S.U.Khan - (1.) -Heard learned counsel for the petitioner.
(2.) LANDLORDS respondents have instituted suit for eviction against tenant petitioner in the form of S.C.C. Suit No. 51 of 2005 before J.S.C.C., Agra. Initially in the plaint, only relief for eviction was sought. Thereafter, relief for recovery of unpaid rent was also sought to be added through amendment in the plaint. Said application was allowed by the trial court on 5.10.2007. Against the said judgment and order, petitioner filed S.C.C. Revision No. 74 of 2007, which was dismissed on 3.3.2008 by District Judge, Agra, hence this writ petition. The main argument of learned counsel for the petitioner is that in the original plaint plaintiff omitted to claim the relief for unpaid rent, hence by virtue of Order II, Rule 2 (3), C.P.C. (op. cit.) it became barred. "(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." Learned counsel for the petitioner has cited K. Ram Chandran v. R. Shanker, AIR 1954 Bom 125. In the said authority, it has been held that even if subsequent suit is filed during pendency of first suit, bar of Order II, Rule 2, C.P.C. will apply to the second suit, if other ingredients are made out.
(3.) HOWEVER, in my opinion, if subsequent suit will be barred for a relief on the basis of Order II, Rule 2, C.P.C., then in the same suit amendment may be sought for adding the said relief. In this regard, reference may be made to AIR 1940 PC 70, in which it has been held that the rule does not preclude the amendment of plaint by the addition of the claim, which had been omitted. The words ''he shall not afterwards sue" used in the aforesaid provision clearly mean that subsequent suit (whether filed after the decision of the first suit or during its pendency) is barred but amendment is not barred. Seeking amendment does not amount to sue.;