Delhi High Court
Kamal Kishore Saboo vs Nawabzada Humayun Kamal Hasan Khan on 2 February, 2001
Equivalent citations: 2001IIAD(DELHI)635, AIR2001DELHI220, 90(2001)DLT45, 2000(57)DRJ617, AIR 2001 DELHI 220, (2001) 57 DRJ 617, (2001) 3 CIVILCOURTC 132, (2001) 3 RECCIVR 565, (2001) 4 CIVLJ 177, (2001) 90 DLT 45
Author: A.K. Sikri
Bench: Arun Kumar, A.K. Sikri
ORDER A.K. Sikri, J.
1. Arguments in this case were heard on 10th January, 2001 and judgment was reserved. However, at that stage counsel for both the parties had requested that the judgment be held over for at least two weeks in order to give an opportunity to the parties to reach an amicable settlement regarding the controversy in the suit. More than two weeks have passed. However, there is no information about any settlement having been reached between the parties. We accordingly proceed to pronounce the judgment.
2. An Agreement to Sell dated 5th January, 1991 in respect of properties bearing nos.636, 637-1/2, 641-1/2 and 642 situated at Chandni Chowk was alleged to have been executed between the appellant and respondent. As per that Agreement, respondent had agreed to sell the aforesaid properties to the appellant for a total consideration of Rs.3.80 lakhs. Rs.50,000/- was paid by the appellant to the respondent as earnest money. Respondent was to obtain income tax clearance from the Income-tax Department.
3. The appellant herein filed Suit No.863/98 which was a suit for permanent injunction against the respondent herein in the Court of Senior Civil Judge, Delhi. After mentioning about the aforesaid Agreement to Sell, the appellant made certain averments which are noted in the later part of this judgment. It was also alleged in the said suit that on 6th November, 1998 when the appellant was sitting in the business premises of M/s.Saboo Silks & Sarees, two persons came to the said business premises, one of them claiming to be a property dealer and the other claiming to be the intending buyer of the said property. The appellant, therefore, filed the said suit for injunction seeking decree of permanent injunction restraining the respondent from alienating by way of sale, mortgage, gift, exchange or otherwise all that portion of the suit properties. In the said suit status quo order dated 16th November, 1998 was passed by the Court of Shri A.K.Chaturvedi, Civil Judge, Delhi.
4. While this suit was pending, appellant filed another Suit No.93/99 (out of which present appeal arises). This suit was for specific performance of the contract and the appellant prayed for decree of specific performance of Agreement to Sell dated 5th January, 1991 thereby directing the respondent to transfer the ownership of the suit properties in the name of the appellant by duly executing and registering Sale Deed and to attorn the tenants therein in favor of the appellant after due intimation to such tenants.
5. By the impugned judgment dated 28th May, 1999, learned Additional District Judge had been pleased to reject the plaint on the ground that this suit was barred by the provisions of Order II Rule 2 of Code of Civil Procedure. It is held that the cause of action for a suit for specific performance had arisen when the first suit, namely, Suit No.863/98 was filed and, therefore, the appellant should have included this relief in the said suit itself. By omitting to do so, the appellant had precluded himself from suing for this relief afterwards and, therefore, the second suit was not maintainable.
6. The learned counsel for the appellant in challenging the reasoning of the learned trial Court submitted that the cause of action at the time of filing the first suit was not same on which the instant suit for specific performance was filed. His submission was that the respondent was trying to sell the properties to some third party and the appellant had no option but to file the suit for injunction at that point of time, seeking restraint order against the respondent from selling the properties to third party. It is only in the written statement filed in the first suit that the intention of the respondent became clear to the effect that he did not want to sell the properties to the appellant and that is why appellant filed the second suit for specific performance. The said second suit is, therefore, founded on a different cause of action which is based on the stand taken by the respondent in his written statement filed in the first suit.
7. We are afraid the aforesaid contention of the counsel for the appellant is not based on the facts of this case. The first suit, namely, Suit No.863/98 which was filed by the appellant is founded on the following averments:
A. The respondent was to duly execute the Sale Deed and get the properties registered in the name of the appellant after completing all formalities within a time span of six months from the date of execution of the Agreement to Sell dated 5th January, 1991. Thus, according to him the formalities were to be completed by 5th July, 1991. (Even the first suit was filed on 11th November, 1998 i.e. more than 7 years and 10 months after the date of Agreement).
B. In para-4 of the plaint it is stated that the respondent with mala fide intents to cheat and to defraud the appellant had failed to perform his part of the Agreement.
C. The appellant had served legal notice dated 24th June, 1996 calling upon the respondent to obtain necessary income-tax and other clearances from the statutory authorities and thereafter arrange for registration of the said properties in the name of the appellant.
D. On 6th November, 1998 when the appellant was sitting in his business premises, two persons came, one of them claiming to be a property dealer and the other claiming to be the intending buyer of the said properties and told him that they intend to purchase the properties and respondent had authorised them to inspect the properties and negotiate and finalise the deal.
E. Thereafter, appellant repeatedly tried to contact the respondent in order to once again request him to expedite conveyance of the said properties to the appellant but all in vain as the respondent was evading all means of communication.
8. After stating the aforesaid facts, para-9 of the plaint relating to cause of action reads as under:
9. "That the cause of action first arose on 5th January, 1991 when the respondent entered into an Agreement to Sell regarding the sale of the said properties with the appellant. Thereafter, it is arising on each and every day of the existence and subsistence of the said Agreement to Sell due to its non-performance by the respondent. Moreover, the cause of action arose on each and every occasion when the appellant demanded from the respondent performance of his part of the said Agreement. It again arose on 24th June, 1996 when the appellant caused a legal notice to be served upon the respondent. It, more specifically, arose on 6th November, 1998 when two unknown persons tried to inspect a part of the said properties, claiming to be doing so by and at behest of the respondent herein with intention to purchase the same from the respondent."
9. From the aforesaid averments in plaint in the first suit filed by the appellant, it is clear that appellant had pleaded that the respondent was not adhering to the terms of Agreement to Sell. With intention to cheat and defraud the appellant he was not performing his part of the contract. He had not done the needful in spite of legal notice dated 24th June, 1996. Not only this, even it was pleaded that he was trying to sell the properties to some other party. Thus according to the averments contained in the said plaint itself cause of action for seeking relief of specific performance had ripened as according to the appellant respondent had failed to perform his part of the contract. Still the appellant chose to file the suit claiming relief of permanent injunction only when on the basis of aforesaid bundle of facts, he could also claim the relief of specific performance as well. Once he omitted to claim the relief of specific performance, second suit for this relief is clearly not maintainable in view of provisions of sub-Rule-3 of Rule-2 Order-II of CPC which read as under:
2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(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; 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.
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."
10. The circumstances did not change between the first suit and the second suit. In fact second suit is also based on same averments. However, interestingly a clever device is adopted to show as if the intentions of the respondent came to be known only from the written statement filed in the first suit which has been made as the basis of cause of action for filing the second suit. Such ingenuinity cannot be permitted when the averments made in the first suit and a cause of action disclosed therein clearly state that respondent was not willing and had failed to perform his part of the contract. Counsel for the appellant relied upon the judgment of the Supreme Court in the case of Gurbux Singh Vs. Bhooralal as well as two judgments of this Court, namely, Sukh Ram Dass Vs. Ramesh Chand Jain ; Mrs.Pampa Mukherjee Vs. URI Civil Contractor A.B. . None of these judgments are applicable to the facts of this case. In all the afore-quoted cases the Court had come to the conclusion that the second suit which was filed was based not on same cause of action on which first suit was filed but on a cause of action which had accrued subsequent to the filing of the first case. This is not the position in the instant case.
11. The appeal is, therefore, without any merit and is hereby dismissed with costs.