawn and subsequent relief to that effect becomes barred in a subsequent suit or in the same suit if the leave is not taken under sub-rule (3) of Order 23. 14. The bar under Order 23 is created when a relief claimed is withdrawn and subsequent relief to that effect becomes barred in a subsequent suit or in the same suit if the leave is not taken under sub-rule (3) of Order 23. 14. To illustrate the matter, in a case of mortgage where a suit is filed and is decreed and such decree is put in execution, Order 34 Rule 14 permits the decree holder to institute another suit for sale in enforcement of the mortgage and such suit is not barred under Order 2 Rule 2 C.P.C. Consequently, leave of the court is not essential in such a case inasmuch as exception of Order 2 Rule 2 is carved out under Order 34 Rule 14 C.P.C. 15. In the light of the aforesaid analogy, the omission of the relief of possession does not bar the plaintiff under Order 23 Rule 3 C.P.C. inasmuch as such omission can always be added during the pendency of the suit by moving an application under Order 6 Rule 17 C.P.C. 16. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed, The amendment application is also allowed subject to payment of cost of Rs.3,000/- (rupees three thousand), which shall be deposited by the plaintiff within four weeks from today before the trial court. Such amount can be withdrawn by the respondent no. 2 Sri Pooran Chandra Bhatt since he is the only contesting opposite party before this Court.