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2019 DIGILAW 302 (HP)

Satish Kumar v. Mehta Raguvindera Singh

2019-03-19

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. This petition is directed against order dated 28.05.2018, passed by the Court of learned Civil Judge, Court No. 1, Solan, District Solan, in Civil Suit No. 42-1 of 2015, titled as Satish Kumar and others vs. Mehta Raghuvindra Singh and others, vide which, an application filed by the petitioners/plaintiffs under Order II, Rule 2 of the Code of Civil Procedure (hereinafter referred to as the 'Code’) praying for grant of permission to them to reserve their right to file a separate suit for claiming damages stands dismissed by the learned Court below by holding as under:- “The present application has been filed under Order 2 Rule 2 CPC. Order 2 Rule 2 applies only when the different relieves arrives from same cause of action. But, in the present case, the relief of injunction and the relief of damages are different cause of action. Hence, the present application is misconceived and is not maintainable under Order 2 Rule 2 CPC. The application is accordingly disposed. Be tagged with the main case file after doing needful.” 2. Brief facts necessary for adjudication of the present petition are as under:- The petitioners/plaintiffs (hereinafter referred to as 'plaintiffs’) have filed a suit for permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as 'defendants’) for restraining them from causing any interference, changing the nature, raising any construction on the land, causing damage etc. as well as restraining them from throwing debris, removing valuable trees from the suit land, situated in Mauja Banat, Tehsil and District Solan. According to the plaintiffs, they are owners in possession of the suit land and defendants are strangers to the same. 3. In para 6 of the plaint, it has been averred that defendants have engaged labour and JCB machines for the purpose of constructing a road through the suit land with the intent of dispossessing the plaintiffs and have caused damage to suit land. It is further averred in the said para of the plaint that the plaintiffs were getting the loss assessed and a separate application under Order II, Rule 2 of the Code was being filed by them along with the plaint reserving their right to claim damages after the assessment of the same. 4. Said application filed under Order II, Rule 2 of the Code by the petitioners/plaintiffs stands dismissed by the learned Court below vide impugned order. 5. 4. Said application filed under Order II, Rule 2 of the Code by the petitioners/plaintiffs stands dismissed by the learned Court below vide impugned order. 5. I have heard learned Counsel for the parties and also gone through the impugned order as well as the record of the case. 6. Order II, Rule 2 of the Code provides that 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. 7. The reliefs prayed for by the petitioners/plaintiffs in the suit have been broadly referred by me herein-above. There is a categorical assertion made in the plaint by the plaintiffs that defendants have caused damage to the suit land. This demonstrates that cause of action to claim damages from the defendants stood accrued as on the date when plaintiffs filed the suit. As said relief is not claimed in the suit, the plaintiffs could not have subsequently claimed the same in the teeth of the provisions of Order II, Rule 2 of the Code unless they sought permission of the Court in this regard. 8. To meet this eventuality, the plaintiffs not only clearly mentioned in the plaint itself that they were reserving their right to claim damages from the defendants, in addition as a prudent litigant, they mentioned in the plaint that a separate application for this purpose under Order II, Rule 2 of the Code was being filed with the plaint and which was actually filed by the plaintiffs. In the application, prayer was that plaintiffs be permitted to reserve their right to file separate suit for damages against the defendants as the quantum of damage was in the process of being assessed through expert. 9. Surprisingly, learned trial Court vide impugned order, on an erroneous interpretation of the provisions of Order II, Rule 2 of the Code has dismissed the application and thus refused the liberty being prayed for by the plaintiffs. 10. The reasoning assigned by the learned trial Court in rejecting the application is perverse. 9. Surprisingly, learned trial Court vide impugned order, on an erroneous interpretation of the provisions of Order II, Rule 2 of the Code has dismissed the application and thus refused the liberty being prayed for by the plaintiffs. 10. The reasoning assigned by the learned trial Court in rejecting the application is perverse. Learned Court below has erred in not appreciating that though relief of injunction and relief of damages are distinct reliefs but if the cause giving arise to both of them is common, then both these reliefs have to be claimed in the same suit unless permission is obtained under Order II, Rule 2 of the Code from the Court. 11. Learned Court below has erred in not appreciating that relief of injunction and relief of damages are different reliefs but the “cause” is both same and common in the present case. The alleged 'Cause’ is interference and encroachment upon the suit land by the defendants which allegedly also damaged the suit land. 12 Learned Court has not appreciated that in the light of the pleadings, subsequent suit to claim damages could not have been filed by the plaintiffs in lieu of bar contemplated under Order II, Rule 2 of the Code. The prayer thus made in the application by the plaintiffs seeking liberty reserving their right to file a subsequent suit for damages deserved to be allowed. 13. In view of discussion held above, this petition is allowed. Impugned order dated 28.05.2018, passed by learned Civil Judge, Court No. 1, Solan, is quashed and set aside. The prayer made in the application under Order II, Rule 2 of the Code by the petitioners/plaintiffs is allowed and they are granted liberty to institute a separate suit for damages against the defendants if so advised. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any. No orders as to costs.