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2014 DIGILAW 857 (AP)

Kamal Ashok Futnani v. G. Nalini Rao

2014-07-11

L.NARASIMHA REDDY

body2014
Judgment : The respondent filed O.S No. 715 of 2008 in the Court of IX Additional Chief Judge, City Civil Court, Hyderabad against the petitioner for the relief of recovery of possession and mandatory injunction in respect of the suit schedule property. The petitioner opposed the suit by filing a written statement. During the pendency of the suit, the respondent filed I.A No. 3421 of 2011 under Order VI Rule 17 read with Section 151 of CPC and Rule 28 of the Civil Rules of Practice, with a prayer to permit her to amend the plaint, mainly to incorporate the prayer of declaration of title. In the affidavit filed in support of the I.A., the respondent stated that in the written statement filed by her, the petitioner claimed pleaded rival title to the property on the basis of a sale deed dated 31-10-1996 and since she (the respondent) purchased the property earlier point of time i.e., on 21-01-1992, the necessity has arisen for seeking the relief of declaration of title. The application was opposed by the petitioner by filing a counter. Objection was raised as to the limitation as well as maintainability. According to her, the relief of declaration of title in respect of sale deed of the year 1992 is barred by limitation. Another contention was that once the respondent failed to incorporate the prayer for declaration of title in the suit, it is not permissible for her to claim it at a later point of time, and that it is barred under Rule 2 of Order II CPC. The trial Court allowed the I.A., through the order dated 08-11-2013. Hence the revision. Ms. Manjari S. Ganu, learned counsel for the petitioner submits that the relief of declaration of title is sought almost as the very basis for the relief of recovery of possession and mandatory injunction and once it is referable to the same cause of action, it ought to have been claimed in the suit, at the inception itself. She contends that apart from being barred by limitation, the amendment is impermissible under Order II Rule 2 CPC. She has placed reliance upon the judgment of the Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) v. Ramesh Chander and others (2011 (2) ALD 101 (SC)) and of the Bombay High Court in Shakuntala J. Gujar v. Dilip R. Pawar (2001 AIHC 2353). She has placed reliance upon the judgment of the Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) v. Ramesh Chander and others (2011 (2) ALD 101 (SC)) and of the Bombay High Court in Shakuntala J. Gujar v. Dilip R. Pawar (2001 AIHC 2353). Sri K. Vivek Reddy, learned counsel appearing for Sri Pratik Reddy, learned counsel for the respondent, on the other hand, submits that the question of limitation can certainly be raised at the trial of the suit and it cannot be treated as a bar for seeking amendment at this stage. He further submits that the plea referable to Rule 2 of Order II CPC is totally impermissible. According to the learned counsel, it is only when a subsequent suit is filed in respect of a claim, which could have constituted the subject matter of an earlier suit that the prohibition contained under Order II gets attracted and the question of an amendment in the same suit being barred under Rule 2 of Order II CPC does not arise. The suit was filed initially for the relief of recovery of possession and mandatory injunction. The respondent based her claim to the suit property, on a sale deed dated 21-01-1992. In her written statement, the petitioner came forward with an independent title to the property on the strength of a sale deed of the year 1996. Faced with this situation, the respondent filed an application, with a prayer to permit her to amend the plaint, to incorporate the prayer for declaration of title, as well as the factual background in the body of the plaint. The opposition to this is on two grounds. The first is on limitation and the second is about the joinder of causes of action. The learned counsel for the petitioner, in all fairness submitted that the question of limitation, being a mixed one of fact and law, can be dealt with in the suit itself by getting an issue framed thereon. The emphasis is only on the plea referable to Rule 2 of Order II CPC. It is too well known that the objective underlying Rule 2 of Order II CPC is to ensure that if on the basis of a particular cause of action, the plaintiff is entitled to claim more reliefs than one, he shall be under obligation to claim of them, in the same suit. It is too well known that the objective underlying Rule 2 of Order II CPC is to ensure that if on the basis of a particular cause of action, the plaintiff is entitled to claim more reliefs than one, he shall be under obligation to claim of them, in the same suit. If for any reason he wants to defer the claim that arose out of the same cause of action, he must obtain the specific permission of the Court in this behalf. A subsequent suit in relation to one of the reliefs which arose out of the same cause of action that constituted the basis for reliefs in the earlier suit: is barred. Order II Rule 2 CPC reads: 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 of 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. On a close analysis of this, what becomes clear is that the occasion to press Rules 2 and 3 of Order II CPC into service would arise if only the plaintiff who filed one suit by pleading a cause of action, files another suit in respect of a relief which could have been claimed on the basis of the same cause of action, pleaded in the earlier suit. In a way, it can be said that the principle underlying therein is a facet of constructive res judicata. The words shall not afterwards sue occurring in Rule 2 become significant. Suing afterwards; can be only through a suit, filed afterwards. It is rather difficult to read the prohibition contained in this provision against an amendment in an existing suit. In a way, it can be said that the principle underlying therein is a facet of constructive res judicata. The words shall not afterwards sue occurring in Rule 2 become significant. Suing afterwards; can be only through a suit, filed afterwards. It is rather difficult to read the prohibition contained in this provision against an amendment in an existing suit. In the instant case, the bar referable to Order II Rule 2 is sought to be pressed into service, in the very first or only suit filed by the respondent herein. Reliance is placed upon the judgment of the Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadits case (1 supra). That was a case in which the relief of declaration of tile was claimed by way of amendment in an existing suit and that in turn resulted in change of the forum. The relief claimed through amendment was found to be barred under the provisions of the Urban Land Ceiling Act as well as by limitation. The relevant portion of the judgment of the Supreme Court reads: 33. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for Specific Performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which omitted to include when he filed his suit. This Court may consider its omission to include the relief of Specific Performance in the suit which is filed when it had cause of action to sue for Specific Performance as relinquishment of that part of its claim. The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code. 34. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case. 35. 34. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of this case. 35. Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. 36. Here in this case, the inclusion of the plea of Specific Performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different Court. On a close analysis of the facts of the case before the Honble Supreme Court, one finds that the reasons that weighed with their Lordships to reject the relief claimed by way of amendment are mostly referable to the reasons mentioned in paragraphs 35, 36 and 37 and what is observed in para 34 is an obiter. The words broad principles and public policy were employed by their Lordships to connote that. Their Lordships did not undertake any elaborate discussion with reference to Order II Rule 2 CPC obviously because the situation does not permit. A passing reference which does not have any direct impact on the result of the case cannot be treated as a ratio. The Bombay High Court in Shakuntala J. Gujars case (2 supra) made a similar passing observation in para 5 as under: In my view, even if we were to hold that the proposed amendment was not time-bared, even then the application deserves to be rejected, for the mandate contained in O.2, R.2, sub-rule (2) it was not open to the petitioner to set up a new claim on the basis of the same cause of action or pray for new reliefs as was sought to be done by way of this application. Order 2, R.2 clearly stipulates that the petitioner could have set up such a new claim provided he had obtained leave of the Court while instituting the suit itself. This, obviously, was not done in the present case, and, therefore, even on this count the petitioner cannot be permitted to carry out the proposed amendment which purports to seek new relief which the petitioner could have included while instituting the suit field by him in July, 1990. With due respect to the learned Judge of the Bombay High Court, who delivered the judgment, when the mandate under Order II is that all the reliefs referable to a cause of action, must be claimed in the same suit and the effort of the plaintiff is only in that direction, it becomes somewhat impermissible to treat such effort as having been barred under the provision. The C.R.P is, therefore, dismissed. However, it is left open to the petitioner to file an additional written statement dealing with the aspect introduced through the amendment, raising all the contentions available to her, within four weeks from today. The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.