Jaideep Bajaj vs Smt. Shashi Bajaj And Anr.
2006 Latest Caselaw 973 Del

JUDGMENT

Manju Goel, J.

1. This judgment is to decide two preliminary issues being issues Nos. 1 & 2 which are as under:

1) Whether the suit is barred under the provisions of Order 2 Rule 2 CPC? (OPP)

2) Whether the suit is barred under Order 23 Rule 1(4)(b) CPC/ (OPP)

2. Briefly stated the story of the plaintiff in the present suit is as under:

Narain Das was the owner of property No. E-129-130, Amar Colony, Lajpat Nagar-IV, New Delhi. He died leaving behind five sons, namely, Shri Jugal Kishore, Shri Arjun Dev Bajaj, Shri Bal Kishan Bajaj, Shri Bhim Sen Bajaj and Shri Dina Nath Bajaj. By virtue of a family settlement between the Shri Jugal Kishore, Shri Arjun Dev Bajaj and Shri Bal Kishan Bajaj, Shri Bal Kishan Bajaj became the exclusive owner of the entire ground floor of property No. E-130, Amar Colony as well as for the entire second floor, third floor and terrace of the property bearing No. E-129, Amar Colony. The plaintiff is the son and defendant Nos. 1 & 2 are the widow and daughter of Bal Kishan Bajaj, who died intestate on 1.10.1999. The properties left behind by him were this half share in the property E-129-130, Amar Colony as mentioned above, hereinafter referred to as the "suit property", and plot of land in Sushant Lok admeasuring 500 sq. yards apart from certain movable properties including fixed deposits. The plaintiff shared equally with the father in the ancestral property and thereafter on the death of Shri Bal Kishan Bajaj inherited the share of Shri Bal Kishan Bajaj. The plaintiff thus claims 4/6 share in the house and 1/3rd share in the plot of land. In order to bring piece and to resolve the differences that arose between the plaintiff and his mother, plaintiff along with defendant No. 2 executed a relinquishment deed dated 18.4.2002 in favor of defendant No. 1 in respect of the suit property. Defendant No. 1 coerced the plaintiff to sign a memorandum of understanding and it was agreed that the plaintiff would be compensated by payment of Rs. 56 lakhs and thereafter the plaintiff executed a relinquishment deed dated 18.4.2002. it was agreed between the parties that defendant No. 1 would fulfilll his undertaking and the terms of settlement and would pay to the plaintiff a sum of Rs. 56 lakhs towards the plaintiff's share in the suit property and the property at Sushant Lok. The document was executed on the undertaking of such payment. Defendant No. 1, however, did not make the payment agreed to by her. The plaintiff, however, was pressurized to vacate the property and the plaintiff apprehending threats shifted to the house of his father-in-law but remained in constructive possession of the house where his belongings were lying. In June, 2002, defendant No. 1 sent a cheque of Rs. 19.50 lakhs. Out of this amount, only Rs. 9.50 lakhs could be adjusted against the payment under the settlement as Rs. 10 lakhs was adjusted towards other outstanding dues. Since defendant No. 1 has committed breach of her undertaking to pay the agreed amount, the plaintiff is no more interested in recovering the settlement amount. The relinquishment deed was executed under undue influence of defendant No. 1. Since defendant No. 1 has not fulfillled her part of the undertaking the plaintiff now seeks to get his share of immovable property by a partition. The plaintiff prays for a decree for partition in respect of the immovable properties and a decree for declaration canceling the relinquishment deed dated 18.4.2002.

3. I will first deal with issue No. 1.

4. The plaintiff earlier instituted a suit for injunction. In the plaint it is contended that in order to protect his rights in respect of the suit property, the plaintiff filed a suit bearing No. C-39/2002 seeking protection against dispossession from the suit property. He contends further that since the suit was filed under great urgency and the same did not cover all the disputes between the parties and in particular the claim for partition, the plaintiff withdrew the suit and the prayer for withdrawal of the suit was allowed on 26.10.2002. The present suit is instituted on 2.12.2002. Defendant No. 1 has raised two objections, namely, (1) that the present suit is barred under Order 2 Rule 2 CPC as the first suit should have included all the reliefs available to the plaintiff at the time of the first suit and he cannot sue again for the claims he omitted in the first suit and (2) that having withdrawn the suit without leave to sue afresh, the present suit is barred by Order XXIII Rule 3 CPC.

5. Although the plaintiff has not disclosed the date of the filing of the first suit, it appears that the first suit was instituted sometime in June, 2002. The copy of the plaint placed on the record shows that the earlier suit was signed and verified on 17.6.2002. The earlier suit gives the whole story as given in the present suit. It mentions only a memorandum of understanding and makes no mention of the relinquishment deed which was a registered document. It alleges that defendant No. 1 failed to comply with the terms of the understanding but yet has been threatening to dispossess the plaintiff and was making a move to get her name mutated in the records of the Municipal Corporation. Accordingly the plaintiff made two prayers. The first was an injunction to restrain the defendant-Shashi Bajaj (defendant No. 1 in the present case) from dispossessing the plaintiff from the suit property at Amar Colony and to restrain the defendant from getting her name mutated in the records of the MCD.

6. Order 2 Rule 2 CPC provides as under:

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 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.

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.

7. Order 2 Rule 2 (2) CPC provides that if the plaintiff omits to sue in respect of any portion of his claim he shall not afterwards sue in respect of portion so omitted. The plaintiff's claim for partition basically depends upon his prayer for cancelling the relinquishment deed dated 18.4.2002. Unless the relinquishment deed is cancelled the plaintiff can lay no claim on any part of the suit property. Although cancellation of relinquishment deed is shown as prayer (b) and partition as prayer (a), the principal relief is cancellation of relinquishment deed. He did not make this claim in the previous suit. In the previous suit he alleged that the defendant had not fulfillled her part of the agreement leading to the relinquishment and is now proceeding to take possession and also to get her name mutated. The cause of action in the previous suit was in no way different from the cause of action in the present suit. Nothing has happened after the filing of that suit giving rise to any fresh grounds for filing a fresh suit. As mentioned earlier, the pleadings are almost identical but for the prayer. In the previous suit he only prayed for injunction against dispossession and against mutation. He could but omitted to pray for cancellation of the relinquishment deed and the memorandum of understanding which he is seeking now. In the earlier suit the plaintiff did not seek leave of the court to resolve his right to sue for the relief of cancellation of the relinquishment deed. His second prayer for partition also must fail because this prayer squarely depends upon the first prayer of cancellation of the deed. The suit, therefore, is utterly barred by Order 2 Rule 2 CPC and has to be dismissed on that ground.

8. The plaintiff withdrew the first suit without any leave of the court. Copy of the order of withdrawal of the earlier suit has been placed on the record. On 26.10.2002 the plaintiff made a statement that he wanted to withdraw the suit. He did not make any prayer for any leave for filing any fresh suit. He did not even disclose that the suit was being withdrawn only in order to file it afresh. The court, therefore, simply passed the order dismissing the suit as withdrawn. Order 23 Rule 1 (3) and (4) prescribes as under:

1. Withdrawal of suit or abandonment of part of claim.- (1) ...

(2) ...

(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 subject-matter of such suit or such part of the claim.

(4) Where the plaintiff-

(a) abandons any suit or part of claim under Sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

9. As the contents of the two plaints have been narrated above, the subject matter of the two suits is the same. The subject matter is the plaintiff's grievance in respect of relinquishment deed and the memorandum of understanding. According to him he executed the relinquishment deed on the understanding that defendant No. 1 will pay a sum of Rs. 56 lakhs and the defendant was trying to take advantage of the documents and was attempting to dispossess the plaintiff by getting her name mutated in the municipal records (the relinquishment deed on record does not mention any understanding of payment of any money). Since the subject matter of the two suits is the same and the first suit has been withdrawn without any leave to file a fresh suit on the same subject matter the present suit is also hit by Order 23 Rule 1 (4)(b) of CPC.

10. The plaintiff refers to a Division Bench judgment of this Court in the case of Inderpal Singh etc. v. Inder Kaur etc. reported as On a careful reading of this judgment I find that in that case the second suit was based not only on the cause of action of the previous suit which was a codicile of 14.4.1956 but also on another compromise that took place during the pendency of the first suit dated 3.1.1966. The facts of the present case are, therefore, not parallel to the case of Inderpal Singh (Supra). The other judgment cited in the case of Vallabh Das v. Dr. MadanLal and Ors. reported as has also no application in the present case since in that case while withdrawing the first suit liberty was obtained for presenting the second suit on the same subject matter.

11. Both the preliminary issues are decided against the plaintiff. This Court, therefore, has no option but to dismiss the suit. The suit is, therefore, dismissed with costs.