Allowed

Zaheeruddin v. Mohd. Rafathullah

Telangana HC23 Apr 2010CRP/3800/2009

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Petition against a trial court order that permitted an amendment to a claim petition for damages. The court held that the trial court exceeded its jurisdiction as the plaintiff had previously voluntarily relinquished the claim, violating Order 2 of the CPC.

What did the court decide?

The Civil Revision Petition was allowed. There shall be no order as to costs.

Zaheeruddin Vs Mohd. Rafathullah — Property and Title | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND TEN

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PRESENT

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THE HON'BLE SRI JUSTICE K.C.BHANU

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CIVIL REVISION PETITION No. 3800 OF 2009

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Between :

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Zaheeruddin. ...PETITIONER

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A N D

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Mohd. Rafathullah and another. …RESPONDENTS

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THE HON'BLE SRI JUSTICE K.C. BHANU

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CIVIL REVISION PETITION No. 3800 OF 2009

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O R D E R:

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This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 16.07.2009 in E.A. No.504 of 2009 in E.A. No.141 of 2007 in E.P.No.82 of 2006 in O.S. No.891 of 2005, on the file of V Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the application filed to permit the respondent No.1 to carry out the amendment in E.A. No.141 of 2007, as per the proposed amendment, was allowed, on certain conditions.

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2. Heard both sides. The petitioner herein is the DHr., the R-2 herein is the J.Dr. and the R-1 herein is the third party, in the E.P.

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3. The amendment petition was filed seeking damages for alleged illegal dispossession of the petitioner herein from the schedule

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premises. Admittedly the first respondent herein filed the claim petition E.A. No.141 of 2007, claiming that he is the owner of the E.P. Schedule property having purchased under a registered sale deed from one Rabia Begum. Thereafter, in pursuance of the decree, registered sale deed was executed in favour of first respondent through process of law and therefore, the first respondent was evicted from the schedule premises.

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4. The claim petition is filed by respondent No.1 herein for his illegal dispossession from his property purchased by him under a registered sale deed in the year 1998 and claimed damages for illegal dispossession. Then he filed a petition to amend the petition. In the first instance, the petition was dismissed as withdrawn. Similarly again the first respondent herein filed another application for the self same relief to amend the petition claiming damages under Order XVI Rule 17 of the C.P.C. That petition was also not pressed by the first respondent. Though the principle of res judicata may not apply, as the issue has not been determined by the competent Court finally but at the same time the R-1 cannot be permitted to file one petition after another praying for same relief. Rule 1 of Order 2 C.P.C. enjoins the plaintiff to include the whole of his claim in respect of a cause of action. It however allows him to give up, abandon or relinquish any portion of his claim.

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Sub rule (2) declares that where the plaintiff omits to sue or intentionally relinquishes any portion of his claim, he shall not be allowed afterwards to sue for the portion so omitted or relinquished. The provisions of Rule 2 Order 2 are based on the cardinal principle of law that no defendant should be vexed twice for one and the same case. The principle contained in this rule is designed to counteract two evils namely (i) splitting up of claims (ii) splitting up of remedies.

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No reasons are assigned for withdrawing the earlier two applications filed for self same relief. Similarly the R-1 has not sought for the leave of the Court to file comprehensive application for amendment of the petition. So in the present petition, the trial court ought not to have

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allowed the amendment petition as the claim has been relinquished by R-1 voluntarily. Therefore, the trial court exceeded its jurisdiction in ordering the amendment petition.

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5. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.

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_______________ K.C.BHANU. J

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APRIL 23, 2010. YVL

Zaheeruddin v. Mohd. Rafathullah

Case brief

What is this about?

What did the court decide?

Zaheeruddin v. Mohd. Rafathullah

Case brief

What is this about?

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