UTTAM SINGH THAKUR Vs. NAGAR PALIKA PARISHAD

JUDGEMENT

(1.) THIS revision application has been filed against the order dated 25.08.2009 passed by learned Court below in an unregistered case whereby the suit of the plaintiff-applicant in respect to the payment of interest has been dismissed holding that same is not maintainable.

(2.) THE contention of learned counsel for the applicant is that a decree for realization of Rs.7,22,514 has been granted in favour of plaintiff-applicant by learned Civil Judge Class-I Betul in Civil Suit No. 49-A/2005 decided on 25.01.2006. The said Court declared that plaintiff is entitled to realize the amount in terms of Clause (5), (7), (11-C) and (13) of the agreement. According to plaintiff, the amount comes to Rs.7,22,514 and for which execution has been filed by the plaintiff for its realization. However, the present suit has been filed for realization of interest accrued upon that amount which has not been decreed by the said Court in the said civil suit. According to learned counsel such a suit is not barred under the law and in support of his contention learned counsel has placed heavy reliance upon the decision of Single Bench of this Court in N.Ajit Kumar vs. Hanuman Prasad 2006(1) MPLJ 140.

(3.) INDEED the present suit is barred by the provisions of Order II Rule 2 CPC. Subrule (2) to Rule 2 of Order II is very clear and according to this provision where 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. Since no decree was passed in respect to payment of rent as a matter of fact the said judgment and decree dated 25.08.2009 should have been assailed by filing first appeal claiming the interest. It appears that no such interest has been claimed in the plaint of earlier suit. Looking to the mandatory provisions envisaged under Order II Rule 2 CPC, the present suit has been rightly held to be not maintainable. The decision of learned Single Bench in N. Ajit Kumar (supra) is not applicable in the case at hand because in that suit a sum of Rs.17,250 was claimed for illegal occupation of the property but the said suit was dismissed and it was found that damages are not proved. The period was for 2.3.1982 to 2.7.1985. However, subsequently when the illegal occupation was not released the plaintiff of that suit filed a fresh suit claiming damages for the period 21.02.1992 to 20.09.1995 and in that situation it was held by learned Single Bench that recurring cause of action was accruing to the plaintiff and therefore the suit was found to be maintainable. However, in the present case the facts are altogether different. No decree for interest has been passed by Trial Court in the earlier suit and learned counsel is not in a position to state that any interest was ever claimed by plaintiff in earlier suit. According to me, the present suit is barred by the provisions of Order II Rule 2 CPC. No ground is made out warranting interference in this revision application.