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Arikatla Venkata Swami (Died) and ors. Vs. Mavillapalli Veeraiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 292 of 1954
Judge
Reported inAIR1961AP157
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2(1) and 2(3)
AppellantArikatla Venkata Swami (Died) and ors.
RespondentMavillapalli Veeraiah and ors.
Appellant AdvocateM.V. Srinivasa Rao, Adv.
Respondent AdvocateT. Rama Chandra Rao, Adv. for A. Kuppuswamy, Adv.
DispositionRevision Petiton allowed
Excerpt:
.....neither independent claim nor form subject mater of several reliefs - all properties made single claim - suit governed by rule 2 (1) and 3 has no application. - - it is also important to point out that the only relief that could be sought in both the cases was realisation of the mortgage security for the mortgage was a simple mortgage containing no express covenant for the payment of the principal and the interest'.13. on the plain language .of the rule and authority, there is no scope for viewing a claim like the one involved in this case as coming under sub-rule (3) of rule 2. a claim to foe put forward to various items of property by a plaintiff when reversion tails is governed by sub-rule (i) and rule 2 and the reversioner cannot reserve his right in regard thereto even with..........same time and not piece-meal so that a man may not be vexed twice in regard to the same cause of action. rule 2 requires that the whole claim i.e. the entirety of the claim, should be embraced in one action on the peril of the plaintiff being debarred from bringing another suit in respect of the portion omitted since it would be deemed that he had intentionally relinquished it. the scheme of the rule is that it is mandatory that the right based upon one cause of action should be litigated in one suit, unless it comes within the purview of sub-rule 3.5. it is contended for the respondents that it is permissible for a plaintiff to split up the claim,provided permission of the court is obtained: otherwise sub-rule 3 will be deprived of its full content, urges the counsel for the.....
Judgment:

Chandra Reddy, C. J.

1. This revision petition is against the order of the Subordinate Judge, Nellore. granting permission under Order II Rule 2 C. P. C. to institute another suit for recovery of the plaint C schedule properties.

2. The plaintiffs, as reversioners to the estate of one Ramabotlu, who died in 1901 childless leaving behind him his widow Rosamma, brought a suit in the Court of the Subordinate Judge, Nellore, for recovery of the properties belonging to Rama-bhotlu. Rosamma died in January 1953. It was recited in the plaint that Ramabhotlu died possessed of the A and B Schedule properties, that the C schedule properties were acquired with the income from the A and B schedule properties, that, with a view to defeat the rights of the reversioners she began to take conveyances in the name of the defendant, who is her brother's son, and that they formed accretions to the estate notwithstanding this fact.

3. The plaintiffs asked for a decree directing the defendant to deliver possession of the A and Bschedule properties to the plainliffs and to account for the mesne profits arising on the A and B schedule properties, the properties disclosed in the B schedule being moveables. As regards the C schedule properties they asked for permission to file another suit on the ground that they were not possessed of sufficient funds to pay court-fee thereon. The Subordinate Judge accorded the permission asked for in two words 'permission granted'. It is this order that is now sought to be reversed.

4. The primary question that falls to be decided is whether it was competent for the lower court to give the leave requested for. This depends upon the meaning to be given to Order II Rule 2 C. P. C. Rule 2 says:

'(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) Where a plainiiff 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) 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.

ILLUSTRATION :

A lets a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years 1805. 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1903 or 1907'. Thus, the plaintiff should include the whole of the claim that had accrued up to the date of the suit. If he fails to do so, he is debarred from instituting another suit for further relief on the same cause of action i.e. the entire claim, which the plaintiff has against the defendant at the time the action is brought, should be the subject-matter of the suit. This rule aims at the elimination of the two evils of splitting up of claims and reliefs. The desire of the legislature to prohibit multiplicity of suits finds expression in this rule.

The intendment of this rule is that parties, who have got certain rights, should assert them all at the same time and not piece-meal so that a man may not be vexed twice in regard to the same cause of action. Rule 2 requires that the whole claim i.e. the entirety of the claim, should be embraced in one action on the peril of the plaintiff being debarred from bringing another suit in respect of the portion omitted since it would be deemed that he had intentionally relinquished it. The scheme of the rule is that it is mandatory that the right based upon one cause of action should be litigated in one suit, unless it comes within the purview of Sub-rule 3.

5. It is contended for the respondents that it is permissible for a plaintiff to split up the claim,provided permission of the court is obtained: otherwise Sub-rule 3 will be deprived of its full content, urges the counsel for the respondents. We are unable to give weight to this theory. This construction amounts to treating Sub-rule 3 as a proviso to Sub-rules (1) and (2).

6. If that were the purpose of the framers of the Code this would have been inserted in Sub-rule (1) itself. In our opinion Sub-rules 1 and 3 deal with different situations. Sub-rule 3 is attracted only to a case where a number of reliefs flow from the same cause of action. That Sub-rule does not contemplate a subject-matter which is capable of only one claim.

In an eventuality of several reliefs accruing, from the same cause of action a party might agitate a part of the cause of action in one suit reserving his right with the leave of the Court to litigate the other part in a subsequent suit. But if a party asks for a limited relief when a larger one is available to him he incurs the penalty provided in Sub-rule (3). The language of the rule is incapable of the interpretation that is sought to be put upon it.

7. There is authority for the view we take. In Govind Hari Dev v. Parashram Mahadev Joshi, ILR 25 Bom 161 a settlement of account between the plaintiff and the defendant resulted in a large sum of money being found due by the defendant. It was agreed between them that a portion of the debt should be paid off before a particular date and for the balance a mortgage on certain specified immovable properties should be furnished and in the event of the defendant failing to pay a part of the claim in cash within a particular time, the mortgage was to be for the full amount.

The defendant committed default in regard to both the stipulations, whereupon the plaintiff fled a suit to recover the money agreed to be paid in the first instance with interest thereon and obtained a decree. A suit for directing each defendant to pass to him a mortgage bond for the balance due was held to be barred under Section 43 of the Civil Procedure Code, which corresponds to the present Order II Rule 2 on the ground that they were parts of one total indebtedness and the whole amount was payable in respect of every part of that amount when the first suit was commenced, there being only one cause of action.

8. The princinle enunciated by the same Court in Raja Bahadur Shivlal v. Rajeevappa Pampanna, 1 Ind Cas 319 is in accordance with Govind Hari Dev v. Parashram Mahadev Joshi, ILR 25 Bom 161. The question there was whether two actions could be maintained for breaches of the different terms of a contract. In the first suit, the plaintiff chose one of the stipulations in the agreement and claimed relief in respect of it. That was disallowed for some reason. Another suit based upon the same agreement out and asking for relief by way of damages in respect of other stipulations was filed. The second suit was dismissed for the reason that the plaintiff should have claimed damages in regard to all the stipulations in the prior suit. It was observed there that the question of leave would have been material.

'If the omission in the previous suit had related to any of the remedies to which the plaintiff was entitled and the penultimate paragraph of Section 43had applied. But here the question is not one of any remedy but it is of a claim arising out of the breach of contract averred (both in the plaint in the previous suit and in the plaint in the present suit) as constituting the plaintiff's cause of action.'

9. The latter case has specifically drawn the distinction pointed out by us above, namely, a cause of action affording one relief only in regard to different aspects of the same matter and a cause of action giving rise to more than one relief,

10. A pronouncement of the Privy Council in Naba Kumar v. Radhashyam, AIR 1931 PC 229 affords us some assistance in this enquiry. There, the prior suit was for a decree directing the defendant to convey the properties purchased in an execution sale with necessary accounts. That relief was granted. The second suit based upon the allegation that, after the execution purchase of the properties, the defendants had received vents and profits for which they had not accounted and with a prayer for account and payment was held to be unsustainable as that relief could have been claimed in the previous suit. It is thus plain that Sub-rule (3) is attracted only where distinct and independent reliefs could be claimed in one suit and is inapplicable to a case where a single relief could be granted in regard to one claim which comes within the ambit of Sub-rule 1, which is intended to deal with the vice of splitting up of one claim.

11. We will now proceed to consider whether each of the items could be treated as a different claim which would give a different form of relief and which could he litigated at several stages as sought to be made out by the counsel for the respondents. We arc unable to agree that this is the effect of Sub-rule 1. We think that all the items together make one claim, that each of them cannot be regarded as forming one claim giving rise to a separate relief and that one single claim could be made in respect of various items of property. The different items are only portions of a claim. It is difficult to postulate that the different sets of property, which a reversioner is entitled to recover, constitute independent claims and form the subject-matters of several reliefs. The contention in this behalf views the proposition from a wrong angle.

12. In Muhammad Hafiz v. Mirza Muhammad Zakariya, 42 Mad LJ 248: (AIR 1922 PC 23), a mortgagee, who was entitled to realise the whole mortgage money by reason of the defaults committed by the mortgagor, sued for interest only, exercising the option given to him by the document. A subsequent action for principal and further interest was dismissed as not maintainable since he must be deemed to have relinquished his further relief in the first suit. Discussing the right to bring another suit, Lord Buckmaster remarked thus:

'It is also important to point out that the only relief that could be sought in both the cases was realisation of the mortgage security for the mortgage was a simple mortgage containing no express covenant for the payment of the principal and the interest'.

13. On the plain language .of the rule and authority, there is no scope for viewing a claim like the one involved in this case as coming under Sub-rule (3) of Rule 2. A claim to foe put forward to various items of property by a plaintiff when reversion tails is governed by Sub-rule (i) and Rule 2 and the reversioner cannot reserve his right in regard thereto even with the leave of the Court.

14. Even otherwise, the order in question can-not be allowed to stand. The learned Judge does not seem to have applied his mind to the question that presented itself to him. The order does not give any indication of his having thought over the matter. As already remarked, the order reads 'Permission granted'.

15. We do not feel that this is a case in which the discretion that is vested in a court could be exercised in favour of the plaintiffs. The reason adduced in support of the request was admittedly not one which could recommend itself to a Court for invoking Sub-rule (3) namely, inability to pay court-fee in regard to a part of the claim. Orders of this description would encourage litigants to resort to multiplicity of suits and would help them to gel over the provisions of Rule 2, which deals with the vice of splitting up of claims and which is a salutary rule.

A perusal of paragraph 22 of the plaint should have convinced the Subordinate Judge that the procedure adopted by the plaintiffs was calculated to harass the defendant. The recitals themselves clearly establish that there was no semblance of a case for the plaintiffs in regard to the properties set out in C schedule. Viewed in any light, this is not a case in which permission within the meaning of Sub-rule (3) could be granted.

16. In these circumstances, this revision petition is allowed without costs.


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