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Chimanlal Ambalal Vs. Hasmukhlal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1215 of 1974
Judge
Reported inAIR1976Guj60; (1976)GLR40
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2(2)
AppellantChimanlal Ambalal
RespondentHasmukhlal and anr.
Appellant Advocate B.R. Shelat, Adv. for; C.N. Desai, Adv.
Respondent Advocate G.P. Vyas, Adv.
Cases ReferredIn Jagat Singh v. Sangat
Excerpt:
- - the language of this sub rule (2) of rule 2 of order 2 of the code itself clearly indicates the soundness of the argument advanced by mr. cannot clearly be the case in view of the judgment of their lordships of the privv council in -mahomed khalil khan v. clearly committed an error in holding that there would be such a bar and consequent1y a valuable right has accrued in favour of the opponents defendants and so such an amendment application should not be allowed......the order passed by the learned joint civil judge. senior division. dated 5-2-1974. in special civil suit no. 50 of 1972 below application. ex. 13.2. the facts leading rise to this revision petition. briefly stated. are as under:3. petitioner filed summary civil suit no. 1877 of 1969. in the city civil court. ahmedabad. on 28-8-1969. to recover a sum of rs. 10.500/- from the opponents. preliminary issue regarding jurisdiction was raised and it was held that the city civil court. ahmedabad had no jurisdiction to entertain and hear the suit. the plaint was. therefore. ordered to be returned to the plaintiff (petitioner) for its presentation to the proper court on 25-9-1972. against that order. the petitioner had filed civil revision application on 23-10-1972 in this court. and that was.....
Judgment:
ORDER

1. This revision petition is filed by the original plaintiff against the opponents-defendants under Section 115 of the Civil Procedure Code against the order passed by the learned Joint Civil Judge. Senior Division. dated 5-2-1974. in Special Civil Suit No. 50 of 1972 below application. Ex. 13.

2. The facts leading rise to this revision petition. briefly stated. are as under:

3. Petitioner filed Summary Civil Suit No. 1877 of 1969. in the City Civil Court. Ahmedabad. on 28-8-1969. to recover a sum of Rs. 10.500/- from the opponents. Preliminary issue regarding jurisdiction was raised and it was held that the City Civil Court. Ahmedabad had no jurisdiction to entertain and hear the suit. The plaint was. therefore. ordered to be returned to the plaintiff (petitioner) for its presentation to the proper Court on 25-9-1972. Against that order. the petitioner had filed Civil Revision Application on 23-10-1972 in this Court. and that was rejected by this Court on 25-1011972. The petitioner took the plaint from the City Civil Court on 25-10-1972 and presented it to the Court of the Civil Judge. Senior Division. Mehsana. on 26-10-1972 and it came to be numbered as Special Civil Suit No. 50 of 1972. In that Suit. petitioner filed application. Ex. 13. for permitting him to amend the plaint. One amendment sought for. was to incorporate the facts necessary for condoning the delay made in filing the matter before the Mehsana Court on the ground that he was bona fide prosecuting the suit on the same cause of action in the City Civil Court. Ahmedabad. but the said Court has returned the plaint to him for presenting it to the proper Court on the ground that that it had no jurisdiction to hear the suit. That amendment is allowed by the trial Court. We are. therefore. not concerned with that amendment.

4. The second amendment sought for. was for adding a claim for the interest amount that is alleged to have fallen due till the date of presentation of the suit before the Court. That amendment has been disallowed by the trial Court on the ground that it was necessary to in, elude this claim of interest which had become due till the date of the presentation of the plaint before the Court while presenting the plaint before the Court. But as the petitioner had not done so. it assumes the position of the relinquished claim in view of the provisions of Order 2. Rule 2 of the Civil P. C. (which will be hereinafter referred to as 'the Code') and in view of sub-rule (2) of Rule 2 of Order 2 of the Code. plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. According to the learned trial Judge. it was the legal right that accrued in favour of the defendants and any such amendment taking away that right is not allowed. It is on this reasoning that he has disallowed this proper made by the petitioner.

5. The petitioner. by this amendment. sought for including his claim of interest of Rs. 3.790/- due for the period from 28-8-1969 to 25-10-1973. Interest was calculated on the principal amount of Rs. 10.000/- at the rate of 12 percent. per annum. He also praved for consequential changes in the praver clause on that basis.

6. Mr. B. R. Shelat. appearing for Mr. C. N. Desai for the petitioner. has contended that the reasoning of the learned trial Judge is not sound. The learned trial Judge. submitted Mr. Shelat. has not borne in mind the relevant provisions of Order 2. Rule 2 of the Code. and has misunderstood its real content.

7. Order 2. Rule 2 of the Code reads.

'(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 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.'

Mr. Shelat has submitted that it was true that at the time of representation of the plaint in the trial Court. this interest amount had become due. At the time of representation of the plaint. this claim could have been included and it had remained to be included. It was. therefore. evident that it was omitted to be included in the plaint that came to be presented in the Mehsana Court. But the important part of sub-rule (2) of Rule 2 of Order 2 of the Code in terms states that the plaintiff shall not afterwards sue in respect of the portion so omitted or relinquished. The petitioner has not filed any other suit in respect of the portion so omitted or relinquished. In this very suit. plaintiff wants to amend his plaint and include the claim. which. through mistake. came to be omitted. There could not. therefore. be any bar of O. 2. R. 2 of the Code. The learned trial Judge. submitted Mr. Shelat. has overlooked this latter part of sub-rule (2) of Rule 2 of Order 2 of the Code which creates a bar to sue in respect of the portion so omitted or relinquished subsequently. As there is no such suit filed. when the claim is made for such a portion of the claim omitted or relinquished and in this very suit only praver is made to include that claim. there cannot be any bar of the Provisions of Order 2. Rule 2 of of the Code. The language of this sub rule (2) of Rule 2 of Order 2 of the Code itself clearly indicates the soundness of the argument advanced by Mr. Shelat.

8. In Upendra Narain v. Janaki Nath ILR 45 Cal 305 : (AIR 1919 Cal 904) a Division Bench of Calcutta High Court had an occasion to consider this question. (At pp. 315 and 316 of I. L. R. Cal.) = (at pp. 906-907 of A. I. R. Cal.). Woodroffe. J.. has observed:

'.......... As regards the other point it has more ingenuity than substance. It proceeds on the erroneous assumption that the amendment was prohibited by O. 2. R. 2. This rule does not touch the matter before us. It refers to a case where there has been a suit in which there has been an omission to sue in respect of portion of a claim. and a decree has been made in that suit. In that case a second suit in respect of the portion so omitted is barred. That is not the case here. In the present case the quit has not been heard but a claim has been omitted by. it is said. inadvertence. To hold that in such case an amendment should not be allowed would be to hold something which. the rule does not say and which would be absurd. The rule says 'he shall not after wards sue.' that is. it assumes that there has been a suit carried to a decision. and a subsequent suit. It does not apply to amendment where there has been only one suit. As the plaintiff had in law a right to apply for an amendment for the conclusion of his suit. it cannot be said that any rights of the appellant in the Pabna suit are affected. Such a contention is based on the erroneous assumption that nothing could be done by way of amendment of the Calcutta suit to remove the objection that the claims on the previous mortgage or charge were not sustainable. A case would fall within O. 2. R. 2. only if a plaintiff fails to apply for amendment before decree. and then brings another suit. The plaintiffs are not doing that but asking for amendment in the one and only suit they have brought. This is. therefore. not a case in which the amendment either affects rights accrued to the other party. or otherwise prejudices him.'

9. In Krishnaji Ramchandra v. Raghunath Shankar. AIR 1954 Born 125. at DD. 127 and 128. Dixit. J.. has observed.

'Now. Mr. Madbhavi argues that what we have to look to for the purpose of determining the bar of Order 2. Rule 2. is the point of time when the suit is instituted. In this connection the language of Order 2. Rule 2 (2). may be contrasted with the language of Order 2. Rule 2 (3). Order 2. Rule 2 (2) speaks of an omission to sue or intentional1y relinquishing a portion of the claim. while Order 2. Rule 2 (3). speaks of a person being entitled to more then one relief in respect of the cause of action and while considering Order 2. Rule 2 (3). one has to consider the question of the leave of the Court. No question of the leave of the Court arises under Order 2. Rule 2 (2). In a case where the leave of the Court is to be sought. it may be possible to argue that the point of time is not the point of time of the institution of the suit. but the point of time is the point of time of the passing of the decree. But here again it is unnecessary to express any final pinion upon the question because that question does not strictly arise. confining therefore. my observations to Order 2. Rule 2 (2). the question for consideration is. whether as Mr. Madbhavi contends. the point of time is not the date of the filing of the suit but the date of the passing of the decree. But if one closely looks at the language of Order 2. Rule 2 (2) it is clear that the point of time under O. 2. R. 2 M. is the point of time of the institution of the suit. This is clear from the language of the rule itself. because same meaning has to be given to the expression 'afterwards' occurring in O. 2 R.2 (2). and the expression 'afterwards' can be construed on1y with reference to what precedes it. viz.. 'emits to sue'. When. therefore. the two expressions 'omits to sue' and 'afterwards' are considered together. it must follow. I think. that the point of time is not the date of the coasting of the decree but the date of the institution of the suit. If that is so. then it is clear that when the plaintiff filed Suit No. 633 of 1942. he did not include in that suit the whole of his claim in respect of the cause of action and. therefore the plaintiff must be taken to have invited the operation of Order 2. Rule 2 (2). because the plaintiff must be taken to have either omitted to sue or intentionally relinquished a portion of his claim. Whether it is the result of an omission or the result of a relinquishment. it makes no difference-not any difference even when the plaintiff subsequently files a suit and that is the bar imposed by Order 2. Rule 2 (2). It was suggested that in this case the persons in possession were different to bring separate suits. But that. I think. cannot clearly be the case in view of the judgment of their Lordships of the privv Council in - 'Mahomed Khalil Khan v. Mahbub Ali Man '.

It is significant to note that in the instant case we are not concerned with any such question of point of time. whether the point of time would be the institution of the suit or the passing of a decree. as the plaintiff has not filed any other suit. We are concerned with the very suit in which such claim, came to be omitted and the petitioner in that very suit now wants to include by the amendment of the plaint.

10. In Jagat Singh v. Sangat at Singh AIR 190 PC 70. the Privv Council has. at page 73. made the follow instructive observations:

'The High Court would seem to have assumed that S. 19 (of the Civil P. C . 1882) was not merely permissive: also that the claim to recover possession of the Lvallpur lands and the claim to a declaration as regards the other lands were claims in respect of the same cause of action: cf. (1914) 41 Ind App 142 (PC). Their Lordships think that both assumptions are highly debatable. But. in any case, the claim of the present appellants as reversioners of Ishar Singh would not have been barred so far as regards the question whether Ishar Singh's will gave to his widow an absolute interest or an interest for her life. Moreover. So long as the suit of 1906 was indisposed of. it was always possible that the Court if it thought that there was anything in the point as to Order 2. Rule 2. would give leave to the plaintiff to amend by including a claim to recover possession of the ornaments and Lvallpur lands.'

It is thus evident that such an amendment can be allowed and there cannot be any bar of the provisions of Order 2. Rule 2 (2) of the Code. The learned trial Judge has. in my opinion. clearly committed an error in holding that there would be such a bar and consequent1y a valuable right has accrued in favour of the opponents defendants and so such an amendment application should not be allowed.

11. Revision petition is allowed. The order passed by the trial Court. that this second amendment cannot be allowed. is set aside and that amendment is also allowed and the petitioner is permitted to include the said claim of interest in his amended plaint. Opponents to pay the costs of the petitioner in this revision petition. Rule is made absolute.

12. The learned trial Judge will give reasonable time to the opponents after the amendment is carried out by the plaintiff-petitioner. to file a written statement to the amended plaint. It is needless to say that it will be open to the opponents to contend. a portion of this claim included is time barred.

13. Petition allowed.


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