- (1.) HEARD Mr. D.C. Mukherjee, learned counsel for the petitioners as well as Mr. R.S. Pandey, learned counsel for the opposite parties.
(2.) THE petitioners have challenged the order dated 20th of July, 2010, passed by the Additional Civil Judge (Senior Division) Faizabad in Original Suit No.241 of 2004 as also the order dated 10th of November, 2010, passed by the District Judge, Faizabad in Civil Revision No.215 of 2010. Before the trial Court the issue for decision was; Whether the suit is barred by Order 2, Rule 2, C.P.C.? Before making any discussion on the facts and circumstances of the case in order to appreciate the correct interpretation of Order 2, Rule 2 of the Civil Procedure Code, the same is extracted here-in-below :- "Order 2, Rule 2 :- (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 if 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 relief, but he omits except with the leave of the Court, to sue for all such relief he shall not afterward sue for any relief so omitted .
(3.) MR. Mukherjee, learned counsel for the petitioners submits that basically the dispute between the parties is for the propriety of Sarvarahkar of Thakur Vijay Raghav Bhagwan Virajman Ranopali, Faizabad, which is pending consideration at the stage of second appeal being second appeal No.461 of 2006 before this Court arising out of orders passed in the Appeal as well as in suit No.324 of 1987, filed by one MR. Rajveer Singh, in which the petitioners as well as present respondents 3 and 4 are the respondents. In 2004, the respondent No.3 Mahant Ramesh Das and Rajdeo Das alias Rajveer claiming themselves as Sarvarahkar of Thakur Vijay Raghav Bhagwan Virajman Ranopali filed a suit being suit No. 141 of 2004 for permanent injunction, against the petitioners, which is pending consideration. Subsequently, they also filed a suit being suit No.241 of 2004 in the Court of Civil Judge (Senior Division), Faizabad seeking a decree for declaration of a sale deed executed in favour of the petitioners as void. The petitioners raised objection against the maintainability of the suit on the ground that suit is barred by Order 2, Rule 2, C.P.C. They submitted that when in 1987 they filed the suit bearing Suit No.324 of 1987 raising the dispute of Sarvarahkar, in paragraph 6 of the plaint they alleged that they had already instituted a suit for declaration of sale deed as illegal, which indicates that they were aware with the sale deed executed in favour of the petitioners at that very time and being aware with the said facts, they could have sought the relief for cancellation of sale deed, but they relinquished their claim and now in the light of the provisions of Order 2, Rule 2, C.P.C, it is not open for them to sue the petitioners for such a relief, which they have already omitted. In support of his submissions learned counsel for the petitioners Mr. Mukherjee cited several cases, decided by this Court as well as by the Hon'ble Supreme Court, some of them are cited hereunder :- (1) Ganpat Lal Gupta and others v. 5th Additional District Judge, Deoria and others, reported in 2003 (21) LCD 977 : (2003 All LJ 2423) relevant paragraphs 30, 31 and 32 of the same are quoted here-in-below :- "30.The learned revisional Court has set aside the order of the trial Court allowing the amendment on the basis of the provisions of Order 2, Rule 2, CPC which provides that if a party could seek a particular relief at the time of the institution of the plaint and does not ask for the said relief, it would amount to waiver, relinquishment of such right and subsequent suit shall be barred for grant of such relief. In Mohammad Khalil Khan and Ors. v. Mahbub Ali Mian and Ors., A1R1949 PC 78 the scope of application of the provisions of Order 2, Rule 2, CPC was considered by the Privy Council. The Court held that if the occasion for a particular lis arises subsequent to the institution of the suit, it cannot be barred by the provisions of Order 2, Rule 2, CPC and in order to determine as to whether the said provisions are attracted or not, the Court has to consider as what was the cause of action in the earlier suit oh which the plaintiffs founded their claim and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit, or if they failed to include all the claims then by force of Order 2, Rule 2, CPC they are precluded to include the same by bringing the subsequent suit. The Court placed reliance upon its earlier judgment in Moonshee Buzloor Ruheem v. Shumsunnissa Begum (1887) 11 MIA 551, wherein it has been held as under :- "The correct test in all cases of this kind is whether the claim in the new suit which in fact founded on a cause of action distinct from that which was the foundation of the foremost suit." 31. In State of Rajasthan and another v. Nav Bharat Construction Co., (2002) 1 SCC 659 : (AIR 2002 SC 258), the Hon'ble Supreme Court held that in respect of dispute regarding subsequent claims arisen after the first reference cannot be held to be barred by the provisions of Order 2, Rule 2, CPC for the reason that subsequent claim may be founded on a different cause of action. Similar view has been reiterated by the Apex Court in Commissioner of Income-tax, Bombay v. T.P. Kumaran, (1996) 10 SCC 561; 1996(11)SCC 112 Ladu Ram v. Ganesh Lal, (1999) 7 SCC 50 : (AIR 1999 SC 3057); and Maharashtra Vikrikar Karmchari Sangathan v. State of Maharashtra, AIR 2000 SC 622. 32. Thus, the settled legal proposition in respect of the. provisions of Order 2, Rule 2, CPC emerges is that if a party does- not ask for a relief for which he was entitled to at the time of the institution of the suit it would amount to waiver of that right and cannot be claimed later in a subsequent suit." (2) Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another, reported in (2008) 11 SCC 753 : (AIR 2008 SC 2187) relevant paragraph 28 of which is quoted here-in-below :- "28. Similarly the provisions of Order 2, Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need not go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof." ;