T.Chatterjee. J. - (1.) - in this revision petition, the petitioner challenges the validity of an order passed by the trial court granting leave under Order 2 Rule 2 of the Code of Civil procedure to the plaintiff/opposite party to sue the petitioner separately for liquidated damages and for accounting in respect of its claim for re-imbursement arising out of breach of contract or acts of misfeasance or malfeasance on the part of the petitioner regarding the Ferry Service as prayed for in the circumstances to be presently indicated. The order has been questioned on the ground that the circumstances alleged in the application for leave did not justify the grant of leave. Let me elaborate this ground. According to the petitioner, since the whole claim in this suit includes declaration, permanent injunction and liquidated damages of 96,000 and that claim arises out of the same cause of action, the plaintiff has no right to sue separately for that claim of liquidated damages under the provision of Order 2 Rule 2 of the Code of Civil Procedure in as such as he has omitted to ask for relief in the same suit. This question relates to the exercise of the discretion which is vested by law in the trial court and except in wry exceptional circumstances it is not proper for a revision court to interfere with the way in which the trial court has exercised its discretion. In the present case I do not see sufficient reason for interfering with that exercise of discretion. The relevant facts are as follows:
(2.) M/s Ghatal Steam Navigation Company, a public limited company incorporated under the Company's Act, 1956 (hereinafter referred to as 'the company') as plaintiff has brought this suit challenging the right of the petitioner to ply vessels or to interfere with the right of the company to ply vessels and carry on Ferry Service business between Bandhaghat and Ahiritolla across the river Hooghly and for permanent and temporary injunction for restraining the petitioner and its servants from playing any vessel and carrying on any Ferry Service between the said Bandhaghat and Ahiritolla. On being misled by the assurance of the petitioner the company paid to the petitioner a share of profits arising out of that Ferry service but the petitioner in violation of form of assurance failed and neglected to place in that Ferry service one vessel which it had withdrawn and on account of that the company had withdrawn reimbursement half of the share of profit. According to the petitioner, such reimbursement is a matter of accounting between the parties and besides the reimbursement the company has further liquidated claim of damages of Rs. 96,000 more for misfeasance and tortuous acts of defendant/petitioner. In the application for leave it has been alleged also that since the Company has not included the said claim for reimbursement and liquidated damages in the present suit in order to oviate confusion and as the reliefs claimed in the shape of declaration and injunction for the sake of protection of the right of the company in respect of the ferry service in question constitute the subject matter of this suit which is quite different from the said claim for reimbursement and liquidated damages. The plaintiff may sue the defendant for such relief by bringing another suit. The application for leave under Order 2 rule 2 of the Code of Civil Procedure was contested by the defendant/petitioner by filing a written objection whether it was alleged that the plaintiff having omitted to sue in respect of such claim it must be held that he intentionally had relinquished the said claim and as such was not entitled to sue afterwards for that claim. It was further alleged is the written objection that as the alleged claim for money of the company arise out of the same cause of action of this suit and the company having omitted to sue is respect of the said claim was debarred from sueing afterwards in respect of the said claim. The trial court after hearing the learned counsel for the parties and after going through the materials on record and the application and written objection filed in connection with the question of grant of leave under order 2 rule 2 of the Code of Civil Procedure asked for by the opposite party. has granted leave to the company to sue under order 2 rule 2 of the Code of Civil Procedure. While allowing the application for leave under order 2 rule 2 of the Code of Civil Procedure the trial court held that the claim for liquidated damages and accounting, for reimbursement cannot be said to be an integral part of the claim in the present suit which entirely relates to the right of ferry service in question and not to any monetary claim and therefore, non-inclusion of the claim for liquidated damages and of accounting in the present suit was not a case of relinquishment on the part of the claim in this suit within the meaning of sub rule 2 rule 2 of order of the Code of Civil Procedure. The trial court further held in the impugned order that even if it was considered that the claim for liquidated damages and accounting had flown form the same cause of action yet the company may reserve its right to litigate the said claim in a separate proceeding with the leave of court by virtue of the provisions under order 2 rule 2(3) of the Code of Civil Procedure for the reason that in this suit the principle and fundamental reliefs relate to the right of ferry service in question and if these reliefs are granted, it would provide the basis for claiming such liquidated damages and accounting against the petitioner. The trial court has also held that the claim for liquidated damages and for accounting, even if arising out of breach of contract, is squarely covered under clause (a) and (b) of order 2 rule 2 of the Code of Civil Procedure as they are passed on distinct and separate cause of action from the cause of action for establishment of the exclusive right over the ferry service in question for which reliefs have been sought for in the instant suit and accordingly, a separate suit for the said claim is quite maintainable in law and the same shall not be barred under order 2 rule 2 of the Code of Civil Procedure. Feeling aggrieved by this order the defendant-petitioner has come up to this court in revision.
(3.) On the facts stated above Mr. Dasgupta appearing on behalf of the defendant/ petitioner has contended that on a proper construction of clause 3 of order 2 rule 2 of the Code of Civil Procedure leave ought not to have been granted to the plaintiff/opposite party as the trial court ought to have held that the company having intentionally relinquished the portion of its claim in respect of the liquidated damages and accounting in that plaint itself which arose in respect of the same cause of action is not entitled afterwards to sue for any relief which has been omitted. In support of this contention, Mr. Dasgupta relied on two decisions of this court reported in AIR 1955 Calcutta 402 (Shrimati Birnal Kumari v. Ashok Mitra) and in 87 CWN 54 (Debabrata Tarajdar v. B.M. Pardhan).;