Indian Kanoon - Search engine for Indian Law

28. It remains to deal with the argument that the suit, so far as part one of the fishery is concerned, is barred under Order II, Rule 2 of the C.P.C. The rule in question lays down that every Suit shall include tin whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and that, where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, ho shall not afterwards sue in respect of the portion so omitted or relinquished. It is argued on behalf of the respondents that when the plaintiffs brought the suit of 19 LO they ought to have included their claim relating to the size of the nets, and that as they did not do so, they must be held to have relinquished it and cannot be now permitted to sue for it. The learned District Judge has given effect to this contention, but, in my opinion, he is in error. The plaintiffs, as the trial Court pointed out, repeated in Suit No. 324 the whole of their allegations made before Magistrate, viz., their right to fish all the year round with big nets and defendants' rights to catch fish with small nets during their portion of the year, and there was no reason, therefore, for asking for a negative declaration regarding the big nets of the defendants, as they had themselves set up a claim of right to fishing with big nets all the year round. In other words, the nature of the claim set up by them rendered it unnecessary that they should ask for any such negative relief. In my judgment, therefore, the argument as to relinquishment is without substance.