SRI DHAR CHAUBE Vs. SARSWATI

JUDGEMENT

(1.) This is a Defendant's appeal from an order of remand. The dispute was with respect to a piece of land situate in mohal Purani Bazar in the city of Jaunpur and specified by letters AXESGHCFYD in the map annexed to the plaint. On the north of this land there is the house of the Defendant. On the west there is the house of the Plaintiff. It was alleged by the Plaintiff that at one time both these houses originally belonged to the Plaintiff's husband and his ancestors and the disputed land used to be the ahata and sehan of the houses; that a few years before the institution of the suit the house now with the Defendant was sold by the Plaintiff to him; and that in a corner of this land there was the latrine of the Plaintiff. The Plaintiff contended that in December, 1947, the latrine was demolished and the Plaintiff wanted to reconstruct the ahata walls on their old foundations, but the Defendant caused interference and did not allow her to do so. The Plaintiff accordingly claimed an injunction restraining the Defendant from interfering with her possession of the land shown by letters XEFY which was part of the larger portion of the land specified above and also from interfering with the reconstruction of the boundary walls round the disputed land shown by letters AXESGHCFYD. The Defendant, inter alia, pleaded that the land specified as XEFY was not in possession of the Plaintiff and the Plaintiff was not entitled to any relief. The trial court granted the Plaintiff a decree for injunction in term claimed in the plaint with a direction that the Plaintiff will leave a strip of land four feet wide towards the east and the south as a passage for Defendant's sweeper for going to Defendant's present latrine. The lower appellate court came to the conclusion that (he Plaintiff had not been in possession of the land specified as XEFY. The lower appellate court further found that the Defendant is not the tenant of this land and is not entitled to remain in possession thereof. The lower appellate court accordingly remanded the case to the Munsif with direction to readmit the suit to its original number and then to call upon the Plaintiff to get her plaint amended so as to include a relief for possession and to pay the requisite court-fee and there after the suit should be decided in the light of the observations made by the appellate court. It is against this order that the present appeal has been taken.

(2.) Illustration (i) of Section 56 of the Specific Relief Act provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The Plaintiff being out of possession must make relief for possession and cannot, in view of illustration (i) to Section 56 of the Specific Relief Act make relief for injunction alone. Order II, Rule 1 of the Code of Civil Procedure provides that every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Order II Rule 2 then inter alia, provides that every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; and 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. It further provides that 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. The object of Rules 1 and 2 is to prevent multiplicity of suits. The question which has got to be considered in the present case is whether a court is entitled suo motu to direct a Plaintiff to make a relief upon the same cause of action which the Plaintiff omits to include in his plaint or intentionally relinquishes. It cannot be disputed that when, as in the present case, the Plaintiff was oat of possession, she should have made relief for possession and not a relief for injunction alone. Under such circumstances the procedure which the Plaintiff should have adopted was to apply to the court when the suit was pending that leave should be granted to her to sue for relief for possession later on. The question whether leave for particular purposes should be obtained before the institution of the suit or should be obtained later on was considered in a case decided by the Madras High Court in Venkaya v. Venkaya Rao, 1938 AIR(Mad) 979. It was held in that case that in cases not governed by any definite statutory time limit leave may be granted even during the pendency of the suit. It may be that as a matter of prudence a Plaintiff will do well to make the application for leave even before he files his plaint or at least along with the plaint, because he will otherwise be running the risk of the application being refused when it will be too late to set matters right. But that is different from saying that the court has no power to grant leave unless the application is made before the institution of the suit or along with the presentation of the plaint. The court when called upon to deal with such an application will ordinarily have to consider whether the grant of leave to reserve certain remedies will in the circumstances be appropriate in the sense that it will not give an unfair advantage to the Plaintiff or impose an unfair burden on the Defendant. A question of this kind can as well be dealt with by the court during the pendency of the suit as before its institution.

(3.) In the present case, however, the Plaintiff did not apply for the leave of the court under Order II Rule 2(3) of the Code of Civil Procedure either in the court of first instance or in the lower appellate court. Under such circumstances the court cannot by adopting an expedient under the provisions of Section 151 of the Code of Civil Procedure grant to the: Plaintiff something which the Plaintiff could not on account of her own inaction seek under the provisions of Order II Rule 2. In this view of the matter the order of remand with respect to the portion of the land specified as XEFY to which alone the present appeal has been confined cannot be supported The appeal is therefore allowed, the order of remand with respect to the claim in relation to the land marked XEFY in the plaint is sea aside and the suit in relation to that land is dismissed with half costs to the Defendant Appellant in both the courts.