K LINGAIAH Vs. KODANDARAMASWAMIVARI TEMPLE

JUDGEMENT

(1.) SRI Pedababu, learned counsel appearing for the appellant, rightly submits that the scope of Order 2 Rule 2. C.P.C. was lost sight of by the appe1late Admittedly the respondent instituted O.S. 119/79 on the file of the Principal District Munsif, kandukur for recovery of rents for the years 1974-75 and 1975-76. On the date of institution of the said suit rent for the year 1976-77 had already became due. The appellant must therefore be deemed to have relinquished his claim for rent for the year 1976-77. The illustration appended to Order 2 Rule 2, C.P.C. is on all fours. I must also observe that n K. Mangaraju vs. Venugopala Swamyvaru1 it was held that in a suit instituted for recovery of rent due for a certain dumber of years, non- inclusion of claim which had become due for any year at the time of institution of such a suit would bar institution of a fresh suit for recovery of rent for that particular year.

(2.) IT is true that the respondent could have reserved his right to recover rent for the year 1976-77 only with the leave of the court. Admittedly no such application for leave of the court was filed . leither along with the. plaint or at any time thereafter. No implied grant of leave of the court can be spelt out as the defect was not even pointed out by the office at the time the plaint was numbered. I therefore hold that the suit instituted by the respondent was barred under Order 2 Rule 2, C.P.C. I accordingly set aside the judgment and decree of the appellate court and restore that of the trial court. The second appeal is thus allowed. No costs.