9911796707
|
Home
Issues Involved:
1. Whether the plaintiff's second suit for ejectment was maintainable under Order 2, Rule 2 of the Civil Procedure Code. 2. Whether the cause of action for a suit for possession is distinct from the cause of action for arrears of rent and mesne profits. 3. Whether the leave of the court obtained by the plaintiff in the first suit to file a subsequent suit for ejectment affects the applicability of Order 2, Rule 2. Issue-wise Detailed Analysis: 1. Maintainability of the Second Suit under Order 2, Rule 2 of the Civil Procedure Code: The plaintiff, Atma Ram Srivastava, initially filed a suit for arrears of rent and mesne profits without claiming ejectment. He reserved his right to file a suit for ejectment and obtained leave from the court to do so. Subsequently, he filed a second suit for ejectment and mesne profits. The defendant objected, claiming the second suit was barred by Order 2, Rule 2. The court held that the second suit was not barred as the plaintiff had obtained leave to file a subsequent suit for ejectment, which is permissible under Order 2, Rule 2(3). The court emphasized that the plaintiff's omission to claim ejectment in the first suit with the court's leave allowed him to file the second suit, thereby making it maintainable. 2. Distinct Causes of Action for Possession and Arrears of Rent/Mesne Profits: The court analyzed whether the cause of action for a suit for possession is different from that for arrears of rent and mesne profits. The court referred to Order 2, Rule 4, which allows the joinder of claims for mesne profits or arrears of rent with a suit for recovery of immovable property. The court concluded that the cause of action for possession and mesne profits could be the same or distinct based on the facts of each case. The court disagreed with the Bombay High Court's view in Shankerlal v. Gangabisen, which held that claims for mesne profits and possession are always distinct. Instead, the court held that the claims could arise from the same cause of action, especially when based on a contract of lease. 3. Effect of Leave of the Court on Applicability of Order 2, Rule 2: The plaintiff had obtained leave of the court in the first suit to file a subsequent suit for ejectment. The court held that this leave was crucial in determining the applicability of Order 2, Rule 2. Since the plaintiff had expressly reserved his right to file a suit for ejectment and obtained the court's permission, the bar under Order 2, Rule 2 did not apply. The court emphasized that Order 2, Rule 2(3) allows a plaintiff to omit certain reliefs with the court's leave and file a subsequent suit for those omitted reliefs. Conclusion: The court answered the reference in the affirmative, holding that the plaintiff's second suit for ejectment was maintainable under Order 2, Rule 2 of the Civil Procedure Code. The court clarified that the cause of action for possession and mesne profits could be the same or distinct based on the facts and that the leave of the court obtained in the first suit allowed the plaintiff to file the second suit for ejectment without being barred by Order 2, Rule 2.
|
