# Virendra Kumar Bansal v. Kanhaiya Lal Agarwal and another - **Citation:** (2008) 2 ILRA 664 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-07-14 - **Case number:** Civil Misc. Writ Petition No.31389 of 2008 - **Bench:** S.U. Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-bansal-v-kanhaiya-lal-agarwal-and-another-41094 - **Pages:** 3 ## Headnote Code of Civil Procedure-Order II Rule 2 (3)-Amendment of plaint-initial suit for eviction-subsequently by proposed amendment the relief regarding arrears of rent sought-allowed by courts belowheld-proper-considering bar of Second Suit. Held: Para 5 However, in my opinion, if subsequent suit will be barred for a relief on the basis of Order II Rule 2, C.P.C., then in the same suit amendment may be sought for adding the said relief. In this regard, reference may be made to AIR 1940 Privy Council 70, in which it has been held that the rule does not preclude the 2 All] Virendra Kumar Bansal V. Kanhaiya Lal Agarwal and another 665 amendment of plaint by the addition of the claim, which had been omitted. Case law discussed: AIR 1954 Bom. 125, AIR 1940 Privy Council 70, 1977 AWC 449 (454) ## Text 664 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 come in the way of Consumer Forum in granting the relief in the complaint. 8. The learned counsel for the petitioners has cited Judgment Today 2005(6) SC 584, Jacob Mathew Vs. State of Punjab and Another and has contended that the norms for fixing the liability of negligence on the Doctors have been given in the said judgement. He has further contended that the proceeding before the Consumer Forum cannot be allowed to continue in the light of the said judgement. We have perused the aforesaid judgement. In that case the appellant had challenged the order passed under section 482 Cr.P.C. by the Punjab & Haryana High Court. The appeal was allowed and certain observations were made for fixing the liability of medical practitioners in respect of negligence. The proceedings before the Consumer Forum are not treated as criminal proceedings. The respondent no.2 has moved the Consumer Forum for compensation regarding negligence. The petitioners can take the help of the decision given in Jacob Mathew's case in the criminal case pending against them. In the case of Indian Medical Association Vs. V.P. Shantha and Others 1995(3) Consumer Protection Reports 412, referred to earlier the Hon'ble Supreme Court found itself unable to subscribe the view that merely because the medical practitioners belong to the medical profession, they are outside the purview of the provisions of the Consumer Protection Act. The Court held that medical practitioners though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected. 9. In view of above discussions, we are of the opinion that this petition is devoid of merits and is liable to be dismissed. Hence, the petition is dismissed. No order as to cost. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.07.2008 BEFORE THE HON'BLE S.U. KHAN, J. Civil Misc. Writ Petition No.31389 of 2008 Virendra Kumar Bansal ...Petitioner Versus Kanhaiya Lal Agarwal and another ...Respondents Counsel for the Petitioner: Sri Madhav Jain Counsel for the Respondents: Code of Civil Procedure-Order II Rule 2 (3)-Amendment of plaint-initial suit for eviction-subsequently by proposed amendment the relief regarding arrears of rent sought-allowed by courts belowheld-proper-considering bar of Second Suit. Held: Para 5 However, in my opinion, if subsequent suit will be barred for a relief on the basis of Order II Rule 2, C.P.C., then in the same suit amendment may be sought for adding the said relief. In this regard, reference may be made to AIR 1940 Privy Council 70, in which it has been held that the rule does not preclude the 2 All] Virendra Kumar Bansal V. Kanhaiya Lal Agarwal and another 665 amendment of plaint by the addition of the claim, which had been omitted. Case law discussed: AIR 1954 Bom. 125, AIR 1940 Privy Council 70, 1977 AWC 449 (454) (Delivered by Hon'ble S.U. Khan, J.) 1. Heard learned counsel for the petitioner. 2. Landlords respondents have instituted suit for eviction against tenant petitioner in the form of S.C.C. Suit No. 51 of 2005 before J.S.C.C., Agra. Initially in the plaint, only relief for eviction was sought. Thereafter, relief for recovery of unpaid rent was also sought. Thereafter, relief for recovery of unpaid rent was also sought to be added through amendment in the plaint. Said application was allowed by the trial court on 05.10.2007. Against the said judgment and order, petitioner filed S.C.C. Revision No. 74 of 2007, which was dismissed on 03.03.2008 by District Judge, Agra, hence this writ petition. 3. The main argument of learned counsel for the petitioner is that in the original plaint plaintiff omitted to claim the relief for unpaid rent, hence by virtue of Order II Rule 2 (3), C.P.C. (op. cit.) it became barred. "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." 4. Learned counsel for the petitioner has cited AIR 1954 Bom. 125 "K. Ram Chandran Vs. R. Shanker." In the said authority, it has been held that even if subsequent suit is filed during pendency of first suit, bar of Order II Rule 2, C.P.C. will apply to the second suit, if other ingredients are made out. 5. However, in my opinion, if subsequent suit will be barred for a relief on the basis of Order II Rule 2, C.P.C., then in the same suit amendment may be sought for adding the said relief. In this regard, reference may be made to AIR 1940 Privy Council 70, in which it has been held that the rule does not preclude the amendment of plaint by the addition of the claim, which had been omitted. 6. The words 'he shall not afterwards sue' used in the aforesaid provision clearly mean that subsequent suit (whether filed after the decision of the first suit or during its pendency) is barred but amendment is not barred. Seeking amendment does not amount to sue. 7. Moreover, Explanation-II has been added in Order II Rule 2, C.P.C. by U.P., which is quoted below: "Explanation- For the purposes of this rule a claim for the ejectment of the defendant from immovable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property, shall be deemed to be claims in respect of distinct causes of action." 8. In 1977 AWC 449 (454), it has held that the aforesaid explanation is not affected by Section 97 (1) of the Amendment Act No.104 of 1976 (C.P.C. amendment). 666 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 9. Accordingly, by virtue of explanation added by U.P., Order II Rule 2, C.P.C. itself is not applicable to the facts of the instant case. 10. Revisional Court also clarified observation of trial court, which had been made against the plaintiff, who was respondent in the revision. By virtue of Order XLI Rule 33, C.P.C., it was quite permissible and in my opinion the clarification given by the revisional court was quite just and warranted. 11. Accordingly, there is no merit in the writ petition, hence it is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.06.2008 BEFORE THE HON'BLE TARUN AGARWALA, J. Civil Misc. Writ Petition No. 40244 of 2002 Smt. Janki Devi ...Petitioner Versus Nagar Nigam Allahabad and another ...Respondents Counsel for the Petitioner: Sri A.P. Tewari Counsel for the Respondents: Sri S.D. Kautilya U.P. Dying in Harness Rules, 1974-Rule-2 (a) (ii) Government Servant-petitioner's husband working as DOM on Daily wages basis-since 1984 Died in harness in the year 2000-petitioner was given appointment on Daily Wager Basis-she claimed to be regular employee and the other salary benefits like regular employees-Nagar Nigam is within the meaning of State-No attempt made to get the Post of DOM sanctionedconsidering long term of regular need and nature of work-can not be treated as Daily wages-compassionate appointee always treated to be substantive appointee from the date of her initial appointment. Held: Para 11 & 12 This Court is of the opinion that an appointment made under the Dying in Harness Rules is permanent in character, that is to say, a substantive appointment and that the appointment cannot be treated as a temporary appointment or an appointment on a daily rated basis as held by a division bench of this Court in 1999 (3)UPLBEC2263, Ravi Karan Singh vs. State of U.P. and others and 2002 (3) ESC 454, Sanjai Kumar vs. Dy. Director General (NCC) Directorate, U.P., Lucknow and others. In view of the aforesaid, the writ petition is allowed. A writ of mandamus is issued directing the respondents to treat the petitioner as having been appointed in a substantive capacity under the Dying in Harness Rules. The petitioner is consequently entitled to be treated as a regular employee of the Nagar Nigam and is entitled to the pay given to a regular employee from the initial date of her appointment. The arrears of salary would be calculated by the respondents and shall be paid to the petitioner within three months from the date of the production of a certified copy of this order. Case law discussed: 2003(1) Selected Allahabad Cases 122, 2002 (1) UPLBEC 337, 1999 (3)UPLBEC2263, 2002 (3) ESC 454 (Delivered by Hon'ble Tarun Agarwala, J.) 1. Heard Sri A.P. Tewari, the learned counsel for the petitioner. List has been revised. The learned counsel for the respondents is not present.