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High Court Of Delhi
VAISH CO OPERATIVE ADARSH BANK LIMITED - Appellant
Versus
GEETANJALI DESPANDE - Respondent
First Appeal Order 180 of 2002
Decided On : 01/17/2003
Held:
A plea of bar under Order II Rule 2 CPC is maintainable only if the defendant makes out (i) that the cause of action of the second suit is the same on which the previous suit was based, (ii) that in respect of that cause of action, the plaintiff was entitled to more than one relief and (iii) that the plaintiff without leave obtained from the Court omitted to sue earlier for the relief for which the second suit is filed. Clearly, Order II Rule 2 enacts a rule barring a second suit in the situation indicated above. Identity of cause of action in the former and subsequent suits is essential before the bar contemplated under Order II Rule 2 is set to operate. Thus, where the claim or reliefs in the second suit are based on a distinct cause of action, Order II Rule 2 would have no application. Order II Rule 2 operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 is, thus, misconceived and hence negatived.
Order VI Rule 17 CPC enables the parties to a suit to amend their pleadings, if so felt necessary. It is an altogether different question if an application for amendment is ultimately to be allowed or rejected. There can be no estoppel against the statute and, therefore, the right of the respondent No. 1-plaintiff to seek amendment in her plaint cannot be taken away simply because her counsel made a statement to the said effect. The plea of estoppel raised by the appellant, thus, fails.
Misuser of premises in contravention of the terms and conditions of the perpetual lease deed, master plan and the provisions of Delhi Municipal Corporation Act gives rise to a continuing cause of action and there can, thus, be no question of limitation coming in the way. It is well open to the respondent No. 1-plaintiff to file a fresh suit seeking a decree of permanent injunction against the misuse of the suit premises by the appellant and respondents 2 & 3 on the basis of show-cause notice dated 11.9.2000 and if that be the case, no plea of limitation against the proposed amendment being granted is sustainable. In spite of respondent No. 1-plaintiff failing earlier to seek the relief against misuser, on the basis of the earlier two show-cause notices received prior to the institution of the suit, persistence with misuse would constitute a continuing cause of action. In the circumstances, action to seek the relief against misuse in the original plaint in spite of above stated two show-cause notices served on the respondent No. 1-plaintiff before in-stitution of the suit, cannot be held to dis-entitle the respondent No. 1-plaintiff to seek the proposed amendment. At best, the appellant can plead that the proposed amendment cannot relate back to the date of institution of the suit and the suit in relation thereto is to be taken to have been filed on the date of the amendment for the purpose of limitation.
As far as the objection pertaining to the jurisdictional aspect of this Court is con-cerned, that is a kind of plea which will be open to be raised by the appellant in its written statement to the amended plaint and the same is of no relevance in the context of the plea for amendment in the plaint.
Exercise of discretion by the learned Single Judge in allowing the proposed amend-ment, thus cannot be viewed as illegal, arbitrary or improper and, consequently, no interference with the impugned order is called for.
( 1 ) ON an application under Order VI Rule 17, CPC (IA. 930/2000) made by respondent No. 1-plaintiff seeking to amend the plaint in certain respects, an order dated 10. 4. 2002 came to be passed by the learned Single judge allowing the application. Material part of this order reads as under :
"the amendments sought for have become necessary in view of the recent final notice issued by the Delhi Development Authority alleging misuser of the property by the occupants of the said property. In my considered opinion, the amendment sought for is also necessary for effective determination of the his between the parties. I am also satisfied on the facts and circumstances of the case that the amendment, even if allowed, would not in any manner change the nature and character of the suit. In that view of the matter, the application is allowed. The amendment sought by the plaintiff shall be incorporated in the plaint. "
( 2 ) APPELLANT-DEFENDANT No. 3 feltaggrieved by the said order and, consequently, seeks to assail the same by way of present appeal.
( 3 ) DOES the exercise of discretion by the learned Single Judge in allowing the amendment sought to be incorporated in the plaint, calls for an interference? This is the short question posed for consideration, in this appeal. To facilitate better comprehension of the issue, material factual background leading to present impasse needs to be noticed first.
( 4 ) THE respondent No. 1-plaintiff is the owner of a four-storeyed building constructed on a commercial plot of land held on perpetual lease from the Delhi development Authority vide lease deed dated 30. 5. 1973. The property is situated at 36, Community Centre, Vasant Vihar, New Delhi. The entire construction on the said land was raised by respondent No. 2-defendant No. 1, in pursuance of an agreement dated 22. 5. 1981 between the respondent No. 1-plaintiff and her father late Col. U. B. Mallya on one hand, and the respondent No. 2-defendant No. 1 on the other. The building became ready for occupation by December, 1982. On completion, first, second and third floors were claimed by respondent No. 1-plaintiff leaving the basement, ground and mezzanine floors to be occupied by the respondent no. 2-defendant No. 1. Under the agreement dated 22. 5. 1981, the respondent no. 2-defendant No. 1 was required to discharge certain obligations, as specified therein, before the ownership of the said floors under her occupation could be transferred by the respondent No. 1-plaintiff in her favour by way of a registered sale deed. In the meanwhile, in July, 1983, the respondent No. 2-defendant No. 1 let out basement and ground floor to respondent No. 3-defendant No. 2 and mezzanine floor to the appellant-defendant No. 3, respectively.
( 5 ) RESPONDENT No. 2-defendant No. 1 allegedly failed to discharge her obligation in terms of the agreement in spite of being called upon to do so, and consequently, the respondent No. l plaintiff by a letter dated 22. 3. 1988, sent through her Advocate, rescinded the agreement with effect from the date of the letter. Respondent No. 1-plaintiff thereupon required the appellant as well as respondents 2 and 3 to vacate and hand over the possession of the basement, ground and mezzanine floors to her. The appellant and respondents 2 and 3, however, did not respond. While the appellant and respondent No. 3 continue to occupy the respective floors let out to them, the respondent No. 2-defendant No. 1 continues to collect the rent from them.
( 6 ) BY virtue of terms and conditions of the agreement dated 22. 5. 1981, appellant was under an obligation to abide by the terms and conditions of the perpetual lease deed in regard to user of the property and that way the property could be put to commercial use only. The respondent No. 2-defendant No. 1 is, however, alleged to have let out the aforesaid floors of the property to the appellant and respondent No. 3 for non-commercial and non-conforming use by them, thereby
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