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Monday, February 6, 2017

Order 2, R.2 =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.

HONBLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 87 OF 2014  

11-07-2014

Kamal Ashok Futnani... PETITIONER  

G. Nalini RaoRESPONDENT    


Counsel for the Petitioner: Ms. Manjari S. Ganu

Counsel for the Respondent: Sri K. Vivek Reddy


<GIST:

>HEAD NOTE:  

? Cases referred
1.      2011 (2) ALD 101 (SC)
2.      2001 AIHC 2353

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 87 OF 2014  

Dated:11-07-2014

ORDER:


      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  and of the Bombay High  
Court in Shakuntala J. Gujar v. Dilip R. Pawar .

      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.  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 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.  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.
___________________________    
L. NARASIMHA REDDY, J    
11h July, 2014

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