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2019 DIGILAW 22 (AP)

Dandapti Premanandam v. Aluri Mohana Rao

2019-02-15

M.SATYANARAYANA MURTHY

body2019
JUDGMENT : 1. This civil revision petition is filed, under Article 227 of the Constitution of India, order, dated 12.03.2013, passed by the Principal Junior Civil Judge, Narsapur, in I.A. No.1536 of 2012 in O.S. No.225 of 2010. The petitioner filed the said application under Order VI Rule 17 of CPC to amend the plaint by incorporating the relief of declaration that the petitioner is the owner of an extent of 2 cents of land situated on the southern side of the plaint schedule property encroached by the respondent and to direct the respondent to deliver vacant possession of 2 cents of land. The trial Court, upon hearing the argument of both the counsel, dismissed the application vide order, dated 12.03.2013, on the ground that the proposed relief is hit by Order IT Rule 2 (3) of CPC, Since no leave was obtained prior to filling of the application and that too, when the suit is coming up for trial. 2. Aggrieved by the order, dated 12.03.2013, passed in I.A. No. 225 of 2010, the present civil revision petition is field. The grounds urged in the revision are that the impugned order is erroneous for the simple reason that Order n Rule 2(3) of CPC is not applicable at this stage, when the petitioner is seeking leave of the Court to amend the plaint suitably in view of the subsequent events, that the cause of action will not change, if the application is allowed for amendment of the plaint, and that the trial of the suit has not commenced and, hence, seeking leave to amend the pleadings in the plaint is within the purview of Order VI Rule 17 of CPC. 3. Though notice is served on the respondent, none appeared for him. 4. During hearing, Sri S.V.V.S.V. Prasad, learned counsel for the petitioner, contended that dismissal of the application on the ground that the relief sought for is hit by Order II Rule 2(3) of CPC, is illegal, and that the trial of the suit has not commenced and, therefore, the bar contained in proviso to Order VI Rule 17 has no application and sought to set aside the impugned order and pass appropriate orders. 5. 5. On perusal of the impugned order, it is evident that the amendment application was dismissed on the sole ground that no leave was obtained by the petitioner required under Order II Rule 2(3) of CPC. 6. Order II Rule 2 CPC deals with inclusion of whole claim which the plaintiff is entitled to make in respect of the cause of action, but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub-rule 3 of Rule 2 of CPC says that a person is 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. Order II Rule 2 (3) of CPC is based on the principle that a person entitled to more than one claim in respect of the same cause of action may sue for all or any of such claims, but if he omits, except with the leave of the Court, to sue for all such claims, he shall not thereafter sue for any portion of the claim. This rule does not persuade the second suit based on distinct cause of action. In order to invoke the said Rule, above conditions must be satisfied. 7. Coming to the present case, the suit was filed initially for the relief of injunction simpliciter, but on account of denial of title of the petitioner to the plaint schedule property by the respondent, the petitioner was forced to file the application seeking leave of the Court to amend the plaint, appropriately and the suit for injunction simpliciter can be converted into a suit for declaration and other consequential relief as per the settled law. Moreover, that would not take away valuable right that accrued to the respondent or it would not change the nature of the suit. Therefore, the petitioner is entitled to claim the relief under Order VI Rule 17 of CPC, Since Order II Rule 2 (3) of CPC has no application. The relief of declaration is not available at the time when the suit was initially filled for injunction simpliciter. Therefore, the petitioner is entitled to claim the relief under Order VI Rule 17 of CPC, Since Order II Rule 2 (3) of CPC has no application. The relief of declaration is not available at the time when the suit was initially filled for injunction simpliciter. That apart, the only bar to grant the relief under Order VI Rule 17 of CPC is the proviso that is incorporated by Act 21 of 2002 which prohibits grant of relief under Order VI Rule 17 of CPC after commencement of trial. Unless the petitioner establishes that he was prevented by the respondent despite exercise of due diligence, he could not bring those facts before commencement of trial. In the present facts of the case, the trial has not yet commenced and the case was posted for trial. Thereby, the bar under the proviso of Order VI Rule 17 of CPC cannot be applied. 8. In view of the foregoing discussion, it is clear that the relief of declaration was not available and thereby the question of seeking leave as required under Order II Rule 2 (3) of CPC does not arise. But, the trial Court on erroneous appreciation of facts and law committed an error which warrants interference of this Court. Since the trial Court failed to exercise discretion that rests on it, the order passed by the trial Court is hereby set aside while allowing the application filed under Order VI Rule 17 of CPC granting leave to the petitioner to amend the plaint as prayed for. The amendment is subject to law of limitation. 9. Accordingly, the Civil Revision petition is allowed. No order as to costs. 10. Consequently, miscellaneous petitions if any pending in the civil revision petition shall stand closed.