The Court has the discretion to grant leave under Order 2, Rule 2(3) at a late stage of the pendency of the earlier suit, and the grant of leave should be fair to both parties.

Varadachariar, J.

1. In these revision petitions, the petitioner challenges the validity of four orders passed by the lower Court granting leave under Order 2, Rule 2(3), Civil Procedure Code, to the plaintiff to omit the claim for certain reliefs, in the circumstances to be presently mentioned. The orders have been questioned on two grounds (i) that the Court had no power to grant leave at the stage at which the applications were made, and (ii) that the circumstances alleged in the application for leave did not justify the grant of leave. The latter question relates to the exercise of the discretion which is vested by law in the lower Court and except in very exceptional circumstances, it is not proper for a Court of Revision to interfere with the way in which the lower Court has exercised its discretion. In the present case, I do not see sufficient reason for interfering with that exercise of discretion.

2. The question as to the power of the Court to grant leave at the stage at which the applications were made to it is not free from difficulty. The relevant facts are as follow. The plaintiff was entitled to recover a sum of Rs. 20,000 from the defendant in ten annual instalments of Rs. 2,000 each, the first instalment becoming payable on 31st March, 1929. As the first instalment was not paid on the due date, the plaintiff filed a suit for its recovery in April, 1929. Several defences were raised to that suit and the plaintiff apparently waited to see what the decision in that suit would be before he filed his next suit.

3. But it unfortunately happened that that suit remained pending for a number of years. In 1933 he filed his second suit O.S. No. 19 of 1933. By that time not only the second instalment but some later instalments had also fallen due. But O.S. No. 19 of 1933 sought the recovery of the second instalment only. O.S. No. 17 of 1934 was filed next year for the third instalment and two other suits, namely, O.S. No. 16 of 1935 and O.S. No. 13 of 1936 were filed for the recovery of the later instalment. Luckily or unluckily for the parties, all the four suits beginning from O.S. No. 19 of 1933 remain pending to this date. At some stage, the defendant raised the plea under Order 2, Rule 2, Civil Procedure Code, on the ground that as the claim for some of the later instalments had accrued due even before O.S. No. 19 of 1933 was filed, the later suits would be barred by the provisions of that rule. Similar pleas were sought to be raised in the other suits as well. It was at this stage that applications were filed by the plaintiff on 1st October, 1936, for grant of leave under Order 2. Rule 2(3).

4. On the facts above stated, Mr. Somayya, the learned Counsel for the defendant, contends that on a proper construction of Clause 3 of Order. 2, Rule. 2, leave should have been asked for before O.S. No. 19 of 1933 was actually filed or at least at the time the suit was instituted, and that the Court has no power at a late stage to grant such leave. I may mention here that the lower Court has taken care to leave an allied question open, namely, whether the leave granted under the orders now challenged will be effective to obviate the bar under Order. 2, Rule. 2, Civil Procedure Code, in respect of suits that have been already instituted. I do not therefore wish to say anything on that question; not do I wish to be understood as expressing any opinion on the question whether Order. 2, Rule. 2(3) applies to these suits or not. These are questions to be considered in the suits themselves. The only question dealt with by the Court below and proposed to be dealt with by me here is whether assuming that the bar under Order. 2, Rule. 2(3) would have applied to each of the later suits, the Court had power to grant leave under that clause at a late stage of the pendency of the earlier suit.

5. The learned Judge has laid some stress on the fact that in re-enacting this provision in the Code of 1908, the legislature has omitted certain