Delhi High Court
Vineeta Sharma vs Rohit Sripat Singh on 24 May, 2000
Equivalent citations: 2000(56)DRJ481, 2000 A I H C 3456, (2000) 87 DLT 418
Author: Vikramajit Sen
Bench: Vikramajit Sen
ORDER Vikramajit Sen, J.
1. The reliefs prayed for in the present suit for partition and rendition of accounts is in respect of Apartment No. L-6, (First Floor), Chitranjan Park, New Delhi and Apartment No. 707, Vardhman Apartments, Mayur Vihar Extension, New Delhi. A permanent injunction restraining the Defendant from transferring, alienating, disposing off or encumbering them the suit property in any manner whatsoever has been prayed for. Because of the view taken by me. do not propose to go into the facts in detail. Suffice it to say that the suit has been instituted because of a marital discord between the parties. An interim injunction was granted on 25.2.1997 when the suit came up for hearing on the first occasion. As recorded in the order dated 8.8.1997 there is no dispute between the parties that the property is in their joint names. The Defendant has filed an application for vacation of the ex parte ad interim injunction under Order XXXIX, Rule 4 of the Code of Civil Procedure. Various grounds have been raised including an objection that the suit is not maintainable because of the previous filing and pending of two suits in the District Court, bearing No. S.57/1997 and S.58/1997. Certified copies of the Plaints in both suits have been filed by the Defendant along with the application. The prayers in S. No. 57/1997, substantially, was in respect of the passing of a decree restraining the tenant from making any further payment to he defendant and to pay the entire rent to the Plaintiff for the remaining period of lease or till the Plaintiff had realised her share, being half of the rent that had accrued. It is further prayed that the present Defendant be restrained from renewing the Lease Deed or to enter into any other kind of transaction (presumably in respect of the property in suit). The same reliefs have been prayed for in the second suit bearing No. 58/1997, though the tenant is different.
2. The Defendant immediately filed Replication of the Plaint. Various grounds were raised in support to this application,. The Defendant had also filed applications under Order XXXIX, Rule 4 of the Code of Civil Procedure in both those suits. In reply to which it was stated by the Plaintiff that :
"That the Hon'ble High Court in Suit No. 421/1997 filed by the Plaintiff against the Defendant No. 2 herein for partition, rendition of accounts etc. has on 25.2.1997 already been pleased to pass ad-interim orders restraining the Defendant No. 2, interalia, substantially granting the relief claimed for in this petition including in respect of the suit premises. A copy of those orders is enclosed herewith as Annexure herewith.
That since the Hon'ble High Court is seized of the issue of the grant of injunction against the Defendant No. 2 herein future transactions in respect of the suit premises, the matter need no more be agitated at this Hon'ble Court for the same purpose."
3. These suits were dismissed as withdrawn by Shri K. S. Mohi, Sub Judge, Delhi on 22.8.1997. It is not in dispute that while dismissing the suits the Plaintiff neither prayed for nor obtained the leave of the Court to file a fresh suit on the same cause of action. Order II Rule 2 which reads as under; therefore comes into consideration.
"Suit to include the whole claim.
2 (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 any court.
Relinquishment of part of claim: (2) 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.
Omission to sue for one of several reliefs : (3) 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.
Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
4. The question that arises is whether the cause of action and/or the claim on which the present suit is predicated had arisen at the time of the filing of the two suits in the District Court. Both the suits 57/1997 and 58/1997 appear to have been filed at the same time and the prescription contained in Order II, Rule 2 may also be applicable to the second suit, i.e. S. 58/1997. Into this interesting legal nodes I shall not venture since what is in contest at the present moment is the maintainability of the present suit. Learned Counsel for the Defendant/applicant had relied on the decision of the Supreme Court in Surguja Transport Service State Transport, in which the Court applied the rule of Public Policy as contained in Order XXIII, Rule 1 of the Code of Civil Procedure even to Writ Petitions filed under Article 226 of the Constitution of India. It was held that a Petitioner, after withdrawing a Writ Petition filed by him in the High Court under Article 226 without the permission to institute a fresh petition, cannot file a fresh Writ Petition in respect of the same cause of action. Presumably, the learned Counsel for the Defendant did not cite any decision where the rule was applied to suits because of the perspicuous in Order II Rule 2. Learned counsel for the Plaintiff had submitted that the cause of action pleaded in the two withdrawn suits were stated to have finally arisen on 8.1.1997 when Defendant No.1 (tenant) refused to take delivery of the legal notice sent to him. The cause of action in the present suit is stated to have arisen finally on 19.1.1997 when the Defendant allegedly refused to accept the legal notice sent by the Plaintiff. In para 10 it is further stated that " the cause of action is continuing one and is still subsisting". I am unable to accept the arguments of learned Counsel for the Plaintiff that the present suit is not barred by the operation of Order II Rule 2 of the C.P.C. When the two suits bearing No. S. 57/1997 and S. 58/1997 were filed on 6.2.1997 the parties were entrenched in their matrimonial differences. It is quite clear that the Plaintiff was aggrieved by the fact that she was not receiving what she considered to be her due share of the income from the property. In the present suit there is a prayer of rendition of accounts on this very basis. The allegations in those proceedings were that the Plaintiff had been rendered entirely homeless. Learned Counsel for the Defendant/applicant had submitted that no ex parte ad interim injunction had been passed by Shri K.S. Mohi, Sub Judge, Delhi and for this reason the Plaintiff had with obvious mala fides, suppressing the factum of the pendency of those two suits in that Court. This suit was filed less than a month after the filing of the two previous suits. The basis of all three suits is identical, i.e. that the husband (Defendant) had rendered the wife (Plaintiff) destitute and homeless and was denying her shares. If the relief prayed for in the two suits was to be granted the central issue to be proved by the Plaintiff would be her joint ownership of the properties in question. Prayer "C" in the present suit, viz. the issuance of the permanent injunction and prayer "B" for the rendition of accounts would definitely have arisen at the time of filing of the two suits in the District Court. The purpose of Order II Rule 2 is not an empty and meaningless procedural technicality. It is calculated to combat a multiplicity of proceedings. The Plaintiff ought to have filed the entire relief in one court and in the same proceedings. Both the tenants could have been employed as Defendants in one suit since they were only incidentally involved in the legal wrangle between the present parties pertaining to the ownership of the suit properties. The present suit is, therefore, liable to be rejected on this ground. The effect would be that a prima facie case for the issuance of an injunction in favour of the Plaintiff would be missing.
5. Order XXIII, Rule 1 reads as follows :
"withdrawal of suit or abandonment of part of claim:
1. (1) At any time after the institution of a suit, the Plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 or Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied :-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim.
6. If this Rule is applied to the facts of the present case it would clearly bar the granting of the injunction prayed for in the previous proceedings in the District Court. In effect the injunction prayed for before this court is the same as what was asked for before the District Court. There was no change in circumstances between 7.2.1997, when the suits were filed in the Lower Court and 20.2.1997 when the present plaint was signed and verified. The Plaintiff cannot allowed to embark on forum shopping. The only manner in which she could have overcome this impediment would have been to make a specific prayer for withdrawal of the previously filed suits in the District court with the grant of liberty to agitate the same relief in the subsequent suit. This has not been done.
7. Injector relief is essentially equitable and it is for this reason that it has been universally held that persons seeking equity should not themselves be its transgressors. Alternatively expressed it means that the Plaintiff must approach the Court with clean hands. No explanation has been given as to why details of the previously instituted suits were withheld from this Court either in the plaint itself or at the time when the ex parte ad interim relief was asked for. For all these reasons, I am of the view that the Plaintiff is disentitled for obtaining any discretionary relief from the court. The application (I.A. 5687/1997) is allowed.
8. Keeping in view the allegations that the Plaintiff wife has been rendered destitute and the submission that she is in a state of penury, I am not awarding any costs against her although the manner in which the litigation has been conducted calls for the imposition of exemplary costs.
I.A. No. 1739/1997.
9. I have accepted the Defendant's application under Order XXXIX, Rule 2 and for the same reasons this application is liable to be dismissed.
Dismissed.
I.A. No. 2752/1997.
10. The pleadings have already been completed. This application is infructuous and is dismissed as such.
S. No. 421/1998.
11. Re-notify on 18th August, 2000 on which date the arguments on the maintainability of the present suit shall be heard.