Point of Law: Order 2, Rule 2 of CPC, which reads as relinquishment of part of claim.

ORDER :

These two revision petitions are filed by the plaintiff and the defendant, respectively, challenging the finding of the Trial Court on point Nos.1 and 2, wherein held that the jural relationship between the plaintiff and the defendant and also dismissing the suit as barred by Order 2, Rule 2 of CPC vide order dated 16.07.2016 passed in S.C.No.15167/2015 on the file of XV Addl. Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH-19).

2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that the defendant is a tenant in respect of the petition schedule premises on a monthly rent of Rs.300/-. Earlier suit was filed for an ejectment, the same was numbered as S.C.No.15598/2011 and it was decreed. Aggrieved by the said order, the review petition was filed in Misc. Petition No.15012/2013, which was allowed and the decree of ejectment was set aside. Hence, the plaintiff has issued termination of tenancy notice dated 22.01.2015 calling upon the defendant to quit and deliver the vacant possession of the suit schedule premises within the stipulated time. The defendant gave an untenable reply. Hence, he was constrained to file a suit.

4. After issuance of summons, the defendant has appeared and filed the written statement contending that the suit itself is not maintainable. It is contended that he had constructed the house and he was in peaceful possession of the suit schedule property, and he was paying the amount towards expenses of the Pooja of the temple and not paying any rent. It is also contended that his father was in possession from 85 years back and his father was in possession by the then Dharmakartha Late Gadi Cheluvaraya Shetty and he was collecting Rs.2/-per month towards expenses of pooja in the Sannidhi Temple. His father had enjoyed the same by constructing a house and shop in the suit schedule property. After the death of his father, he has been enjoying the peaceful possession with his family as the legal heir and owner of the schedule property. There is no documentary proof with regard to the tenancy and he had renovated the building by spending more than Rs.3 Lakhs and also spent an amount of Rs.5 Lakhs for construction of the collapsed portion of the building. There was an increase of amount of Rs.2/-to Rs.70/-and thereafter Rs.300/-for pooja expenses but not as a rent and for cleaning, painting and other works every year he had spent Rs.25,000/-. It is also his contention that the plaintiff is claiming to be a trustee and he has not obtained any permission under Section 92 of CPC, which is mandatory. It is also admitted the earlier proceedings and also allowing of the misc. petition. It is also contended that in view of the Order 2, Rule 2 of CPC, the plaintiff has precluded for filing second suit on the same cause of action without leave of the Court and also in view of Section 11 of CPC res judicata will apply to the present suit. Hence, prayed for dismissal of the suit.

5. The plaintiff in order to prove his case examined himself as P.W.1 and got marked the documents as Exs.P1 to P6. On the other hand, the defendant has also got examined himself as D.W.1 and got marked the documents as Exs.D1 to D10. The Trial Court having considered the pleadings of the parties formulated the points that whether the plaintiff proves that there is jural relationship between the plaintiff and the defendant, whether the defendant proves that the suit is barred by Order 2, Rule 2 of CPC and whether the plaintiff is entitled for the relief. The Trial Court answered point Nos.1 and 2 as affirmative, in coming to the conclusion that the suit is barred by Order 2, Rule 2 of CPC. Hence, these two revision petitions are filed by the plaintiff as well as the defendant, respectively.

6. The plaintiff in CRP No.295/2016, contended that the Trial Court while answering