SELVARAJ DIED Vs. NARAYANAN

JUDGEMENT

(1.) (This second appeal has been preferred under Section 100 C.P.C. and the cross objection is filed under Order 41 Rule 22 r/w Order 42 Rule 1 and Section 108 C.P.C. against the judgment and decree dated 23.7.1997 in A.S.No.10 of 1997 by the learned Principal District Judge, Villupuram, which was preferred against the judgment and decree, dated 12.12.1996 in O.S.No.84 of 1996 on the file of the learned Principal District Munsif, Kallakurichi.) Common Judgment: This judgment shall govern this second appeal and the cross objection. The second appeal is filed by the defendants and the cross objection is filed by the plaintiff.

(2.) IT was originally a suit filed by the plaintiff in O.S.No.484 of 1996, seeking for the relief of declaration, recovery of possession and for mesne profits. On trial, the suit was dismissed by the trial court. On rejection of the case of the plaintiff, an appeal was preferred by the plaintiff in A.S.No.10 of 1997. On enquiry of the appeal, the learned District Judge, Villupuram granted the relief in respect of declaration and recovery of possession and also granted mesne profits at the rate of Rs.6000/- per year. Aggrieved the defendants have brought forth this second appeal, while the plaintiff, aggrieved over the disallowed portion in respect of mesne profits, has brought forth cross objection.

(3.) THE defendants further contested stating that originally two suits were filed, one in O.S.No.130 of 1992 and the other in O.S.No.1047 of 1992; that the first suit was filed for declaration and injunction and in alternative recovery of possession; that the second suit was filed for declaration and injunction; that O.S.No.1047 of 1992 was withdrawn on 12.3.1993 even without permission to file the fresh suit; that O.S.No.130 of 1992 was withdrawn on 2.3.1993 itself with permission to file a fresh suit; that in these cases, originally the relief sought for was declaration; that the cause of action shows the date of purchase of the property; that the other reliefs sought for were injunction and in alternative recovery of possession and under these circumstances, the suit is hit by Order 23 Rule 1 C.P.C; that there was abandonment of suit and no permission was granted in the earlier suits, which were pending; that apart from that, while the cause of action was very well available, the plaintiff has not included the relief in the earlier suits and thus, he was prevented from filing the other suit and it is hit under the provisions of Order 2 Rule 2 C.P.C and hence, the suit was to be dismissed.