Madras High Court
U.B.Shanmugam vs S.Sadagopan (Deceased)
C.S.No.879 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON
13.08.2024 19.12.2024
CORAM :
THE HON`BLE MR.JUSTICE K.KUMARESH BABU
C.S.No.879 of 2005
U.B.Shanmugam ... Plaintiff
vs.
1.S.Sadagopan (Deceased)
2.R.Malathy
3.S.Rengarajan
4.S.Arunprasath
defendants 2 to 4 already record and recorded as legal heirs of the deceased 1st
defendant as per order dated 16.07.20021 on memo in C.S.No.879 of 2005
5.T.R.Rangachari
6.N.Navaneetham (Deceased)
7.G.Jayakumari
8.G.Krishnamurthy
9.V.Umamaheswari
10.K.Jayasri
(Defendants 7 to 10 are impleaded as per order dated 30.03.2012 in
Appl.Nos.914 & 915 of 2012 and time extended as per order dated 10.10.2018)
11.T.R.Ashok
12. T.R.Ramesh
(Defendants 11 & 12 brought on record as legal heirs of the deceased 5th
defendant as per order dated 27.08.2021 in Appl.No.2187 of 2021.
13. Poonguzhali
14.Nishanthi
15.Santhosh
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Page No. 1 of 21
C.S.No.879 of 2005
16.Dharani
(Lrs of Def.6 are brought on record as Defs., 13 to 16 as per order dated
23.12.2021 in Appl.No.4639 of 2021)
17.The General Manager (Tech)
& Projects Director,
National Highways Authority of India,
PIU – Thanjavur
No.54, Natarajapuram North Colony,
Medical College Road,
Thanjavur – 613 004. ... Defendants
(impleaded as def.17 as per order dated 19.12.2023 in Appl.No.6485 of 2023)
Prayer : Civil Suit filed under Order VII Rule 1 CPC read with Order IV Rule 1
of Original Side Rules praying for the following judgment and decree against
the defendants :
a) Grant a decree of specific performance of the agreement of
sale dated 21.10.2003 executed by the fifth defendant on behalf of the
defendants 1 to 4 by directing the defendants 1 to 5 to execute and
register the sale deed in favour of plaintiff and in default the sale deed
be executed and registered by the officer of this Court in favour of the
plaintiff for the suit property.
b) Declare that the sale deed executed by the 5th defendant as
the power agent of defendants 1 to 4 in favour of the 6th defendant and
registered as document No.1869 of 2005 dated 06.06.2005 registered
at the office of S.R.O. Kumbakonam as null and void;
c) for cost of the suit: and
d) for such other relief or relief's as this Court may deem fit and
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proper in the circumstances of the case.
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C.S.No.879 of 2005
For Plaintiff : Mr.G.B.Sabaridas
For defendants : Mr.B.Manoharan for D7, 8, 9, & 10
Ms.G.Sumithra for D 13 to 16
Mr.Su.Srinivasan Sr. counsel for NHAI for D17
D1, D5, D6 – Deceased
D11, D12 service not completed
D2 to D4 set exparte on 21.07.2022
JUDGMENT
This instant suit has been filed for decree of specific performance of the agreement of sale dated 21.10.2003 executed by the 5th defendant on behalf of the defendants 1 to 4 and to declare the sale deed dated 06.06.2005 vide document No.1869 of 2005 executed by the 5th defendant on behalf of the defendants 1 to 4, at the office of SRO, Kumbakonam as null and void and for cost of the suit.
2. Original defendants D1, D5 & D6 had died during the pendency of the Suit. By order dated 16.07.2021, on the memo filed, D2 to D4 have been declared as legal heirs of the deceased D1, D11 & D12 have been impleaded as legal heirs of the deceased D5 by order of this Court dated 27.08.2021 in Application No.2187 of 2021 and defendants 13 to 16 were impleaded as legal https://www.mhc.tn.gov.in/judis heirs of the deceased D6 by order of this Court dated 23.12.2021 in Application Page No. 3 of 21 C.S.No.879 of 2005 No.4369 of 2021 and D7 to D10 were impleaded as per order of this Court dated 30.03.2012 in Application Nos.914 & 915 of 2012. D2 to D4 were set exparte by order of this Court dated 21.07.2022. D7 had filed a written statement which has also been adopted by D8 to D10. D13 to D16 have also filed their written statement. D17 was impleaded by order of this Court dated 19.12.2023 in Appl.No.6485 of 2023.
3.The brief averments in the plaint:-
The suit schedule property originally belonged to one S.Srinivasan who is the father of the defendants 1 to 4. After the demise of S.Srinivasan, the property was devolved upon the defendants 1 to 4. The defendants 1 to 4 appointed the fifth defendant as their power of attorney. The fifth defendant ventured into an agreement of sale with the plaintiff on 21.10.2003 to sell the suit schedule property for a sale consideration of Rs.17,01,648/-. The plaintiff gave a part sale consideration of Rs.1,00,000/- on the same day of agreement of sale. Further, the sum of Rs.2,00,000/- was disbursed by way of a cheque dated 22.12.2003 which was encashed and endorsed by the defendants 1,3 and 5. The first and third defendants received a sum of Rs.3,00,000/- on 05.12.2004 and issued a receipt for themself and on behalf of second and fourth defendants. In toto, the plaintiff has paid a sum of Rs.6,00,000/- as part sale consideration for the agreement of sale. Though the agreement of sale denotes the time limit for https://www.mhc.tn.gov.in/judis execution of sale as six months, from the fact that the defendants received the Page No. 4 of 21 C.S.No.879 of 2005 part sale consideration after a period of one year clearly shows that time is not the essence of the contract. Further the defendants 1 to 4 requested the plaintiff to wait till the clearance of encumbrance over the suit property. In the meanwhile, part of the suit schedule property around 2000 sq.ft out of 87,264 sq.ft was acquired for the expansion of road. But the particulars of acquisition were not given by the defendants 1 to 4. Hence, it took time till 3rd week of September, 2005 for the plaintiff to obtain the information. Furthermore, the plaintiff was ready and willing to purchase the remaining portion of the suit schedule property. In such circumstances, the fifth defendant caused legal notice on the plaintiff on 16.04.2005 called upon the plaintiff for execution of the sale and otherwise the plaintiff was asked to pay damages to a tune of Rs.50,000/-. This notice was suitably replied to by the plaintiff on 23.04.2005.
The plaintiff was inclined to file suit in vacation court, Tanjore for permanent injunction restraining the defendants 1 to 5 not to alienate the suit property in O.S.No.56 of 2005. Later, it was transferred to District Munsif Court, Kumbakonam as O.S.No.218 of 2005. The fifth defendant sold the suit schedule property to the sixth defendant vide document No.1869 of 2005 on 06.06.2005 before the SRO, Kumbakonam. Now, the plaintiff is ready and willing to perform the agreement of sale dated 21.10.2003 and sought for declaration of the sale deed in favour of the sixth defendant as void.
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4.The brief averments of the defendant 7 as adopted by D8 to D10 Page No. 5 of 21 C.S.No.879 of 2005 The seventh defendant denies the case of the plaintiff that there is no cause of action in the present suit and the same is hit by res- judicata. The plaintiff has already approached the District Munsif Court, Kumbakonam in O.S.No.218 of 2005 for a bare injunction in respect of the same schedule property which was dismissed. The seventh defendant further states that the suit property was located within the Tanjore district, hence the suit is not maintainable before this court relying on the place of agreement and place of residence of the defendants. The seventh defendant contends that he is unaware of the agreement of sale entered between the plaintiff and fifth defendant and the fifth defendant caused legal notice to the plaintiff for non-performance. Further, the agreement of sale has specified time for performance of the contract, hence time is the essence of this contract and it cannot be performed after the specified period. The seventh defendant states that the plaintiff cannot claim for a larger extent than the agreement of sale. He denied that notice in interlocutory application was served on him and stated that no proof of service was produced. The plaintiff to prove his bonafideness did not deposit the balance consideration and did not even took steps to list the case for about 13 years. Further, the plaintiff filed the suit only for bare injunction and not for specific performance in May, 2005 would establish his financial condition and his inability to perform the contract. Moreover, the plaintiff approached the District Munsif Court only after cancelling the agreement of sale and approached the High Court only after https://www.mhc.tn.gov.in/judis a delay of four months of sale. The seventh defendant states that he is the Page No. 6 of 21 C.S.No.879 of 2005 bonafide purchaser and the plaintiff has not challenged his sale deed. This suit was filed before this Hon’ble Court only to avoid payment of court fees. The plaintiff filed the suit one after another and took steps to carry out amendment and filing of applications clearly establishes the intention to grab money. Hence, this suit deserves dismissal.
5. The defendants 13 to 16 denied the case of the plaintiff by contending that the suit is not maintainable before this Hon’ble Court, since the defendants except defendants 11 and 12 are not residing within the jurisdiction of this Hon’ble Court and also the suit property is located outside the jurisdiction of this Hon’ble Court. The plaintiff had already filed a suit before the District Munsif Court, Kumbakonam for a bare injunction which was dismissed. The plaintiff did not produce any document to show liberty. Hence, this suit is hit by Order 2 Rule 2(3) of CPC. The plaintiff failed to prove the devolution of property upon the defendants 1 to 4 and authorisation of Power of Attorney. The sixth defendant is not aware of the agreement of sale and he is not the party to the document. Therefore, it will not bind the sixth defendant and his legal heirs defendants 13 to 16. The defendants 13 to 16 denied that no notice was served on the sixth defendant and contend that the statement is baseless and unsustainable. The said notice cannot be presumed as constructive notice. Further, denies that the plaintiff along with one Ramesh met the sixth defendant https://www.mhc.tn.gov.in/judis and pleaded not to purchase the suit property. The defendants 13 to 16 dispute Page No. 7 of 21 C.S.No.879 of 2005 and the claim of the plaintiff that the sale deed is not bonafide in law. The plaintiff failed to prove his readiness and willingness and did not deposit the balance sale consideration. Further, no proof was filed to show the possession of the property is with the plaintiff. Therefore, the present suit is to be dismissed.
6. On perusal of the above pleadings, the following issues have been framed for trial:
1)Whether the suit is hit by Order II Rule 2(3) of CPC as the plaintiff has not obtained any leave of the Court for filing the present suit when he had filed only an injunction suit in O.S.No.218 of 2005 on the file of the District Munsif Court, Kumbakonam?
2)Whether the plaintiff is entitled for specific performance of the agreement dated 21.10.2003 between him and the 5th defendant as power agent of the defendants 1 to 4, the then owner of the suit property along with a larger extent of land?
3)Whether the plaintiff is ready and willing to perform his part of contract as per the agreement dated 21.10.2003 between him and the 5th defendant as power agent of the defendants 1 to 4, the then owner of the suit property along with larger extent of land when filed suit bare injunction suit in O.S.No.218 of 2005 on the file of the District Munsif https://www.mhc.tn.gov.in/judis Court on 18.05.2005?
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4)Whether there is a subsisting legally enforceable contract between the plaintiff and defendants as on 05.10.2005 when the present suit is filed?
5)What other relief is the plaintiff entitled?
On the side of the plaintiff, brother of plaintiff Mr.U.B.Swaminathan was examined as PW1 and marked Ex.P1 to Ex.P12. On the side of the defendants, the seventh defendant and the fifteenth defendant were examined as DW1 and DW2 respectively and marked Ex.D1 and Ex.D2.
7. Mr.G.B.Sabaridas, learned counsel for plaintiff vehemently submits that the plaintiff ventured into an agreement of sale dated 21.10.2003 with the fifth defendant, who is the power agent of defendants 1 to 4, to purchase the suit schedule property for a sale consideration of Rs.17,01,648/-. On the same day, a sum of Rs.1,00,000/- was given to the fifth defendant as a part sale consideration. Thereafter, a sum of Rs.5,00,000/- was disbursed to the fifth defendant and first and third defendants on various dates. Altogether, the plaintiff had given sale consideration to a tune of Rs.6,00,000/-. The learned counsel submits that since, the defendants 1 to 5 agreed to clear the encumbrances over the property the plaintiff holded the horses to execute the sale. While so, the suit schedule property to an extent of 2000 sq.ft was acquired for expansion of road. The plaintiff is ready and willing to purchase the https://www.mhc.tn.gov.in/judis remaining portion. Further, when the plaintiff required the particulars of the Page No. 9 of 21 C.S.No.879 of 2005 land acquisition, the defendants 1 to 5 brushed aside the request and it took till 3rd week of September, 2005 to collect the particulars for the plaintiff. He vehemently contends that the delay on execution is not his fault and it is the negligence on part of the defendants 1 to 5 to provide the particulars of land acquisition.
8. The learned counsel for plaintiff contends that the fifth defendant issued legal notice to the plaintiff on 16.04.2005 cancelling the agreement of sale for non performance of contract. The said notice was suitably replied by the plaintiff on 23.04.2005. Further, the plaintiff filed a suit for bare injunction to not to alienate the suit property, before the Special Vacation Court, Thanjavur in O.S.No.56 of 2005 which was transferred to District Munsif Court, Kumbakonam and renumbered as O.S.No.218 of 2005. In which the plaintiff moved an interlocutory application in I.A.No.136 of 2005 wherein sought for interim injunction not to alienate the suit schedule property in which the notice was served on the defendants 1 to 5. Meanwhile, the defendants 1 to 5 sold the property to the sixth defendant vide sale deed dated 06.06.2005 document No.1869 of 2005 on the file of SRO Kumbakonam. He further submits that the plaintiff is ready and willing to pay the balance sale consideration. Hence, the plaintiff prays to decree the suit as prayed for.
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9. Countering the arguments of the learned counsel for the plaintiff, Page No. 10 of 21 C.S.No.879 of 2005 Mr.B.Manoharan, Learned counsel for the defendants 7 to 10 contends that though the time limit was fixed in the agreement of sale as six months, the plaintiff hold his horses till the defendants 1 to 5 sent a legal notice cancelling the agreement of sale. He further contends that the seventh defendant was an innocent purchaser who was not aware of the agreement of sale and suit purchased the suit schedule property to an extent of 52 cents vide sale deed document No.887 of 2008 dated 31.01.2008. Further, he submits that the plaintiff filed a suit for permanent injunction not to alienate the suit schedule property, as against the sixth and seventh defendants in O.S No.117 of 2008 on the file of 1st Addl. District Munsif at Kumbakonam. The suit was dismissed on 28.07.2016 and the plaintiff preferred an appeal in A.S.No.38 of 2016 which was also dismissed on 08.03.2018.
10. He vehemently contends that though plaintiff was ready and willing to perform his part of agreement he filed a suit for injunction restraining not to alienate the suit schedule property as against the defendants 1 to 5 in O.S.No.218 of 2005 and not for suit for specific performance. This clearly exhibits that the plaintiff is not ready and willing to perform the agreement. It is settled law that the plaintiff who approaches the court must always be ready and willing to perform his part of contract as per Section 16(c) of the Specific Relief Act. Further, he contends that no per-action to show that he is ready and willing https://www.mhc.tn.gov.in/judis to perform the obligation. Neither in the pleading nor in evidence, the plaintiff Page No. 11 of 21 C.S.No.879 of 2005 is silent what step he had taken between Ex.P4 and filing of the suits. He relied upon the Apex Court judgements in Shenbagam and Others vs K.K.Rathinavel reported in 2022 SCC Online SC 71 and in Pydi Ramana @ Ramulu Vs. Davarasety Manmadha Rao reported in Civil Appeal No.434 of 2012 dated 10.07.2024 and in P.Ravindranath and others Vs Sasikala and others reported in 2024 INSC 533 and contended that merely averring that the plaintiff was waiting with the balance consideration and believed that the defendants would clear the encumbrance is insufficient to prove that the plaintiff was willing to perform his obligations under the contract and also relied upon the Apex Court judgement in Pydi Ramana @ Ramulu Vs. Davarasety Manmadha Rao reported in Civil Appeal No.434 of 2012 dated 10.07.2024.
11. He submits that the plaintiff failed to enter the witness box to prove his case and no proof was filed to enunciate the health condition of the plaintiff. Moreover, though the Ex.P4 reveals that only a sum of Rs.3,00,000/- was received, in Ex.P5, the reply notice claims a further sum of Rs.3,00,000.- was paid. But it was neither admitted nor denied by the defendants 1 to 5. Since, because the defendants did not file the written statement and were set exparte. Further, he professes that in order to get a relief of specific performance the plaintiff must have produced evidence to show continuous “readiness and willingness” to pay the consideration money in agreement to sell, which https://www.mhc.tn.gov.in/judis plaintiff was required to prove, regardless of any default by original defendant Page No. 12 of 21 C.S.No.879 of 2005 and relied upon the Apex court judgement in U.N.Krishnamurthy (Since Deceased) Vs. A.M.Krishnamurthy reported in 2022 SCC Online SC 840. Upon the above submission, he prays to dismiss the suit.
12. Mrs.G.Sumithra, learned counsel for the defendants 13 to 16 submits that the suit itself is not maintainable since, the suit schedule property was situated outside the jurisdiction of this court and the defendants except defendants 11 and 12, were residing outside the jurisdiction of this court. Further, contends that the contention made by the plaintiff that the defendants are residing within the jurisdiction of this court is not sustainable and suit for specific performance was to be filed within the court under whose local jurisdiction the suit property is situated. She relied upon a division bench judgement of this Court in K.Paranthaman, Proprietor, American Organic Food Products Inc., Vs. C.Padmanabhan and others reported in 2019(3) CTC 228 and contended that in a suit for specific performance where the suit is only for enforcement of the Agreement simpliciter without seeking for any other relief, the same will also fall within the ambit of “Suit for land” since the relief of possession is inherent in the relief of specific performance. On relying upon the aforesaid judgement, she contended that when it is a suit for land then it should be filed before the court within whose local jurisdiction the suit property is situated.
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13. She vehemently contends that the plaintiff already filed a suit for Page No. 13 of 21 C.S.No.879 of 2005 permanent injunction before the District Court, Coimbatore which was dismissed on the ground that there is alternative effective relief available. She submits that no liberty was sought or granted by the trial court. Hence, no suit is maintainable as against the same cause of action as to the agreement of sale dated 21.10.2003. She further contends that there is a bar to maintain subsequent suit under Order II Rule 2 of CPC, when a suit is filed for Permanent Injunction against defendants from alienating suit property and subsequently, another suit filed for specific performance without obtaining leave of court and relied upon the Apex Court judgement in Virgo Industries (Eng.) P. Ltd Vs Venturetech Solutions P. Ltd. reported in 2013(1)MWN (Civil) 224.
14. She further submits that the sixth defendant was not aware of the agreement and suit filed by the plaintiff. Moreover, the sixth defendant was not a party to the agreement of sale. Therefore, it will not bind the sixth defendant and the defendants 13 to 16. Further she contends that no proof was filed by the plaintiff to show the notice was served on the sixth defendant.
15. She put forth that burden of proof to prove a case is on the plaintiff and it is fatal to the case of the plaintiff if the plaintiff himself not been examined as witness to prove his case and on this above contention she relied https://www.mhc.tn.gov.in/judis upon single judge judgement of this Court in Yesudhas and others Vs Primala Page No. 14 of 21 C.S.No.879 of 2005 Regu reported in 2016(5) LW 918. Besides, to prove the readiness and willingness, the plaintiff has not deposited any amount into the account of the suit. She submits that from the above said contentions the suit is not maintainable before this court and further, the plaintiff failed to prove his case. She prays to dismiss the suit as devoid of merits.
16. I have heard the rival submissions made by the learned counsel appearing on either side and perused the materials placed on record.
17. Issue No.1 Whether the suit is hit by Order II Rule 2(3) of CPC as the plaintiff has not obtained any leave of the Court for filing the present suit when he had filed only an injunction suit in O.S.No.218 of 2005
18. It is an admitted case even in the plaint that during the 2nd week of April 2005, the D5, who acted as a power agent for D1 to D4 had complained of a breach of an agreement and the said notice was suitably replied by the plaintiff. The said notice and the reply notice had been marked as Ex.P4 & Ex.P5 on the side of the plaintiff. A reading of the Ex.P4 would indicate that the D1 to D4 through their power agent D5 had expressed their apprehension https://www.mhc.tn.gov.in/judis that the plaintiff was not interested in purchasing the property and had called Page No. 15 of 21 C.S.No.879 of 2005 upon him to pay the balance sale consideration and get the sale deed registered within 10 days of receipt of the same failing which he had intimated their intention to sell the property to some third parties. They had also called upon the plaintiff to pay damages for a sum of Rs.50,000/- and on the failure they had also expressed their willingness to refund the advance after deducting a sum of Rs.50,000/-which they quantified as damages.
19. Under Ex.P5, the plaintiff had sent a detailed reply making allegations in relation to the land acquisition proceedings and had stated that the D1 to D5 did not have the power to unilaterally cancel the sale agreement. A thorough reading of the said reply, I do not find any statement expressing the readiness and willingness on the part of the plaintiff. Thereafter, the plaintiff had proceeded to file a Suit in O.S.No.218 of 2005 and the plaint copy had been marked as Ex.P.6.
20.The cause of action as pleaded by the plaintiff in the said suit also refers to Ex.P.4 & Ex.P.5 and the apprehension of the plaintiff that the D1 to D5 herein may execute a document in favour of the third parties viz., D6 & D7 therein and had prayed for a bare injunction restraining, D1 to D5 or their men not to alienate the Suit Schedule Property in favour of any third parties or on the contrary to grant an injunction against the D6 & D7 therein not to entertain any https://www.mhc.tn.gov.in/judis document pertaining to the suit property. Under Ex.P4, D1 to D5 had clearly Page No. 16 of 21 C.S.No.879 of 2005 expressed their intention to deal with the property in favour of third parties if the plaintiff fails to deposit the balance sale consideration and get the sale deed executed within the time fixed and admittedly within the said time fixed, the plaintiff neither had paid the balance sale consideration nor had expressed his readiness and willingness to perform his part of contract.
21. I have also found that even in the reply under Ex.P8, the plaintiff had not expressed his readiness and willingness. In such an event, even on the date of filing the Suit under Ex.P.6, the plaintiff had a cause of action to seek for specific performance of the contract. However, he had failed to seek such relief. In that context, it would be useful to refer to the provisions of Sub-Rule (3) of Rule 2 to Order II CPC which is extracted hereunder:-
2.Suit to include the whole claim:-
(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, 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.
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22. The aforesaid provisions mandates that if a cause of action in the later Page No. 17 of 21 C.S.No.879 of 2005 suit must be the same in the first Suit and if the plaintiff had failed seek for a remedy which was available to him in the first Suit, then the plaintiff would have to seek leave of the Court to institute a fresh Suit and only on such leave granted by the Court, the second Suit would be maintainable. In the present case even though the application for leave had been sought for, the said leave was only to sue the defendants, who were residing outside the jurisdiction of this Court and there has been no application for leave as provided under Order II Rule 2(3). The plaintiff had also not taken out any similar application in the earlier Suit filed by him under Ex.P6 plaint.
23. The learned counsel appearing for the defendants 13 to 16 had relied upon a judgment of the Hon'ble Apex Court in the case of Virgo Industries (Eng.) P., Ltd., vs. Venturetech Solutions P. Ltd reported in 2013(1) MWN (Civil) 224. The Hon'ble Apex Court analyzing the provisions of Order II Rule 2, placing reliance on the various judgments of the Hon'ble Apex Court preceding the said judgment, had in clear terms held on the facts of the case, the subsequent Suit as being barred under Order II, Rule 2(3). The facts of the case was that the plaintiff therein had originally filed Suits in the year 2005, seeking for a permanent injunction and that he had filed a subsequent suit in the year 2007 for grant of relief of specific performance. The Court therein after analyzing the cause of action in both the suits had given a categorical finding https://www.mhc.tn.gov.in/judis that even at the time of filing the first suit in the year 2005, the plaintiff therein Page No. 18 of 21 C.S.No.879 of 2005 had a cause of action to sue the defendants for a specific performance, but had omitted to do so. Even though a leave was sought for by the plaintiff therein, no such leave was granted by the Court and since that no leave had been granted to the plaintiff therein, the Hon'ble Apex Court had come to a conclusion that subsequent suit was barred under Order II, Rule 2(3) and had directed striking off the plaint in the subsequent Suit.
24. Even in the present case, the reading of the cause of action in the suit filed under plaint, Ex.P.6 and the present suit will also indicate that the same had been filed pursuant to the sale agreement under Ex.P.2, the notice under Ex.P4 and the reply notice under Ex.P.5, the only addition is that the sale deed that had been executed by the D5 in favour of the D6. Even though the plaintiff had impleaded D7 to D10, who are the subsequent purchasers, he had not amended his cause of action or he had not prayed for declaring the sale deeds in favour of D7 to D10 as null and void.
25. By applying the provisions of Order II, Rule 2(3) and applying the principles of law laid down by the Hon'ble Apex Court in the judgment referred supra, I am of the conclusive view that the present Suit is also hit by provisions of Order II, Rule 2(3) and on the ground itself suit would have to be dismissed. https://www.mhc.tn.gov.in/judis
26.In view of the categorical reasoning and findings with issue No.1, Page No. 19 of 21 C.S.No.879 of 2005 there is no necessity to traverse to the other issues that had been framed.
27. In fine, the Suit fails and it is accordingly dismissed. However, there shall be no order as to costs.
19.12.2024 Index : Yes / No Internet :Yes / No Pbn https://www.mhc.tn.gov.in/judis Page No. 20 of 21 C.S.No.879 of 2005 K.KUMARESH BABU.J., Pbn Pre-Delivery Judgment in C.S.No.879 of 2005 https://www.mhc.tn.gov.in/judis 19.12.2024 Page No. 21 of 21