Madras High Court
K.Kunhammad vs T.R.Kanniappa Naidu on 28 October, 2021
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
C.R.P.No.3216 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.(PD).No.3216 of 2019
and
C.M.P.Nos.3895 & 20951 of 2019
K.Kunhammad .. Petitioner
Versus
1.T.R.Kanniappa Naidu
2.Alaiyappan
3.Raja
4.Ganesh
5.Narayana Bhoopathy
6.P.Balakrishnan
7.S.Indira
8.P.Ravi
9.Shanthi
10.Kandoth Ahmmed Haji
11.Mayan alias Mayal
12.Ashraf
13.Kandoth Abdul Gafoor
14.Jafar Kandoth
15.Harris Koodathan Kandiyil
16.Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Malligai,
Egmore. Chennai-8.
Rep. By its Member Secretary.
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C.R.P.No.3216 of 2019
17.Municipal Corporation of Chennai,
Rippon Buildings,
Chennai-3.
Rep. By its Commissioner.
18.Tamil Nadu Electricity Board,
NPKRR Maaligai,
No.800, Anna Salai,
Chennai – 600 002.
Rep by its Chairman.
19.The Inspector of Police,
Thousand Lights Police Station,
Thousand Lights, Chennai. .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the order dated 27.08.2019 passed in I.A.No.57 of
2010 in O.S.No.7504 of 2010 on the file of the learned XVIII Additional
Session Judge, City Civil Court, Chennai.
For Petitioner : Mr.B.Mohan
For Respondents :
For R1 to R4 : M/s.Chennai Law Association
For R5 to R9 : No appearance
For R10 to R15 : Mr.V.Ezhilan
For R16 : Mr.Karthik Rajan
For R17 : Mrs.Karthikaa Ashok
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C.R.P.No.3216 of 2019
ORDER
The petitioner is challenging the order passed by the learned XVIII Additional Session Judge, City Civil Court, Chennai, dated 27.08.2019 in I.A.No.57 of 2010 in O.S.No.7504 of 2010.
2. Heard both sides.
3. The revision petitioner herein is the 12th defendant in the suit in O.S.No.7504 of 2010 on the file of XVIII Additional City Civil Court, Chennai, wherein the plaintiffs / respondents 1 to 4 filed a suit for declaration, mandatory injunction, permanent injunction and other consequential reliefs against the defendants.
4. At the time of filing of the suit, the plaintiffs also filed an Interlocutory application in I.A.No.57 of 2010 in O.S.No.7504 of 2010 under Order II Rule 2 of CPC seeking permission of the Court to file a separate suit for possession, in respect of plaint 'A' and 'B' schedule properties against the defendants 1 to 12. At the time of filing of IA, tentatively, the Court permitted Page No.3/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 the said relief. Thereafter notice was issued to the defendants/ respondents concerned.
5. In the original suit, the revision petitioner contested the suit, after closure of the evidence. At the time of arguments, he came to know about the alleged permission given in I.A.No.57 of 2010 without his knowledge. On hearing his objection, the matter was re-opened and time was granted to file his objection in I.A.No.57 of 2010. On hearing the objection, the learned trial Judge allowed the said I.A. and held that the plaintiffs are entitled to such relief. Aggrieved by the said order, the 12th defendant / revision petitioner has preferred this revision.
6. At the time of arguments, the learned counsel for the revision petitioner submitted that the reasons stated by the plaintiffs in IA.No.57 of 2010, that they are not having sufficient money to initiate the relief with regard to the possession of the property which itself clearly indicated that they are indigent person, for that, they are entitled to invoke Order II Rule 2 of CPC. But, without considering this legal aspect, the learned trial Judge gave a Page No.4/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 finding. Hence, he prayed to set aside the order passed by the learned trial Judge.
7. The learned counsel appearing for the respondents submitted that the plaintiffs are entitled to invoke Order II Rule 2 of CPC application at the time of filing of the suit by observing its rights, and to seek certain relief. Subsequently, with the leave of the Court, as he was aged, and he proposed to take possession of the property, he filed that application. Furthermore, he also contended that the said application is between the plaintiffs and the Court, which cannot be interfered by the defendants. Considering the submissions made by both sides, the learned trial Judge has rightly allowed the application. Hence, he prayed for dismissal of the revision as no merits.
8. Order II Rule 2 reads as follows:
“2. Suit to include the whole claim – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of Page No.5/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 any Court.
(2)Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”
9. The said provision clearly indicates that the plaintiffs may relinquish any portion of their claim, but, within the jurisdiction of any Court with the leave of the Court. Now as per the affidavit averments, the plaintiffs raised their claim for recovery of possession with the permission of the Court. If they are not having sufficient means, as admitted by the plaintiffs, it could be objected by the defendants at the time of filing of the subsequent suit, if any, by the plaintiffs.
10. But the learned counsel for the revision petitioner would vehemently contend that the plaintiffs are not entitled to file such a leave Page No.6/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 application. But, due to economic condition, they are not able to seek relief of recovery of possession by filing a separate Court, for the reason that they are the person of no means, for that, they are entitled to invoke Order II Rule 2 CPC by filing this application. Though the objection raised by the revision petitioner is sustainable, the plaintiffs are entitled to invoke Order II Rule 2 CPC to seek certain reliefs. So leave was granted only for certain reliefs, like recovery of possession, which can be claimed by the plaintiffs. Subsequently, with regard to the reasons stated by the plaintiffs mentioning economic condition, if the plaintiffs files such a suit in future, they have to file a petition along with the suit to declare him as indigent person as per Order 33 of CPC.
11. Considering the objection raised by the revision petitioner now the said suit has become part-heard and evidence were already over at the time of arguments, this application was heard by the learned trial Judge.
12. As per Order 2 Rule 2, the plaintiffs are entitled to seek relief to file a suit in future with regard to certain reliefs with the permission of the Court. Hence, order passed by the learned trial Judge is maintainable. Accordingly, Page No.7/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 the Revision Petition is dismissed. The suit is directed to be disposed within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.
28.10.2021 Index : Yes / No Speaking Order:Yes/No rri To
1.The No.XVII Additional Session Judge, City Civil Court, Chennai.
2.The Section Officer, V.R.Section, High Court of Madras.
Page No.8/9 https://www.mhc.tn.gov.in/judis C.R.P.No.3216 of 2019 T.V.THAMILSELVI, J.
rri C.R.P.(PD).No.3216 of 2019 and C.M.P.Nos.3895 & 20951 of 2019 28.10.2021 Page No.9/9 https://www.mhc.tn.gov.in/judis