Decided on January 05,2012

Indu Bora Appellant
Civil Judge (S D ), Nainital Respondents


- (1.) HEARD Sri Arvind Vashisth, the learned counsel for the petitioner, Sri Sudhir Kumar, the learned Brief Holder for the State/respondent no. 1 and Sri Pradeep Hairiya, the learned counsel for respondent no. 2. No one appears on behalf of the other respondents even though they have been served.
(2.) THE petitioner filed a suit for declaration praying that the lease deed dated 6th June, 1985 and 11th August, 1986 are void and inoperative. A relief of restoration of vacant possession was also sought. With these reliefs, the plaint was presented. The Munsarim submitted a report with regard to the court fee. Since a separate court fee on possession was demanded, the counsel for the plaintiff moved an application dated 14th July, 1997 seeking permission to delete the relief of possession. This application was allowed and the plaintiff was permitted to delete the relief of possession. The trial court held that since the suit had not as yet been registered) permission to delete the relief can be granted. During the pendency of the suit, the plaintiff realized that the suit for declaration alone was not maintainable in view of Section 34 of the Specific Relief Act and consequently, filed an application dated 29.6.2001 under Order 6 Rule 17 of the Code of Civil Procedure seeking permission to add paragraph 14 -B after paragraph 14 -A of the plaint and seeking addition in the relief clause. By the amendment application, additional paragraph was sought for the purpose of indicating the valuation for the relief of possession. In the relief clause, the amendment sought was for a decree of possession. This application was resisted by the defendants objecting to the maintainability of the application. The defendants urged that the same relief was earlier deleted by the plaintiff which was allowed and no leave was sought and consequently, the application seeking amendment of the same relief was barred under Order 2 Rule 2 of the Code of Civil Procedure.
(3.) THE trial court, after considering the matter, rejected the application of the plaintiff holding that the amendment seeking addition of the relief of possession was barred under Order 2 Rule 2 C.P.C. The plaintiff, being aggrieved by the said order, has filed the present writ petition under Article 227 of the Constitution of India. The learned counsel for the petitioner submitted that at the time when the relief was omitted, the suit had not as yet been registered and therefore, the principles applicable under Order 2 Rule 2 or under Order 23 Rule 1 and 3 C.P.C. are not applicable. On the other hand, the learned counsel for the respondent no. 2 submitted that when a part of the claim was relinquished by the plaintiff without seeking the leave of the court and since the plaintiff had intentionally relinquished his claim, the same cannot be added through an amendment under Order 6 Rule 17 C.P.C. and that the same was clearly barred under Order 2 Rule 2 C.P.C.;

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