Sreedhara Rao N.G. vs Deputy Commissioner and Others

K.L. Manjunath, J.—Though the matter is listed for Preliminary Hearing, by consent the appeal is heard on merits.

The appellant being aggrieved by the dismissal of his writ petition by the learned Single Judge in W.P. No. 11171/2007 dated 01.02.2013 has preferred this appeal.

The appellant filed the writ petition to issue a direction to the respondents to form the 2nd Main Road in question with 15 mtrs. in width as per the norms and byelaws of the Town Planning and also to award Rs. 10,00,000/- as compensation on account of the mental agony caused to him due to misrepresentation and fraud played by the respondents. According to the petitioner, he was allotted Site No. 82, as a corner site in 2nd Main Road, which is in existence between IUDPA Layout, Chitradurga and 3rd Phase of Karnataka Housing Board Colony, Chitradurga. It is also his case that it was represented to him that to the western side of his site, a road would be formed, which is supposed to be 15 mtrs. in width and instead of forming 15 mtrs. width road, the corner site has been converted to a middle site. Therefore, he has sought for such a prayer.

It is not in dispute that on an earlier occasion, the petitioner had filed a civil suit before the II Addl. Civil Judge (Sr.Dn.), Chitradurga, which was taken up to this Court in Regular second appeal and compensation has also been awarded.

It is the contention of the respondents that Site No. 82A was formed adjacent to the site allotted to the petitioner. According to him, on an earlier occasion the petitioner had approached this Court in W.P. No. 13032/1999. The same came to be disposed of on 01.12.1999 and that the writ petition was not maintainable, since the petitioner has availed other remedy of civil suit.

The learned Single Judge having examined the matter and after considering the arguments advanced by the parties dismissed the writ petition on the ground that the petitioner had already filed a suit in O.S. No. 280/2001 and that an issue was framed in the said suit in regard to the amount paid by the appellant was higher and requires to be refunded, considering that what was allotted to him was a corner site. The suit filed by the plaintiff came to be dismissed, against which he filed an appeal before the lower Appellate Court, which Court granted compensation of Rs. 35,000/- with interest, which amount has already been paid by the Chitradurga Municipal Council. The learned Single Judge having regard to the decree obtained by the appellant and the dismissal of the earlier writ petition rejected the writ petition. Therefore, the present appeal is filed.

The appellant, who is party-in-person contends that the subject matter of the civil suit is entirely different and that relief sought in the writ petition is altogether different. According to him, writ petition is filed to issue a direction to form 15 mtrs. Width road as per the notification. Since the appellant believed that there would be a road of 15 mtrs. width purchased the Site No. 82. On account of formation of Site No. 82A, his site has become a middle site. In the circumstances, he contends that the learned Single Judge has committed an error in dismissing the writ petition. Therefore, he requests the Court to allow the writ appeal.

Learned Government Advocate submits that the writ petition itself was not maintainable, since the petitioner was required to seek all relief which he is entitled to, in the civil suit in view of Order II Rule 2 CPC. According to him, whatever the prayer the petitioner intended to seek was required to be prayed in the civil suit filed by him and that on piecemeal basis, the appellant cannot file a civil suit for partial relief and approach this Court for the remaining relief by invoking Article 226 of the Constitution of India. He further submits that by misrepresentation of facts, the appellant has filed the writ petition without even producing the sale deed and other relevant documents. Therefore, he requests the Court to dismiss the appeal.

Having heard the appellant who is party-in-person and the learned Government Advocate.

What is to be considered by this Court in this appeal is:

"Whether any error is committed by the learned Single Judge in rejecting the writ petition?" 11. At the first instance, we have noticed that the appellant who is claiming to be an auction purchaser of a corner site bearing No. 82 from the second respondent, for the reasons best known to him has not produced the sale deed. He has also not produced the layout plan or the auction notice to show that the respondents have played a fraud or misrepresented the facts to the appellant to believe that he is going to purchase the site which is having a road width of 15 mtrs.

As rightly pointed out by the learned Government Advocate, when the appellant has filed a civil suit claiming compensation and refund of excess money on the ground that the site allotted to him by the second respondent is not in accordance with the layout plan and if really the contention that the respondents were required to form a 15 mtrs. width road, he was required to plead and seek all possible prayer in the civil suit instituted by him. When the appellant has not sought the whole relief and even if he was intending to file a civil suit claiming partial relief, he was required to obtain permission of the Court to institute a suit or writ petition later in respect of the remaining prayer, in view of Order II Rule 2 of CPC.

Order II Rule 2 of CPC reads as hereunder:

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 beliefs - 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.

In order to appreciate this contention, the appellant was required to produce the copy of the plan and the judgment and decree passed by the Civil Court, so also the judgment passed by this Court in Second Appeal. In the absence of production of these documents and in the absence of leave obtained by him to file a suit or writ petition at a later stage in respect of the prayer which is not included in the suit, he cannot be permitted to file a writ petition on the same ground. In the circumstances, we do not see any merits in this appeal.

Accordingly, the appeal is dismissed.