Mr. D. Madhusudhan v. Mr. D.M. Srinivas

THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Civil Revision Petition No.2745 of 2016 ORDER:

This revision, under Article 227 of the Constitution of India, is preferred against the docket order passed by the I Additional Chief Judge, City Civil Court, Secunderabad in O.S.S.R.No.2747 of 2016. In the said order the Court below noted that the Suit was filed with a petition under Order 2 Rule 2(3) CPC; it was desirable to consider the maintainability of the Suit subject to disposal of the petition under Order 2 Rule 2(3) CPC; and that the Suit should be put up after disposal of the application. The Suit in O.S.S.R.No.2747 of 2016 was filed seeking partition of the suit schedule properties by metes and bounds into two equal halves, and for delivery of each of the two shares to the plaintiff and the defendant respectively. The petitioner herein also sought future mesne profits of Rs.1,50,300/- per month towards the share of the plaintiff in rents and the profits of the School from the date of institution of the Suit till the date of realization from the defendant.

The petitioner herein filed an application, under Order 2 Rule 2(3) CPC, seeking permission of the Court to sue the defendant in a future Suit for the relief of recovery of Rs.1,21,00,000/-. The said petition was filed contending that the School, being a commercial premises, earns monthly rent of Rs.64,000/-; the income of the School was Rs.1,98,000/- per month; the half share of the petitioner accumulated to Rs.99,000/- per month; and the petitioner reserved his right to claim, against the defendant, the arrears of rent and profits in the school which accumulated to Rs.1,21,00,000/- as described in the earlier paragraphs of the petition.

Order 2 Rule 2(3) CPC relates to omission to sue for one of several reliefs, and stipulates 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. Under the explanation thereto, for the purposes of this rule, an obligation and a collateral security for its performance and successive claims arising under the same obligation shall

be deemed respectively to constitute but one cause of action. The mere fact that the petitioner herein has filed an application under Order 2 Rule 2(3) CPC did not justify the Court below refusing to even number the Suit filed for partition of the suit schedule properties. The application, under Order 2 Rule 2(3) CPC, was filed seeking leave of the Court to sue separately for the claim of Rs.1.21 Crores. If leave had not been sought, the petitioner would have been disentitled from claiming this relief later. The mere fact that such an application was filed does not justify refusal to number the Suit. The Court below shall number the Suit, if it is otherwise in order. Needless to state that the application filed by the petitioner, under Order 2 Rule 2(3) CPC, shall be examined on its own merits uninfluenced by any observations made in this Order.

The Civil Revision Petition is, accordingly, disposed of. The Miscellaneous Petitions, if any pending, shall also stand disposed of. No costs.

______________________________ (RAMESH RANGANATHAN, J) Date:24.06.2016.

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