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1999 Supreme(MP) 845
High Court Of Madhya Pradesh
V. K. AGRAWAL
AYODHYA PRASAD - Appellant
Versus
CHHEDILAL - Respondents
FIRST APPEAL 146 Of 1996
Decided On : 11/05/1999
Alok Aradhe, PRASHANT MISHRA
A plaintiff cannot subsequently sue for a portion of their claim that they have omitted to sue for or intentionally relinquished in an earlier suit based on the same cause of action.
Headnote:
ORDER 2, RULE 2, CPC - WRONGFUL DETENTION OF BORING MACHINE - SUBSEQUENT SUIT FOR DAMAGES AND PRICE OF MACHINE - BARRED UNDER ORDER 2, RULE 2, CPC - CAUSE OF ACTION SAME IN BOTH SUITS - RELIEF OF RETURN OF MACHINE OR PRICE THEREOF DEEMED RELINQUISHED IN EARLIER SUIT - SUBSEQUENT SUIT FOR DAMAGES ALSO BARRED.
Fact of the Case:
Plaintiff filed a suit for damages and the price of a boring machine, alleging wrongful detention by the defendant. The plaintiff had earlier filed a suit for damages for one day's wrongful detention of the machine, which was decreed. The defendant argued that the subsequent suit was barred under Order 2, Rule 2, CPC, as the plaintiff had relinquished the relief of return of the machine or its price in the earlier suit.
Finding of the Court:
The court held that the subsequent suit was barred under Order 2, Rule 2, CPC. The cause of action in both suits was the wrongful detention of the machine, and the plaintiff had omitted to claim the relief of return of the machine or its price in the earlier suit. Therefore, that relief was deemed to have been relinquished, and the subsequent suit for damages was also barred.
Issues: Whether the subsequent suit was barred under Order 2, Rule 2, CPC, as the plaintiff had relinquished the relief of return of the machine or its price in the earlier suit.
Ratio Decidendi: Order 2, Rule 2, CPC requires a plaintiff to include the whole of the claim which they are entitled to make in respect of a cause of action in a single suit. If a plaintiff omits to sue for or intentionally relinquishes any portion of their claim, they cannot subsequently sue for that portion. In this case, the cause of action in both suits was the wrongful detention of the machine. The plaintiff had omitted to claim the relief of return of the machine or its price in the earlier suit, and therefore that relief was deemed to have been relinquished. Consequently, the subsequent suit for damages was also barred.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs.
( 1 ) THE plaintiff/appellant by this first appeal has challenged the order dated 18-9-1995, in Civil Suit No. 13-B/93, by District Judge, Raigarh, whereby the suit of the plaintiff/appellant for recovery of amount of damages and the price of boring machine was dismissed, as barred under Order 2, Rule 2 of CPC.
( 2 ) UNDISPUTABLY, the plaintiff/appellant had executed the work of boring a tube-well by his boring machine in the 'poha' mill of the defendant/respondent. According to the plaintiff/appellant after boring for about 120 ft. , the work had to be abandoned for want of adequate water supply. The defendant/respondent had agreed to pay boring charges @ Rs. 20. 00 per foot. The plaintiff/appellant demanded from the defendant/respondent the amount for the work executed by him as per the above agreement between the parties. However, the defendant/respondent did not pay the said charges and also did not permit the plaintiff/appellant to take away his boring machine. Therefore, the plaintiff/appellant served a notice dated 22-1-1986 on the respondent/defendant. Thereafter, he filed a suit registered as Civil Suit No. 17-A/86 (hereinafter referred to as earlier suit for convenience), claiming damages amounting to Rs. 50. 00 for wrongful retention of the boring machine for a day i. e. for 23-1-1986. The said suit was decreed and damages was granted to him. The appeal against the said decree was also unsuccessful.
( 3 ) SUBSEQUENTLY another suit registered as Civil Suit No. 13-B/93, was filed by the plaintiff/appellant in the Court of District Judge claiming the amount of damages for three years, prior to the filing of the suit amounting to Rs. 54,750/- for wrongful retention of boring machine, as also Rs. 50,000/- towards the cost of the boring machine, wrongfully retained by the defendant/respondent.
( 4 ) THE suit was resisted by the defendant/respondent inter alia on the ground that as the plaintiff/appellant in the earlier Civil Suit No. 17-A/86 did not claim the relief of return of boring machine or its price. It would be deemed that he has relinquished and given up that relief. Therefore, the subsequent suit claiming such a relief was barred under Order 2, Rule 2, CPC.
( 5 ) THE learned trial Court by the impugned order has upheld the objection of the defendant/respondent as above and held that subsequent suit is barred under Order 2, Rule 2 of CPC. It was accordingly dismissed.
( 6 ) THE learned counsel for the plaintiff/appellant has urged that the earlier suit was filed claiming damages for one day i. e. for 23-1-86 only, while the present suit C. S. No. 13-B/93, was for damages for the subsequent period which was not barred under Order 2, Rule 2, CPC as there was continuing cause of action on account of wrongful detention of the boring machine. It was therefore submitted that as the causes of action of two suits were different, therefore, subsequent suit was not barred under Order 2, Rule 2, CPC. Reliance has been placed by the learned counsel for the appellant on M/s. Bengal Waterprooflimited v. M/s. Bombay Waterproof Manufacturing Company, AIR 1997 SC 1398 and Sumerchand Hukum-chand v. Hukumchand Mathurdas, 1965 MPLJ 829 : AIR 1965 MP 177.
( 7 ) AS against this, the learned counsel for the respondent has urged that the earlier suit was also based on the same cause of action. In both the suits damages for wrongful detention of the boring machine was claimed. The earlier suit C. S. 17-A/91 in which damages for a day i. e. for 23-1-86 was claimed, was based on the averment that the machine was wrongfully detained, causing loss to the plaintiff/appellant. Similarly, the present suit registered as Civil Suit No. 13-B/93 was also based on the similar averments. However, in the earlier suit the relief of return of boring machine or its price though could be prayed for, was not claimed. Therefore, the claim regarding that relief in the subsequent suit No. 13-B/93, would be barred under Order 2, Rule 2, CPC, a
