Delhi High Court
Sukh Ram Dass vs Ramesh Chand Jain on 1 April, 1997
Equivalent citations: 1997IIIAD(DELHI)133, 67(1997)DLT289, 1997(41)DRJ589
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) By this order I would be disposing of the objection to the maintainability of the suit under Order Ii Rule 2 of the Code of Civil Procedure.
(2) Plaintiff has filed the present suit for grant of a decree of specific performance of the agreement dated 4.7.1991, in respect of Flat No. 8-2/98/VI, Safdarjung Enclave, New Delhi.
(3) Written Statement to the plaint has been filed, objecting to the maintainability of the suit. One of the grounds taken is that the plaintiff had earlier filed a suit for permanent and mandatory injunction, bearing No.54/92, in the Court of Senior Sub-Judge, Delhi on the same facts and cause of action, and with a similar prayer. The said suit had been dismissed as withdrawn on the statement made by the counsel for the plaintiff. The defendant, therefore, contends that the present suit is barred under the provisions of Order Ii Rule 2 of the Code of Civil Procedure.
(4) When the present suit had come up before the Court on 25.5.1992, the question of maintainability of the suit was raised. On 27.5.1992, summons were directed to be issued, subject to the question of applicability of Order Ii Rule 2, CPC.
(5) Learned counsel for lhe parties have now been heard on lhe question of maintainability of the suit viz. the objection under Order Ii Rule 2, CPC.
(6) Let us notice the salient facts for an appreciation of the matter in issue.
(7) The plaintiffs case, in brief, is that he had paid Rs.1,00,000.00 to lhe defendant No.1 as earnest money for purchase of flat No.A-1/98/1/1, Safdarjung Enclave, New. Delhi for a total consideration of Rs.6.17 lakhs. The balance consideration of Rs.5.17 lakhs was to be paid to the defendant on or about 30.9.1991, upon completion of formalities and execution of documents. A receipt dated 4-7-1991 was executed. Defendants 2 & 3 arc brokers with the intervention of whom, the agreement was entered into. Despite the plaintiffs request defendant did not execute the sale deed. No heed was paid by defendant to the request for handing over the possession or to return double the earnest money. This led the plaintiff to file the first suit i.e. for permanent injunction and mandatory injunction before the Senior Sub Judge, Delhi. The plaintiff prayed as under: "ITis, therefore, prayed that this Hon'ble Court be pleased to pass an order restraining the defendants, particularly defendant No.1, not to sell or part with the property to any person by means of permanent injunction. It is further prayed that defendants particularly defendant No.l be directed to implement agreement dated 4.7.1991 or to may be directed to pay damages."
(8) Plaintiff withdrew the suit before the Senior Sub-Judge on 28.4.1992 after making the following statement: "I withdraw the suit on instructions from my client. sd/- Plaintiffs Advocate. Order: "In view of the statement made by the counsel for the plaintiff the suit is dismissed as withdrawn. Parties are left to bear their own costs. File be consigned to record."
(9) The plaintiff then instituted the present suit for specific performance on 8.5.1992. It would be relevant to reproduce what the plaintiff averred with regard to the earlier suit instituted, in the present suit. Para 13 of the plaint reads as under: "THAT the plaintiff was ill-advised to file a suit for injunction in the trial court wherein a plea of mandatory injunction was also asked for in regard to the agreement dated 4th July 1991 indirectly asking for specific performance wherein the total value of the contract for sale is Rs.6.17 lakhs, which is much beyond the territorial jurisdiction of the trial courts. One of the objections raised in the written statement in the said suit was lack of territorial jurisdiction. Upon taking proper advice, the plaintiff withdrew the said suit on 28th April, 1992 and the plaintiff is, thus, instituting the present suit. The earlier suit of the plaintiff was even incompetent and not legally maintainable."
(10) Counsel for the plaintiff submits that the words used in para 13 of the plaint, viz. "beyond the territorial jurisdiction of the trial court" and "lack of territorial jurisdiction" have been wrongly typed and it should correctly read as "beyond the pecuniary jurisdiction of the trial court" and "lack of pecuniary jurisdiction". Learned counsel for the defendant has no objection to the same.
(11) It is the admitted position between the parties that the facts and cause of action in both the suits arc identical. Learned counsel for the plaintiff submits that though the first suit filed before the Senior Sub-Judge was labelled as for permanent and mandatory injunction, it was in substance a suit where implementation of the agreement was sought, i.e. a suit for specific performance of the agreement. The learned Senior Sub-Judge was not competent to grant the relief of specific performance as it lacked the pecuniary jurisdiction to grant the relief of specific performance, the sale consideration being Rs.6.17 lakhs. It is, therefore, urged that the bar of Order Ii Rule 2 Civil Procedure Code would not apply. Besides the defendant himself having objected to the jurisdiction of the Senior Sub-Judge cannot now be permitted to approvable and reprobate and object to the maintainability of the present suit. Lastly, it is submitted that since the first suit was not decided on merits, the bar of Order Ii Rule 2 Cpc should not apply. Reliance is placed in this regard on the decision of the Punjab and Haryana High Court in Avinish Singh & Ors Vs. Lajwanti Kaur & Anr (AIR 1977 Punjab & Haryana 1).
(12) On the other hand,lcarncd counsel for the defendant has submitted that the second suit is hit by bar of Order Ii Rule 2 CPC. The cause of action for the relief of specific performance had admittedly arisen and if the plaintiff failed to seek the said relief in the first suit, the present suit for the same would be barred. It is submitted that the plaintiff singularly failed to seek leave of the Court to institute a fresh suit, while seeking its withdrawal. It is contended that there was no lack of inherent jurisdiction and the Court of Senior Sub-Judge who was competent to grant the relief that has been sought from it. Learned counsel argued that it was only in cases of lack of inherent jurisdiction, where the bar under Order Ii Rule 2 Civil Procedure Code would not apply to the second suit. The plaintiff having failed to seek leave of the Court for institution of the present suit, the second suit was barred. Besides this was not a case where the plaint had been returned on account of a formal defect for presentation to a competent court.
(13) As noticed earlier, it is the admitted position of the parties that in the in slant case the claims arose out of the same cause of action. The plaintiff in the first suit before the Senior Sub-Judge had sought the implementation of the agreement which would in substance amount to seeking specific performance of the agreement. It is not disputed that the Senior Sub-Judge did not have the pecuniary jurisdiction to entertain the suit for specific performance and grant the relief in the instant case. The same was beyond his pecuniary jurisdiction, the sale consideration being Rs.6.17 lakhs. It is well settled that if the Court in which the first suit is instituted docs not have the jurisdiction to try and entertain the said suit, the bar of Order Ii Rule 2 Civil Procedure Code would not apply to the competent court in which the second suit is instituted. In addition, in this case, it is seen that it was the defendant who has raised an objection to the lack of jurisdiction of the Court to try the suit. The plaintiff, accordingly, sought to withdraw the suit and instituted the present suit seeking the relief of specific performance inform as well as substance. There is considerable merit in Mr. Gupta's submission that the defendant cannot be permitted to approbate and reprobate and thereby defeat the ends of justice especially when there has been no decision in the suit on merits, which could have operated as a bar to the on institution of the second suit based on the principles of res judicata.
(14) In a case like the present one, it can be urged that the Court itself should have returned the plaint under Order Vii Rule 10 Civil Procedure Code for presentation of the same before a competent Court instead of the plaintiff withdrawing the suit. Simply because, the plaintiff did not seek the permission under Order Xxiii Rule 3 Civil Procedure Code for withdrawal of the suit with liberty to institute fresh suit, the second suit should not be barred. The omission of the plaintiff should not come in the way of substantial justice being done in the mailer specially when I have otherwise reached the conclusion that the earlier suit in substance was one for specific performance and the Court of the Senior Sub-Judge lacked the pecuniary jurisdiction to entertain the same and accordingly, the bar under Order Ii Rule 2 Civil Procedure Code would not apply. Accordingly, the preliminary issue is decided in favour of the plaintiff and against the defendant. It is held that the present suit is not barred under provision of Order Ii Rule 2 CPC.