Madras High Court
Kumarayee Ammal vs M.Ramanathan on 27 April, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/04/2007 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRP (PD) (MD) No.984 of 2006 and M.P.(MD) No.1 of 2006 and M.P. (MD) No.1 of 2007 1.Kumarayee Ammal 2.Rasappa Gounder 3.Nadeshan 4.Loganathan 5.Balasubramanian 6.Choliappan 7.Thangavel 8.Amaravathi 9.Chellappan 10.Paluchamy 11.Kesavan .. Petitioners Vs M.Ramanathan Rep. by his Power Agent S.P.Kathiresan .. Respondent Prayer This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 04.08.2006 made in I.A.No.39 of 2006 in O.S. No.126 of 2005 on the file of the Subordinate Court, Karur. !For Petitioners : Mr.G.Marimuthu ^For Respondent : Mr.P.Senthoorpandian for Mr.N.Pappiah :ORDER
This Civil Revision Petition has been filed challenging the order of dismissal of an interlocutory application filed under Order 7 Rule 11 C.P.C. dated 04.08.2006 made in I.A.No.39 of 2006 in O.S. No.126 of 2005 on the file of the learned Subordinate Judge, Karur.
2.The petitioners are the defendants and the respondent is the plaintiff in the said suit. Admittedly, the petitioners and the respondent have entered into a sale agreement dated 09.02.1996, by which the petitioners have agreed to sell one acre 23 cents of their land to the respondent for a consideration of Rs.12,000/- per cent and received a sum of Rs.4,92,000/- from the respondent as advance on the date of the agreement itself.
3.Subsequently, the respondent has issued a legal notice dated 26.03.2004 to the petitioners calling upon them to perform their part of the contract. For the said notice, the petitioners have issued a reply notice dated 24.04.2004, stating that they are ready to execute sale deed only in respect of 41 cents which is equivalent to Rs.4,92,000/- in terms of market value. They have further stated that the rest of the area of the land covered in the sale agreement had been sold away by them in favour of third parties as respondent did not come forward to pay the balance of sale consideration in time.
4.After the receipt of the said reply notice, the respondent did protest the sale made. However, he filed O.S.No.321 of 2005 on the file of the learned District Munsif, Karur in respect of the above 41 cents alone for permanent injunction to restrain the petitioners from alienating the same to third parties. The events constituting cause of action for filing the said suit have been enumerated in paragraph 10 of the plaint as follows:
"It is submitted that the defendants have arranged to execute a sale deed in favour of Venkatesh and Kathirvel and the registration was fixed on 13.04.2005. Immediately after the knowledge the plaintiff and his men intervened and thwarted the unlawful attempt of the defendants with great difficulties. Even then the defendants and his men openly divulge that they will convey or transfer the suit property in favour of the third parties. The defendants have vast followers to achieve their unlawful object by any means. Hence this suit for permanent injunction restraining the defendants and their men not to alienate the suit property to third parties."
A close reading of the said averments in paragraph 10 of the plaint would show that there were attempts made by the petitioners to sell the suit property viz. 41 cents to third parties in gross violation of the agreement for sale.
5.In the said suit the petitioners have filed a written statement specifically denying to execute sale deed in favour of the respondent. The petitioners have averred that originally they were ready and willing to execute necessary sale deed in respect of 41 cents to the respondent as expressed in their reply notice. But, the respondent did not come forward to get the sale deed executed in his favour. Instead, there was a panchayat held between the parties to mediate the dispute, in which, it is alleged, the respondent agreed to receive back the advance amount of Rs.4,92,000/- and gave up his right to have sale deed executed in his favour.
6.Thereafter, the respondent has chosen to file a fresh suit in O.S.No.126 of 2005 on the file of the learned Subordinate Judge, Karur for specific performance of contract in respect of 41 cents and in the alternative for the refund of Rs.4,92,000/- with interest. After filing this suit, the respondent has withdrawn the earlier suit in O.S.No.321 of 2005.
7.In the suit in O.S.No.126 of 2005, the petitioners have filed a written statement contending inter alia that this suit is barred under Order 2 Rule 2 C.P.C. in view of the withdrawal of the earlier suit in O.S.No.321 of 2005. Seeking to reject the plaint on the above ground, the petitioners have filed I.A.No.39 of 2006 before the learned Subordinate Judge, Karur under Order 7 Rule 11 C.P.C. The respondent has filed a detailed counter mainly contending that the present suit is not barred under Order 2 Rule 2 C.P.C., since the cause of action for O.S.No.321 of 2005 and O.S.No.126 of 2005 are different and there was no cause of action available for him at the time when he filed O.S.No.321 of 2005 to include the prayer for specific performance and the alternative relief of return of the advance amount. He has further averred that the question whether the suit in O.S.No.126 of 2005 is barred or not can be decided while finally disposing of the suit on evidence and the same should not be decided as a preliminary issue.
8.Having considered the rival contentions, the learned subordinate Judge, Karur, by order dated 04.08.2006 has dismissed the interlocutory application. Challenging the same, this civil revision petition has been filed.
9.Heard both sides. The contention of the learned counsel for the petitioners is that the facts stated in paragraph 10 of the earlier suit in O.S.No.321 of 2005 clearly constitute a sufficient cause of action necessitating to file a comprehensive suit, but the respondent had chosen to limit his relief only for permanent injunction and so, he is barred under Order 2 Rule 2 C.P.C. to maintain the present suit in O.S.No.126 of 2005. He has further contended, that the cause of action for filing both the suits is one and the same and not different as averred by the respondent. He has further contended that under Order 7 Rule 11 C.P.C., this question regarding maintainability should be decided as a preliminary issue and the same cannot be postponed till the final stage of the suit. The learned counsel would rely on the following judgments in support of his contentions.
"2005(3) CTC 545 (Srinivasa Murthy, N.V. v. Mariyamma (Dead) by Proposed Lrs), AIR 1970 SUPREME COURT 1059 (Sidramappa v. Rajashetty), 2006(2) CTC 799 (Raptakos Brett and Company Pvt. Ltd. v. Modi Business Centre (Pvt.) Ltd.) and AIR 2004 BOMBAY 455 (Gajanan R. Salvi v.Satish Shankar Gupte)."
10.Per contra, the learned counsel for the respondent would contend that the facts constituting the cause of action for filing the earlier suit in O.S.No.321 of 2005 were sufficient to file only a suit for permanent injunction and those facts did not constitute a cause of action for including the prayer for specific performance and the alternative relief of refund of advance money. According to him, since the petitioners did not specifically refuse to perform their part of the contract and since, in the reply notice they had expressed their willingness to perform their part of the contract, there was no cause of action for them to file a comprehensive suit. He would further contend that it was for the first time in the written statement filed in O.S.No.321 of 2005, the petitioners denied their liability to perform their part of contract and thus, cause of action for filing a suit for specific performance arose only from the averments made in the written statement and not before. Therefore, according to him, the present suit, which has been filed entirely on a fresh cause of action is not barred under Order 2 Rule 2 C.P.C. He would further contend that whether there were facts constituting sufficient cause of action to file a comprehensive suit at the first instance itself or not is to be decided only on evidence and so, the said question can not be decided as a preliminary issue.
11.I considered the rival contentions deeply and also perused the records thoroughly. At the outset, I have to state that as repeatedly held by the Hon'ble Supreme Court of India, a cause of action for a civil suit is not always made of a single fact, but, it is made of a bundle of facts. In the case on hand, prior to the filing of O.S.No.321 of 2005, there existed several facts constituting a cause of action and subsequent to the filing of the said suit there occurred several other facts. Now the question is, dehorse the facts which came into existence after the filing the said suit in O.S.No.321 of 2005, facts originally existed on or before the date of filing of the said suit, whether were sufficient to make out a clear cause of action to file a comprehensive suit for specific performance and for other reliefs or not.
12.At this juncture, the judgment of the Hon'ble Supreme Court of India relied on by the learned counsel for the respondent and reported in 2005(6) Supreme 7 (Popat and Kotecha Property v. State Bank of India Staff Association) should be referred to. In the said judgment, the Hon'ble Supreme Court has held that for a question which is similar to the one referred to above, the court is required to look only into the averments made in the plaint and the other materials available on record and not the facts stated in the written statement. There is no controversy over the said legal proposition and the said proposition of the Hon'ble Supreme Court binds this court. No doubt, the facts disputed in the written statement cannot be resolved by way of a preliminary issue. But if on admitted facts the issue could be resolved as required under Order 7 Rule 11 C.P.C., necessarily the same should be decided as a preliminary issue without allowing the parties to undergo the ordeal of trial by wasting their own time and that of the court. In this regard it is necessary to refer to paragraph 12 of the judgment of this court in Raptakos Brett and Company Pvt. Ltd. v. Modi Business Centre (Pvt.) Ltd., reported in 2006(2) CTC 799 which is as follows:
12.The real test should be whether the causes of action now urged for the present suit, were available at the time of the filing of the first suit or not.
In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non- mentioning of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of Order 2, Rule 2 of C.P.C. That apart, the relief what has been now asked for, should have been asked that time itself, but omitted to be done. Allowing the contention put forth by the learned Senior Counsel for the plaintiff that the defendant should be allowed to file the written statement raising such a defence plea; that issues have to be framed; that the parties must be allowed to let in evidence on that issues; and that the Court should decide on the same would be against the provisions under Order 2, Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to undergo the ordeal of trial. Apart from that, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his convenience, would also be against the public policy.
Therefore, the contention of the learned counsel for the respondent that the issue involved in this case on the question of maintainability should be decided only at the final conclusion of the trial and not as a preliminary issue is only to be rejected. While deciding the said issue as a preliminary issue, as rightly contended by the learned counsel for the respondent relying on the judgment of the Hon'ble Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association, at this stage, for the purpose of deciding this civil revision petition, the plaints in O.S.No.126 of 2006, and in O.S.No.321 of 2005 are taken for consideration. Besides, the written statement in O.S.No.321 of 2005 is also taken for consideration as according to the respondent the facts stated in the said statement also made out a fresh cause of action for filing O.S.No.126 of 2005. The notice and reply notice are also taken for consideration.
13.In paragraph 10 of the plaint in O.S.No.321 of 2005, the respondent has narrated the facts which made out the cause of action for filing the said suit. He has averred that the petitioners were making arrangements to sell the suit property viz. 41 cents to third parties which was thwarted by the respondent. Further, he has stated that the petitioners divulged openly that they would transfer the suit property in favour of third parties and they would achieve the said unlawful object with the help of their vast followers. These facts, in my opinion, would clearly constitute a cause of action for filing a comprehensive suit for specific performance and other reliefs. These facts would indicate that the petitioners were acting in violation of the agreement which clearly amounts to a denial on the part of the petitioners their liability to perform their part of the contract. These facts, undoubtedly, had made out a clear cause of action to file a comprehensive suit. Thus the fact which came into existence subsequent to the filing of the suit in O.S.No.321 of 2005 are only additional facts to make out a cause of action for a comprehensive suit but, as stated above, even in the absence of these facts, the facts originally existed prior to the filing of the suit in O.S.No.321 of 2005, were more than sufficient to constitute a cause of action to file a comprehensive suit for specific performance and for other reliefs.
14.To strengthen the above conclusion, it is also relevant to refer to the cause of action stated in the plaint in O.S.No.126 of 2005. In paragraph 7 of the plaint the respondent has averred as follows:
"7.Later on the plaintiff has came to know that the defendants have been negotiating the remaining extent also (ie.) the suit B Schedule property to convey the same to the third party. Therefore the plaintiff have to file a suit emergently in O.S.No.321 of 2005 on the file of the District Munsif Court, Karur for permanent injunction restraining the defendants in any way alienating the suit B Schedule property in favour of any third party. In this suit order of status quo has been granted. In view of this now this suit has been filed for specific performance with regard to the suit B Schedule property."
A reading of the above averments of the respondent would show that the present suit in O.S.No.126 of 2005 has been filed on the same cause of action on which the earlier suit in O.S.No.321 of 2005 was filed. As stated above, there are only some additional facts stated.
15.Further, the denial of their liability to perform their part of the contract made in the written statement filed by the petitioners in O.S.No.321 of 2005 does not make out any fresh cause of action for the first time impelling the respondents to file a comprehensive suit. As concluded above, there was already a clear cause of action available for the respondent to file a comprehensive suit. For these reasons, I am not able to accept the arguments of the learned counsel for the respondent that the cause of action for the suit in O.S.No.126 of 2005 is different from the cause of action for filing the suit in O.S.No.321 of 2005. As concluded above, the cause of action for both the suits is one and the same.
16.At this juncture, the judgment of the Hon'ble Supreme Court of India in Srinivas Murthy, N. V. Mariyamma (Dead) by Proposed Lrs. reported in 2005(3) CTC 545, relied on by the learned counsel for the petitioners requires to be referred to. In paragraph 13 of the judgment, the Hon'ble Supreme Court has held as follows:
"13.In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted Original Suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil Court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in Original Civil Suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure."
The principle laid down by the Hon'ble Supreme Court squarely applies to the instant case and the same clearly supports the conclusion arrived at by me supra.
17.Following the above judgment of the Hon'ble Supreme Court, this court in a case involving facts similar to the facts involved in the case on hand has held that a subsequent suit is barred under Order 2 Rule 2 of the causes of action for filing a suit for specific performance were very well available at the time of the first suit. In paragraph 12 and 13 of the said judgment in Raptakos Brett and Company Pvt. Ltd. v. Modi Business Centre (Pvt.) Ltd., reported in 2006(2) CTC 799 has held as follows:
12.The real test should be whether the causes of action now urged for the present suit, were available at the time of the filing of the first suit or not.
In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non- mentioning of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of Order 2, Rule 2 of C.P.C. That apart, the relief what has been now asked for, should have been asked that time itself, but omitted to be done. Allowing the contention put forth by the learned Senior Counsel for the plaintiff that the defendant should be allowed to file the written statement raising such a defence plea; that issues have to be framed; that the parties must be allowed to let in evidence on that issues; and that the Court should decide on the same would be against the provisions under Order 2, Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to undergo the ordeal of trial. Apart from that, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his convenience, would also be against the public policy.
13.From the materials available, it is quite clear that those causes of action were very well available on the stated facts at the time of the filing of the earlier suit. It remains to be stated that both the causes of action refer only to the agreement in question, and it is not a new agreement entered into in 1999 as put forth by the plaintiff's side; but, it is only a confirmation of the earlier agreement, as per the plaint averments. Hence, it would be abundantly clear that cause of action was very well available, but knowingly and deliberately omitted to be mentioned. This court is of the view that here is a clear case where Order 2, Rule 2, has got to be applied, and accordingly, the plaint has got to be rejected."
As found by me in the previous paragraphs of this judgment, the respondent had cause of action to file a comprehensive suit for specific performance and other reliefs. So, I have no hesitation to hold that the suit in O.S.No.126 of 2005 is barred under Order 2 Rule 2 C.P.C.
18.Yet another judgment of the Hon'ble Supreme Court relied on by the learned counsel for the petitioners is the one reported in AIR 1970 SC 1059 (Sidramappa v. Rajashetty) in paragraph 7, the Hon'ble Supreme Court has held as follows:
"The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings."
19.The learned counsel for the petitioner placed reliance on a judgment of the Bombay High Court in Gajanan R.Salvi v. Satish Shankar Gupte reported in AIR 2004 BOMBAY 455. In paragraph 6 of the judgment Bombay High Court has held as follows:
6.The learned counsel for the appellant vehimently urged that the present suit of the plaintiff is to claim specific performance of the agreement coupled with the relief of possession, but the earlier suit was for injunction simpliciter. In this way, it was sought by to be urged that plaintiff cannot be prevented by the bar of Order 2, Rule 2 of the C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment because in the eye of law, while considering the bar of Order 2, Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere comparison of the reliefs of variance in few allegation here or there would have no relevance.
On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as the present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed.
In this regard, time and again, this Court as well as the Apex Court have decided this issue on many occasions. The material principles laid down in various rulings can be summarised thus-
"(1)The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that which was the foundation for the former suit.
(2)The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. (3)If the evidence to support the two claims is different then the cause of action are also different.
(4)The cause of action in the two suits may be considered to be the same if in substance they are identical.
(5)The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the Court to arrive at a conclusion in his favour."
20. A perusal of all the above judgments of the Hon'ble Supreme Court, this Court and the Bombay High Court would show that the consistent legal position is that having failed to avail the cause of action for filing a suit for a larger relief such as suit for specific performance and for other reliefs in the earlier suit one cannot be allowed to maintain a second suit for the said relief as Order 2 Rule 2 is a clear bar. In the instant case, as I have already held, Order 2 Rule 2 operates against the respondent and as a result, the suit in O.S.No.126 of 2005 is liable to be rejected and the order of the lower court in I.A.No.39 of 2006 is liable to be set aside.
21.In the result, the order of the learned Subordinate Judge, Karur dated 04.08.2006 made in I.A.No.39 of 2006 in O.S.No.126 of 2005 is set aside. I.A.No.39 of 2006 stands allowed. The plaint in O.S.No.126 of 2005 stands rejected. Consequently, the connected M.P.s are closed. Considering the facts and circumstances of the case there shall be no order as to costs.
sj To The Subordinate Judge, Karur.