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Judgment
S. Ashok Kumar, J.—The plaintiff who lost before both the courts below has preferred this second appeal.
The plaintiff filed the money suit for claiming the sum of Rs. 2408/- being the balance amount lying in the court deposit to the credit of O.S. No.
1001/87, deposited by the second defendant LIC. According to the plaintiff, on the death of her son Ponnurangam, the first plaintiff''s husband the
second defendant has deposited Rs. 21,000/- in the court deposit after paying a sum of Rs. 13,716/- to the first defendant-wife. In the suit filed
earlier in O.S. No. 1001/87, the court has passed a decree for a sum of Rs. 17,408/- in favour of the plaintiff. But the plaintiff has paid court fees
only for a sum of Rs. 15,000/- because of the pecuniary jurisdiction is limited to such amount and since the plaintiff had reserved her right to sue in
respect of other amounts due, files the present suit for the balance decree amount of Rs. 2,408/-.
The defence put forward by the first defendant is that the plaintiff is not entitled to receive the balance decree amount of Rs. 2,408/- since the
suit itself is hit by Order 2 Rule 2 CPC. The plaintiff having restricted her relief only with respect to Rs. 15,000/- and having paid the court fee only
for such claim, she is barred from claiming the said sum by filing a subsequent suit.
On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and
documentary, the trial court dismissed the suit. On appeal, by the plaintiff, the first appellate court also concurred with the findings of the trial court
and dismissed the appeal. As against the concurrent findings of the courts below, the plaintiff has preferred this Second Appeal.
The following substantial questions of law were framed at the time of admission of the Second Appeal:-
(i) Whether the lower appellate court is correct in law in holding that the present suit is barred by Order 2 Rule 2 of Civil Procedure Code?
(ii) Whether the lower appellate court is right in not applying the principles of natural justice and equity?
Learned counsel for the appellant/plaintiff contended that the plaintiff has reserved her right in Paragraph 6 of the plaint in O.S.No:1001/87 and
both the courts have wrongly dismissed the suit invoking Order 2 Rule 2 CPC, without applying the principles of natural justice and law of equity,
by taking into consideration of the pathetic condition of the aged plaintiff who is the mother-in-law of the first defendant.
On the other hand, learned Counsel for the first defendant/respondent would contend that the reservation to claim the dues by the plaintiff in the
earlier suit is with respect to amounts due to societies and movable and immovable properties and not with respect to Insurance claims. When
once the plaintiff relinquished her right, she cannot claim the sum again in a subsequent fresh suit. Learned counsel for the first defendant contended
that both the courts have rightly held that the suit is barred by Order 2 Rule 2 CPC and no interference is called for with respect to the concurrent
findings of the courts below.
The factual matrix as to the relationship between the parties, viz.,the plaintiff s the mother-in-law and the first defendant is her daughter-in-law,
the total amount of Rs. 17,408/- towards the share of the plaintiff deposited by the LIC which is lying in court deposit and the decree granted by
the trial court in O.S. No. 1001/87 which has been confirmed by the first appellate court in A.S. No. 42/90 are not in dispute. Under Order 2,
Rule 2 CPC 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.
Though, as rightly decided by both the courts below too, the amount which was not claimed in the earlier suit could not be claimed
subsequently, as far as this case is concerned, the Insurance company is not having any objection and they have stated in their written statement
that they have deposited the entire amount. But unfortunately, due to pecuniary jurisdiction, the plaintiff has paid court fees only for a claim of Rs.
15,000/- in the earlier suit and therefore, the leaned Additional District Munsif has passed a decree for Rs. 15,000/- alone after finding that she is
entitled to Rs. 17,408/-, which has been upheld by the first appellate court in A.S. No. 42 of 1990. But the fact remains that the balance amount is
in court deposit. The plaintiff is none other than the mother-in-law of the first defendant-daughter-in-law. The plaintiff is 69 years old. Taking into
consideration of the peculiar facts and circumstances of the instant case, particularly the Insurance Company is not having any objection, I am of
the considered view that though, strictly speaking, under Order 2, Rule 2 CPC, no subsequent suit can be maintained for the same claim, as an
exceptional case, applying the principles of equity, since the Insurance Company has no objection, and if the suit claim is not granted to the plaintiff,
the money will be returned back to the LIC, as even the first defendant is not entitled to the said amount in excess of her share, as per the decree in
O.S. No. 1001/87, which has been upheld by the first appellate court, the relief claimed by the plaintiff can be granted.
In the instant case the first defendant/daughter-in-law of the plaintiff has already received her share and the second defendant/Insurance
Company has no objection for the balance amount of Rs. 2,408/- being given to the plaintiff. But the courts below dismissed the claim of the
plaintiff only on technical ground viz., applying Order 2, Rule 2 CPC pleaded by the first defendant. It is very unfortunate that the counsel for the
first respondent did not concede to the suggestion made by this Court to give consent to grant the meager suit claim of Rs. 2,408/- to the plaintiff
who is none other than the mother-in-law of the first defendant stating that they have raised the ground of Order 2 Rule 2 CPC in the written
statement. In this respect the decision reported in 1990 SC 1828 (Raj Kumar Rajindra Singh v. State of Himachal Pradesh), is applicable and the
relevant paragraphs are extracted below:-
It is well to remember that the CPC is a body of procedural law designed to facilitate justice and it should not be treated as an enactment
providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible....
In 1983 (II) MLJ 447 (Visalakshi v. Muthiah Chettiar), Justice S. Mohan (as His Lordship then was) has held as follows:-
5 ...But, what I find is that the question whether the judgment debtors had notice or not has to be essentially decided since it is well settled in law
that want of notice under Order 21, Rule 66, Civil Procedure Code, would vitiate the entire sale and the sale is rendered void. That question has
not been gone into and it was for that purpose the remit order was made, of course, after giving notice to the decree holder. Therefore, I do not
think that merely on the ground that an appeal did not lie, I should interfere. Instead, I should follow the salutary principle laid down in
Bhubaneswar Misra and Others Vs. Sakuntala Devi and Others, which is as follows:-
If the court finds that by exercising its power u/s 115, it is going to set aside a correct and logical order merely on the ground of lack of jurisdiction
and in its wake it brings into existence a wholly illegal and incorrect order, then it may refuse to exercise its revisional jurisdiction as that would be
giving effect to an illegal and incorrect order.
In H.S. Siddappa Vs. Lakshmamma and Another, it has been held as follows:- ""It is well established that the High Court is not bound to interfere
u/s 115, Civil Procedure Code, except in aid of justice. Thus, where the order of a Subordinate Court, has brought about a just result and where
the setting aside of that order would bring about an unjust result, the High Court would not exercise its discretion u/s 115, Civil Procedure Code,
and interfere with such order, even though the order suffers from an illegality or irregularity.
Shah Jagmohandas Purshottamdas and Another Vs. Jamnadas Vrajlal Gandhi and Others, lays down as follows:-
Section 115, Civil Procedure Code, vests discretionary power in the High Court. The High Court is not bound to interfere in revision in all cases in
which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material
irregularity in the exercise of jurisdiction. The High Court will exercise its reversional powers only in aid of justice and not merely go to give effect
to a technicality which will not further the ends of justice. If the interference of the High Court will bring about injustice or encourage abuse of the
process of the court or promote mere technicality without advancing the cause of justice or be futile, the High court will not interfere in revision,
even though the conditions specified in in any of the three clauses of the section are satisfied.
In the above circumstances, the judgment and decree of the first appellate court is set aside and the suit is allowed decreeing Rs. 2,408/- which
the plaintiff is entitled to as per the findings of the courts below in the earlier proceedings. Both the questions of law are answered accordingly. It is
also made clear that the relief is being granted to the plaintiff taking into consideration of the peculiar circumstances of the case and this may not be
cited as a precedent to other cases.
In the result, the Second Appeal is allowed setting aside the judgment and decree of the first appellate court and granting the suit claim as
prayed for. No costs.