Delhi High Court
Sucha Singh Sodhi (Deceased) Throurh ... vs Baldev Raj Walia & Anr on 18 February, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th February, 2014.
+ RFA 353/2012
SUCHA SINGH SODHI (DECEASED)
THROURH LRS ...........Appellant
Through: Mr. Bheem Sain Jain, Adv.
Versus
BALDEV RAJ WALIA & ANR ..... Respondents
Through: Mr. S.K. Bhaduri & Ms. Kiran
Dharam, Advs. for R-1.
Mr. B.B. Gupta & Mr. Udyan
Srivastava, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The appeal impugns the judgment and decree dated 8th May, 2012 of
dismissal of CS No.135/2008, instituted on 25th February, 1999, by Sh.
Sucha Singh Sodhi, predecessor-in-interest of the four appellants, for
specific performance of an Agreement of Sale of immovable property,
consequent to rejection (under Order VII Rule 11 of Civil Procedure Code
(CPC), 1908 and on a preliminary issue framed in that regard) of the plaint
as barred by Order II Rule 2 of the CPC.
2. The appeal was accompanied with an application for condonation of
68 days delay in re-filing the same. Notice only of the said application was
RFA No.353/2012 Page 1 of 34
issued to the two respondents. The respondent No.1 was proceeded against
ex-parte in the appeal. However, on 26th November, 2013 the counsels for
each of the two respondents appeared and after hearing them, the delay in
re-filing the appeal was condoned and the appeal admitted for hearing and
considering the nature of the controversy, arguments were finally heard in
the appeal and the judgment reserved.
3. The predecessor-in-interest of the appellants, on 25th February, 1999
as aforesaid, instituted the suit from which this appeal arises, only against
the respondent/defendant No.1 Sh. Baldev Raj Walia, pleading:
(i) that the respondent/defendant No.1 vide Agreement to Sell
dated 27th February, 1996 had agreed to sell the building consisting of
basement and half portion of the first floor constructed on Plot No.1,
admeasuring 169 sq. yds. situated in Gali No.9, Sanwal Nagar P.O.
Raipur Khurd, New Delhi to the predecessor-in-interest of the
appellants for a consideration of Rs.11,50,000/- out of which a sum of
Rs.2,00,000/- was paid at the time of Agreement to Sell and the
balance Rs.9,50,000/- was payable within 120 days;
(ii) that the respondent/defendant No.1 on 29th February, 1996 i.e.
within two days of the Agreement to Sell took a further sum of
RFA No.353/2012 Page 2 of 34
Rs.2,00,000/- in cash from the predecessor-in-interest of the
appellants/plaintiffs, leaving a balance sum of Rs.7,50,000/- to be
paid at the time of execution and registration of title deed and also
delivered possession of the property agreed to be sold to the
predecessor-in-interest of the appellants/plaintiffs;
(iii) that the predecessor-in-interest of the appellants/plaintiffs after
so taking over possession, carried out extensive repairs, additions and
alterations in the basement as well as in the half portion of the first
floor at a cost of Rs.4,00,000/-;
(iv) that though the predecessor-in-interest of the
appellants/plaintiffs was always ready and willing to perform his duty
and in this regard approached the respondent/defendant No.1 several
times but the respondent/defendant No.1 avoided the same;
(v) that on 10th May, 1996, the respondent/defendant No.1
requested for payment of a further sum of Rs.50,000/- out of sale
consideration but the predecessor-in-interest of the
appellants/plaintiffs was reluctant since the respondent/defendant
No.1 had been avoiding completion of transaction; however the
respondent/defendant No.1 handed over all the original
RFA No.353/2012 Page 3 of 34
papers/documents relating to the property and also agreed to complete
the transaction at the earliest and in consideration whereof, the
predecessor-in-interest of the appellants/plaintiffs paid a further sum
of Rs.36,000/- in cash on 10th May, 1996;
(vi) that however the respondent/defendant No.1 issued letters
dated 22nd June, 1996 and 24th June, 1996 stating that the period of
120 days agreed for completion of the transaction was over and as the
balance sale consideration had not been paid, the Agreement dated
27th February, 1996 automatically stood cancelled and the advance
paid of Rs.2,00,000/- forfeited;
(vii) that the time of 120 days stipulated in the Agreement to Sell
was not the essence of the contract;
(viii) that apprehending alienation of the property and threat to his
possession over the property, the predecessor-in-interest of the
appellants/plaintiffs on 5th October, 1996 filed a suit in the Court of
the Civil Judge, Delhi against the respondent/defendant No.1 for
permanent injunction but the said suit was withdrawn on 27 th
November, 1998 with liberty to file proper suit before a proper forum;
(ix) that the predecessor-in-interest of the appellants/plaintiffs had
RFA No.353/2012 Page 4 of 34
always been ready and willing to perform his part of the Agreement;
4. The respondent/defendant No.1 contested the suit by filing a written
statement, on the grounds:
(a) that the suit was barred by Order II Rule 2 of the CPC owing to
the predecessor-in-interest of the appellants/plaintiffs having earlier
filed a suit for injunction and which suit was dismissed as withdrawn;
that the cause of action, if any for the relief of specific performance
had already been waived by the predecessor-in-interest of the
appellants/plaintiffs by not claiming the said relief of specific
performance in the earlier suit;
(b) that the respondent/defendant No.1 had prior to the institution
of the suit sold the property to Sh. Sanjay Ahuja on 16 th August, 1996
and delivered possession thereof to the said Sh. Sanjay Ahuja and the
suit against the respondent/defendant No.1 was thus infructuous;
(c) denying that there was any Agreement to Sell dated 27 th
February, 1996 and pleading that the predecessor-in-interest of the
appellants/plaintiffs had on 27th February, 1996 given a friendly loan
of Rs.2,00,000/- to the respondent/defendant No.1 and in
consideration thereof, obtained a letter dated 27th February, 1996 from
RFA No.353/2012 Page 5 of 34
the respondent/defendant No.1 and with the understanding that on
return of the loan, the said letter will be destroyed;
(d) that the said letter dated 27th February, 1996 signed by the
respondent/defendant No.1 only did not constitute an Agreement in
law;
(e) that the predecessor-in-interest of the appellants/plaintiffs
however subsequently turned dishonest and refused to receive refund
from the respondent/defendant No.1 of the loan of Rs.2,00,000/-;
(f) that on an earlier occasion, the respondent/defendant No.1 and
his other partner has mortgaged part of the ground floor in favour of
the predecessor-in-interest of the appellants/plaintiffs and during that
time some documents in respect of the property were also given to the
predecessor-in-interest of the appellants/plaintiffs;
(g) that the predecessor-in-interest of the appellants/plaintiffs even
otherwise was in breach of the terms of the letter dated 27 th February,
1996;
(h) denying receipt of further amounts of Rs.2,00,000/- and
Rs.36,000/- in cash;
RFA No.353/2012 Page 6 of 34
(i) denying delivery of possession of the property to the
predecessor-in-interest of the appellants/plaintiffs or that any works
had been carried out therein;
(j) that even if the letter dated 27th February, 1996 was to be
treated to be an Agreement to Sell, the predecessor-in-interest of the
appellants/plaintiffs having failed to pay the entire sale consideration
within the period of 120 days, as mentioned therein, was not entitled
to sue for specific performance;
(k) denying that any documents of title of the property were
handed over on 10th May, 1996;
(l) denying that the predecessor-in-interest of the
appellants/plaintiffs was ever in a position to pay the balance amount,
as per the letter dated 27th February, 1996;
(m) that the respondent/defendant No.1 had sent the letters dated
22nd June, 1996 and 24th June, 1996 to prevent the predecessor-in-
interest of the appellants/plaintiffs from misusing the letter dated 27 th
February, 1996;
(n) that had there been any Agreement to Sell between the parties,
the predecessor-in-interest of the appellants/plaintiffs should have
RFA No.353/2012 Page 7 of 34
immediately on receipt of the letters dated 22nd June, 1996 and 24th
June, 1996, offered the balance sale consideration;
(o) denying that any liberty was given to the predecessor-in-
interest of the appellants/plaintiffs while withdrawing the earlier suit
for injunction to file the suit for specific performance;
(p) denying that predecessor-in-interest of the appellants/plaintiffs
had been ready and willing.
5. Sh. Sucha Singh Sodhi predecessor-in-interest of the
appellants/plaintiffs died soon after the institution of the suit and the
appellants were substituted in his place vide order dated 11 th November,
2003. Upon the respondent/defendant No.1 filing the written statement
aforesaid with the plea of having sold the property, he was vide order dated
18th March, 2004 directed to furnish full particulars of the purchaser. The
appellants/plaintiffs thereafter filed an application for impleadment of the
said purchaser as defendant No.2 and which application was allowed on 22 nd
March, 2007. Though notice to the respondent/defendant No.2 Sh. Sanjay
Ahuja was sent also of the application under Order I Rule 10 CPC for his
impleadment and in which he had been proceeded against ex-parte but
pursuant to his impleadment and upon issuing of fresh notice of the suit to
RFA No.353/2012 Page 8 of 34
him, he appeared and filed his written statement on 10 th October, 2008, on
the same lines as the written statement of the respondent/defendant No.1 and
additionally pleading that though the predecessor-in-interest of the
appellants/plaintiffs was informed of the sale of the property in favour of the
respondent/defendant No.2 in the written statement dated 20th November,
1996 filed by the respondent/defendant No.1 in the earlier suit for injunction
but still did not implead the respondent/defendant No.2 in the suit for
specific performance and also did not take any action for impugning the
transfer by the respondent/defendant No.1 of the property to the
respondent/defendant No.2 and the suit against the respondent/defendant
No.2 was thus barred by time.
6. The appellants/plaintiffs filed replication to the written statement of
the respondent/defendant No.2 but need is not felt to advert thereto.
7. On the pleadings of the parties, the following issues were framed in
the suit on 23rd October, 2009:
"1. Whether the plaintiff is entitled to specific performance of
the agreement to sell dated 27.02.1996 in respect of the suit
property constituted in plot bearing no.1, Gali No.9, Sanwal
Nagar, P.O. Raipur Khurd, New Delhi, measuring 169 sq. yds?
OPP
2. Whether the plaintiff is estopped from filing the present
suit? OPD
RFA No.353/2012 Page 9 of 34
3. Whether the suit is liable to be rejected u/O 7 Rule 11
CPC? OPD
4. Whether the suit is bared u/O 2 Rule 2 CPC?
OPD
5. Whether the suit is barred by limitation? OPD
6. Whether no cause of action accrued to the plaintiff for
filing the present suit? OPD
7. Relief."
8. The respondent/defendant No.2 along with his written statement had
also filed an application under Order VII Rule 11 of the CPC for rejection of
the plaint as barred by Order XXIII Rule 1 and Order II Rule 2 of the CPC
Notwithstanding the framing of the issues, the said application was directed
to be heard.
9. The learned Additional District Judge (ADJ), by the impugned order
has decided Issue No.4 supra and allowed the application under Order VII
Rule 11 of the CPC and held the suit filed by the predecessor-in-interest of
the appellants/plaintiffs to be barred by Order II Rule 2 of the CPC,
finding/observing/holding:
(A) that admittedly the predecessor-in-interest of the
appellants/plaintiffs has earlier filed a suit for permanent injunction on
11th October, 1996, based upon the same facts;
RFA No.353/2012 Page 10 of 34
(B) that the predecessor-in-interest of the appellants/plaintiffs on
27th November, 1998 made a statement before the learned Civil Judge,
Delhi before whom the said suit for injunction was pending, that he
wanted to withdraw the said suit and the said suit was disposed of
with the following order:
"It is submitted by the counsel for plaintiff that he wants
to withdraw the suit from this court to be filed before the
appropriate forum. Counsel for defendant has no
objection for withdrawal of the suit by the plaintiff,
however asking for cost incurred.
Statements of both the parties have been recorded
separately. Parties shall be bound by their statements as
undertakings in the court.
I have perused the records of the file and statements of
both the parties. The plaintiff is allowed to withdraw the
suit subject to cost of Rs.500/- to be paid to the defendant.
Cost paid in the court.
After completion, file be consigned to the record room."
(C) that from a perusal of the aforesaid order, it was apparent that
no opportunity was granted to the appellants/plaintiffs to file a
separate suit for specific performance based upon the same cause of
action;
(D) that this Court in Ashok Aggarwal Vs. Bhagwan Das Arora
AIR 2001 Delhi 107 has held that when in the plaint in the earlier suit
RFA No.353/2012 Page 11 of 34
for injunction also, it is averred that the defendant was not performing
the Agreement to Sell and was trying to sell the property to some
other party and when there is no change in circumstances between the
first and the second suit for specific performance, the second suit is
barred by Order II Rule 2 of the CPC and the said judgment applied
squarely to the facts of the present case, since while dismissing the
suit for injunction earlier filed, the appellants/plaintiffs were not
granted any leave to sue for the relief of specific performance;
(E) that the earlier suit for injunction was based upon the same
bundle of facts and cause of action;
(F) that the appellants/plaintiffs had not sought any amendment of
the plaint to make any averment against the respondent/defendant
No.2 and there were thus no allegation/relief sought against the
respondent/defendant No.2 and the suit did not disclose any cause of
action against the respondent/defendant No.2 and the plaint qua the
respondent/defendant No.2 was liable to be rejected on this ground
also.
10. The counsel for the appellants/plaintiffs has:
(I) invited attention to the Agreement to Sell dated 27th February,
RFA No.353/2012 Page 12 of 34
1996 in hand and the typed version whereof is as under:
"I BALDEV RAJ WALIA S/o Shri Munshi Ram Walia, R/o D-
36, Pandav Nagar, New Delhi is joint owner property bearing
No.9 measuring 169 sq. yards situated at Sanwal Nagar P.O.
Raipur Khurd, New Delhi. S.S. Sodhi S/o K.S. Sodhi R/o 2/31
Kalkaji Extension, New Delhi. I agreed to sold my share to Mr.
S.S. Sodhi S/o K.S. Sodhi R/o 2/31, Kalkaji Extension, New
Delhi for Rs.11,50,000/- (Eleven Lakh Fifty Thousand only),
received cheque Rs.2,00,000/- (Rs. Two Lakh only) as advance
payment. The balance Rs.9,50,000/- (Rs. Nine Lakh Fifty
Thousand) will be made within 120 days. Advance of Rs. 2 lakh
(Rs. Two Lakh) made vide Cheque No.368119 drawn on United
Bank of India, Lajpat Nagar.
Dated 27/2/96
Sd/-
27/2/96"
(II) argued that the suit for specific performance instituted on 25th
February, 1999 was within three years of the Agreement to Sell;
(III) invited attention to the statements of Sh. Sucha Singh Sodhi
predecessor-in-interest of the appellants and of the counsel for the
respondent/defendant No.1 recorded on 27th November, 1998 in the
injunction suit and which are as under:
"Statement of Sh. Sucha Singh, Plaintiff in the presence
of Counsel Sh. K.S. Kataria.
On S.A.
RFA No.353/2012 Page 13 of 34
I want to withdraw the suit for Injunction as I want to file
the appropriate proceedings before the competent forum.
As the suit is lacking for jurisdiction in this court. I am
allowed to withdraw the suit with liberty to file it with the
appropriate forum.
RO & AC
CJ Delhi.
Statement of Counsel Sh. D.K. Gupta for the defendant
without oath:-
I have heard the statement of the plaintiff in the presence
of his counsel. I have no objection for withdrawal subject
to cost incurred by the defendant for contesting the suit
for a long period.
RO & AC
CJ Delhi."
(I may mention that the counsel for the respondent/defendant No.1
has also acknowledged receipt of Rs.500/- as costs on the sheet on
which his statement aforesaid was recorded)
(IV) invited attention to the plaint dated 11th October, 1996 in the
suit for injunction and contended that the cause of action for the relief
claimed in the suit from which this appeal arises for the relief of
specific performance was different from the cause of action for the
relief claimed in the earlier suit for injunction;
RFA No.353/2012 Page 14 of 34
(V) relied on judgment dated 2nd July, 2008 of this Court in I.A.
No.2950/2005 in CS(OS) No.1132/2004 titled Sh. Suresh Kakkar Vs.
Sh. Mahender Nath Kakkar to contend that the plea of Order II Rule
2 of the CPC cannot be decided at the stage of Order VII Rule 11 of
the CPC.
11. Per contra, the counsel for the respondent/defendant No.2 has
contended:
(a) that the predecessor-in-interest of the appellants/plaintiffs in the
plaint dated 11th October, 1996 in the earlier suit for injunction
admitted receipt of notices dated 22nd June, 1996 and 24th June, 1996
from the respondent/defendant No.1 to the effect that time of 120 days
for completion of the sale had expired and on the failure of the
predecessor-in-interest of the appellants/plaintiffs to pay the balance
sale consideration, the advance paid of Rs.2,00,000/- had been
forfeited and wherefrom it is evident that the cause of action for the
relief of specific performance had accrued to the predecessor-in-
interest of the appellants/plaintiffs;
(b) that the predecessor-in-interest of the appellants/plaintiffs was
in the written statement filed by the respondent/defendant No.1 to the
RFA No.353/2012 Page 15 of 34
earlier suit for injunction informed of the respondent/defendant No.2
being in possession of the property from 16th August, 1996 and
execution on 16th August, 1996 in favour of the respondent/defendant
No.2 of the Agreement to Sell, General Power of Attorney, Affidavit
etc. with respect to the property but still did not implead the
respondent/defendant No.2 as defendant in the suit for specific
performance and the suit insofar as against the respondent/defendant
No.2, instituted on the date of his impleadment i.e. 22nd March, 2007
was barred by time;
(c) reliance is placed on Azhar Sultana Vs. B. Rajamani (2009) 17
SCC 27 to contend that from the respondent/defendant No.1 being in
possession of the property, the appellants/plaintiffs are deemed to
have notice under Section 3 of the Transfer of Property Act, 1882 of
creation of rights in the property in his favour and the
appellants/plaintiffs inspite thereof did not implead him as defendant
in the suit for specific performance and are not entitled to the relief of
specific performance on this ground alone.
12. The respondent/defendant No.2 having not pleaded execution of any
sale/transfer deed of the property by the respondent/defendant No.1 in his
RFA No.353/2012 Page 16 of 34
favour, it was enquired from the counsel for the respondent/defendant No.2
during the hearing, whether not in view of the judgment of the Supreme
Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (2012)
1 SCC 656, the respondent/defendant No.2 was not even required to be
joined as a party to the conveyance of the property in favour of the
appellants/plaintiffs, in the event of the appellants/plaintiffs ultimately
succeeding in the suit and if so, how the question of limitation raised, was
relevant. In response thereto, the counsel for the respondent/defendant No.2
has after the close of hearing filed copy of a judgment of a learned Single
Judge of this Court in Hardip Kaur Vs. Kailash 193 (2012) DLT 168 where
after considering the said dicta of the Supreme Court, it was held that though
a purchaser of immovable property vide Agreement to Sell, Power of
Attorney etc. may not be a classical owner as would be an owner under
registered Sale Deed but still he would have better rights/entitlement to
possession than the person who is in actual physical possession.
13. The counsel for the respondent/defendant No.2 after close of hearing
has also filed copy of a judgment of a learned Single Judge of Gauhati High
Court in Smt. Usha Rani Banik Vs. Haridas Das AIR 2005 Gauhati 1
laying down that where the earlier title suit seeking confirmation of
RFA No.353/2012 Page 17 of 34
possession and for permanent injunction is based on the same cause of
action as mentioned in the subsequent suit for specific performance, the
subsequent suit is hit by the provisions of Order II Rule 2 CPC.
14. As far as the contention raised by the counsel for the
respondent/defendant No.2 of the suit insofar as against the
respondent/defendant No.2 being barred by time is concerned, neither has
the learned ADJ given any finding thereon nor is the respondent/defendant
No.2 found to have taken the same as a ground in his application under
Order VII Rule 11 of the CPC for rejection of the plaint, which was sought
only on the grounds of the plaint being barred by Order XXIII Rule 1 and
Order II Rule 2 of the CPC and not disclosing any cause of action against
respondent/defendant no.2. In this appeal, no enquiry for the first time on
the aspect can be entertained and the ambit of this appeal is limited to
gauging the correctness of the conclusion arrived at by the learned ADJ of
the suit for specific performance being barred under Order II Rule II CPC
owing to the earlier suit for injunction filed by the appellants/plaintiffs and
on the ground of the plaint not disclosing any cause of action against the
respondent/defendant No.2 for the reason of the appellants/plaintiffs inspite
of impleading the respondent/defendant No.2, not amending the plaint to
RFA No.353/2012 Page 18 of 34
incorporate any pleas or reliefs therein qua/against the respondent/defendant
No.2.
15. I may at the outset deal with the contention of the counsel for the
appellants/plaintiffs of the plea of Order II Rule 2 CPC being not
entertainable at the stage of Order VII Rule 11 of the CPC and which
contention is founded on the judgment of a learned Single Judge of this
Court in Sh. Suresh Kakkar supra. However Sh. Suresh Kakkar in turn
relies on Gurbux Singh Vs. Bhooralal AIR 1964 SC 1810 and Bengal
Waterproof Ltd. Vs. Bombay Waterproof Manufacturing Company (1997)
1 SCC 99.
16. Though the Supreme Court in Gurbux Singh supra undoubtedly held
that a plea under Order II Rule 2 CPC cannot be made out except on proof
of the plaint in the previous suit, the filing of which is said to create the bar
and that such plea of Order II Rule 2 CPC is a technical bar it has to be
established satisfactorily and cannot be presumed merely on the basis of
inferential reasoning and can be established only if the defendant files in
evidence the pleadings in the previous suit and proves to the Court the
identity of the cause of action in the two suits but it came to be so held in the
face of the Suit Court in that case rejecting the plaint as barred by Order II
RFA No.353/2012 Page 19 of 34
Rule 2 CPC without the plaint or other pleadings in the earlier suit being
before the Court. The learned ADJ in the first appeal set aside the said order
holding that without the pleadings in the earlier suit, it could not be known
what the precise allegations of the plaintiff in his previous suit were. The
second appeal by the defendant to the High Court met with no success. The
Supreme Court in its judgment observed that the original of the plaint in the
earlier suit was not before the Supreme Court also and so it was not possible
to verify whether the English translation placed before the Supreme Court
was accurate or not.
17. Similarly, in Bengal Waterproof Ltd. supra also, the pleadings in the
first suit had not been filed and it was owing thereto that it was held in the
absence of pleadings in the first suit, the plea of Order II Rule 2 of the CPC
raised by the defendant was completely barred at the threshold as the bar of
Order II Rule 2 CPC could not be culled out from the plaint in the second
case and without the pleadings in the earlier suit being brought on record.
18. In Sh. Suresh Kakkar supra, though the plaint in the earlier suit was
before the Court but the earlier suit had been filed only by one of the two
plaintiffs in the second suit and all the defendants in the second suit were
also not the defendants in the earlier suit and it was in this factual situation
RFA No.353/2012 Page 20 of 34
that following the two judgments aforesaid of the Supreme Court, it was
held that the bar of Order II Rule 2 of the CPC could not be adjudicated
under Order VII Rule 11 of the CPC.
19. Per contra, the appellants/plaintiffs in the plaint in the suit from which
this appeal arises not only admitted to institution of the earlier suit for
injunction but also filed before the Court the certified copies of the
statements aforesaid made on 27th November, 1998 in the earlier suit and the
order of the same date therein. Though the appellants/plaintiffs had not filed
the pleadings in the earlier suit for injunction, but the respondent/defendant
No.1 filed before the Court, the certified copies of the pleadings in the
earlier suit. Thus, at the time when the learned ADJ dealt with and decided
the application under Order VII Rule 11 of the CPC, he had before him, the
certified copies of the pleadings in the earlier suit as well is the order of
withdrawal thereof and which were admitted documents and about which
there was no controversy.
20. I am of the view that the judgment of this Court in Sh. Suresh Kakkar
in turn relying on the Supreme Court judgments in Gurbux Singh and in
Bengal Waterproof Limited supra holding that the plea of Order II Rule 2
CPC cannot be decided at the stage of Order VII Rule 11 CPC, in the
RFA No.353/2012 Page 21 of 34
context of cases where the Court at the time of considering the plea under
Order VII Rule 11 CPC did not have on its record the pleadings in the
earlier suit on the basis whereof the plea of Order II Rule 2 CPC was
invoked, cannot apply to a factual situation as in the present case where not
only are the pleadings and the order in the earlier suit on record and there is
no controversy about the same but there is also a statement in the plaint in
the suit from which this appeal arises about the institution of the earlier suit
and withdrawal thereof. Though the appellants/plaintiffs pleaded that the
said withdrawal was with the permission of the Court but it has to be
determined from the order of the Court from which the earlier suit was
withdrawn, whether such permission was granted or not.
21. This Court in Sanjay Kaushish Vs. D.C. Kaushish 48 (1992) DLT
414 in para 16 has held that from a bare reading of the plaint and the
'admitted documents' and the facts coming out in the statement recorded
under Order X of the CPC, the Court could come to the conclusion that the
plaint does not disclose a cause of action or the suit is barred by limitation or
otherwise not maintainable; the Court can decide the said point even without
recording evidence. The said judgment was upheld by the Division Bench of
this Court in judgment dated 12th January, 1999 in FAO(OS) No.221/1991
RFA No.353/2012 Page 22 of 34
titled Uday Kaushik Vs. Sanjay Kaushik. Another Division Bench of this
Court in Asha Sharma Vs. Sanimiya Vanijiya P. Ltd.
MANU/DE/2029/2012 has held that though admissions made in documents
can be explained but admissions in pleadings stand on a different footing
and attract the principle of estoppel. Thus it is not as if an opportunity has
to be given to the appellants/plaintiffs to explain their pleadings or statement
in the earlier suit.
22. I fail to see as to what purpose will be served by putting the parties to
trial in such a case. As aforesaid, the pleadings in the earlier suit and the
order therein are admitted and as per the dicta aforesaid of this Court in
Asha Sharma supra, the appellants/plaintiffs have no right to explain the
same. The Court has to thus decide the plea of Order II Rule 2 CPC on a
reading of the said pleadings and the statements made and the order in the
earlier suit and for which purpose no evidence is required. Though
undoubtedly, Order VII Rule 11(d) CPC allows rejection of the plaint,
where the suit from the statement in the plaint appears to be barred by any
law and which would include Order II Rule 2 CPC but I fail to see as to
what prevents the Court from, at the stage of Order VII Rule 11 of the CPC,
seeing any documents admitted by the plaintiff also, particularly the
RFA No.353/2012 Page 23 of 34
pleadings in the earlier suit. The counsel for the appellants/plaintiffs also
has not raised any plea that the appellants/plaintiffs need to explain the
pleadings or the order in the earlier suit and for which purpose evidence may
be required.
23. The Supreme Court in T. Arivandandam Vs. T.V. Satyapal (1977) 4
SCC 467 and in Liverpool & London S.P. & I Association Ltd. Vs. M.V.
Sea Success I (2004) 9 SCC 512 and yet again in ITC Limited Vs. Debts
Recovery Appellate Tribunal (1998) 2 SCC 70 has held that proceedings, of
which there is no possibility of success and/or which are deadwood and are
doomed should be shot down at the earliest stage and ought not to be
permitted to clog the resources of the Court and at the cost of other
deserving matters requiring the attention of the Courts and should not be
allowed to be used as a device to harass. Applying the said principle also,
there is no bar to the consideration of the plea of Order II Rule 2 CPC, in the
facts of the present case, at the stage of Order VII Rule 11 CPC.
24. As far as the judgment in Gurbux Singh is concerned, it may also be
mentioned that the Supreme Court in Saradamani Kandappan Vs. Mrs. S.
Rajalakshmi (2011) 12 SCC 18 has held that the well settled principle, that
laws which are reasonable and valid when made can, with the passage of
RFA No.353/2012 Page 24 of 34
time and consequential change in circumstances become arbitrary and
unreasonable, applies to decisions of Courts also. The Courts, in 1960s
when the judgment in Gurbux Singh was pronounced, were not over
burdened and inundated with cases as the situation is today, leading to long
delays in disposal of cases. The present situation demands that cases should
not be put to unnecessary trial, when the outcome thereof in view of the
admitted documents on record, will remain unaffected by the oral evidence
recorded. The Supreme Court in State of Maharashtra Vs. Dr. Praful B.
Desai AIR 2003 SC 2053 held that the language of a statute, though
necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it as a current law.
25. The appellants/plaintiffs, in the plaint in the suit from which this
appeal arises, have clearly admitted:
(i) that the time of 120 days agreed in the document dated 27th
February, 1996 for completion of the sale had expired prior to the
institution of the earlier suit for injunction;
(ii) that the respondent/defendant No.1 had vide notices dated 22 nd
June, 1996 and 24th June, 1996 i.e. prior to the institution of the earlier
suit for injunction, informed the appellants/plaintiffs that owing to the
RFA No.353/2012 Page 25 of 34
appellants/plaintiffs having failed to pay the balance sale
consideration within 120 days, the Agreement for Sale automatically
stood cancelled and the advance amount paid of Rs.2,00,000/- stood
forfeited.
The appellants/plaintiffs being fully aware that owing to the
aforesaid, the subsequent suit for specific performance may be held to
be barred by Order II Rule 2 CPC, had pleaded that the earlier suit for
injunction was withdrawn on 27th November, 1998 with liberty to file
proper suit before proper forum. The appellants/plaintiffs thus
pleaded the subsequent suit for specific performance to be
maintainable owing to the earlier suit having been withdrawn with
liberty to file the subsequent suit. Significantly, the plaint is quiet,
whether the Court had granted such liberty to the appellants/plaintiffs
or not.
26. As far as the legal position emanating from filing a suit for injunction
only after the cause of action for a suit for specific performance had accrued,
I had during the hearing invited attention of the counsels to the judgment of
the Division Bench of this Court in Kamal Kishore Saboo Vs. Nawabzada
Humayun Kamal Hasan Khan AIR 2001 Delhi 220 laying down that where
RFA No.353/2012 Page 26 of 34
from the averments in the plaint in the first suit, it is clear that the cause of
action for seeking the relief of specific performance had ripened as
according to the plaintiff the defendant had failed to perform his part of the
contract and still the plaintiff chose to file the suit claiming relief of
permanent injunction only when on the basis of the bundle of facts he could
also claim the relief of specific performance as well, the second suit for the
relief of specific performance is clearly not maintainable in view of Order II
Rule 2(3) of the CPC. The judgment of the Supreme Court in Gurbux
Singh though was considered by the Division Bench, was held to be not
applicable. Unfortunately, neither the counsel for the respondent/defendant
No.1 nor the counsel for the respondent/defendant No.2 referred to the said
judgment of the Division Bench of this Court in Kamal Kishore Saboo
supra, which applies on all fours to the present case.
27. I will be failing in my duty if I do not mention that I had in Rohit
Kumar Vs. A.S. Chugh 155 (2008) DLT 424, against which no appeal is
found to have been preferred, raised doubts about the correctness of the
view in Kamal Kishore Saboo supra for the reasons mentioned therein.
28. However, the matter has been put beyond any pale of controversy in
Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd. (2013) 1
RFA No.353/2012 Page 27 of 34
SCC 625, to which again neither of the counsels for the
respondents/defendants referred. The Supreme Court was concerned with a
case, where first a suit for permanent injunction restraining the defendant
from alienating, encumbering or dealing with the property was filed
pleading that the time agreed of six months for completion of sale had till
the institution of the said suit not expired and the plaintiff was thus not
claiming the relief of specific performance and seeking liberty to sue for the
relief of specific performance at a later point of time, if necessary and
thereafter, after the expiry of six months, a suit for specific performance was
filed pleading that in the earlier suit for injunction, the relief of specific
performance had not been claimed as the time agreed for performance had
not elapsed till the institution of the earlier suit for injunction. The defendant
therein sought rejection of plaint in the second suit for specific performance
as barred by Order II Rule 2 CPC. Finding, that at the time of filing the
earlier suit for injunction, the time agreed for performance had not elapsed
and thus the cause of action for the relief of specific performance had not
accrued and holding that provisions of Order II Rule 2(3) CPC would render
a subsequent suit not maintainable only if the earlier suit had been decreed
and the said provision will not apply if the first suit remains pending, the
RFA No.353/2012 Page 28 of 34
prayer for rejection of the plaint on the said ground was rejected by the High
Court. However, the Supreme Court while allowing the appeal against the
said judgment held:
(a) that Order II Rule 2(2) & (3) CPC engraft a laudable principle
that discourages/prohibits vexing the defendant again and again by
multiple suits except in a situation where one of the several reliefs
though available to the plaintiff may not have been claimed for good
reason;
(b) a later suit for such relief is contemplated only with the leave of
the Court which leave naturally will be granted after due satisfaction
and for good and sufficient reason;
(c) that the cardinal requirement for application of the provisions
contained in Order II Rule 2(2) & (3) CPC therefore is that the cause
of action in the later suit must be the same as in the first suit;
(d) that though the plaintiff in the earlier suit had claimed leave to
sue for the relief of specific performance at a later stage but no such
leave was granted by the Court; in the absence of the said leave, it will
have to be determined, whether the cause of action for the first suit for
injunction and the second suit for specific performance was one and
RFA No.353/2012 Page 29 of 34
the same;
(e) a reading of the plaint in the first suit for permanent injunction
showed clear averments to the effect that the defendant had vide letter
refused to perform the agreement and returned advance amount
received; the plaintiff had also pleaded that the defendant was
attempting to frustrate the Agreement between the parties; the said
pleadings left no room for doubt that on the date of institution of the
first suit for permanent injunction, it was the case of the plaintiff that
the defendant had no intention to honour the Agreement to Sell; in the
said situation, it was open for the plaintiff to incorporate the relief of
specific performance along with the relief of permanent injunction
and the foundation for the relief of permanent injunction claimed in
the earlier suits furnished a complete cause of action to the plaintiff to
also sue for the relief of specific performance; yet the said relief of
specific performance was omitted and no leave in this regard was
obtained or granted by the Court;
(f) there was no merit in the plea of the plaintiff that since the
period of six months agreed for completion of sale had not expired on
the date of institution of the first suit, the cause of action for the relief
RFA No.353/2012 Page 30 of 34
of specific performance had not accrued;
(g) that a suit claiming a relief to which the plaintiff may be
entitled at a subsequent point of time, though may be treated as
premature, yet cannot per se be dismissed to be presented on a future
date;
(h) there is no provision in the Specific Relief Act, 1963 requiring
a plaintiff claiming the relief of specific performance to wait for
expiry of due date for performance of Agreement in a situation where
the defendant may have made his intention clear by his overt acts;
(i) Order II Rule 2 CPC seeks to avoid multiplicity of litigations
on the same cause of action and if that is the true object of the law, the
same would not stand fully sub-served by holding that the provision
of Order II Rule 2 CPC will apply only if the first suit is disposed of
and not in a situation where the second suit has been filed during the
pendency of the first suit; rather, Order II Rule 2 CPC will apply to
both the aforesaid situations;
accordingly, the plaint in the subsequent suit for specific
performance was rejected.
29. The aforesaid recent dicta of the Supreme Court sets at rest the doubt
RFA No.353/2012 Page 31 of 34
expressed by me in Rohit Kumar supra about the correctness of the decision
in Kamal Kishore Saboo supra. After the said dicta of the Supreme Court,
there could be no manner of doubt that the subsequent suit for specific
performance from which this appeal arises was indeed barred by Order II
Rule 2 of the CPC, in view of the earlier suit for permanent injunction filed
by the appellants/plaintiffs. Though in Virgo Industries (Eng.) P. Ltd.
supra, Gurbux Singh supra was also considered but the Supreme Court still
(of course without any discussion in this regard) rejected the plaint on the
plea of Order II Rule 2 of the CPC and did not hold that the plea of Order II
Rule 2 CPC can be adjudicated only after trial.
30. That brings me to the question whether the appellants/plaintiffs had
withdrawn the earlier suit for injunction with leave to subsequently sue for
specific performance. A reading of the statement made by the
appellants/plaintiffs and as reproduced hereinabove shows that the
appellants/plaintiffs had expressed desire to withdraw the suit with liberty to
file appropriate proceedings before the competent forum but the Court in its
order dated 27th November, 1998 merely permitted the plaintiff to withdraw
the suit and did not grant any liberty as sought by the appellants/plaintiffs.
Though the Supreme Court in Gurinderpal Vs. Jagmittar Singh (2004) 11
RFA No.353/2012 Page 32 of 34
SCC 219 on which the counsel for the appellants/plaintiffs failed to place
reliance, in near same situation held that a conjoint reading of the order of
the Court and the statement of the plaintiffs suggests that the suit was
dismissed as withdrawn because the plaintiff wanted to file a fresh suit,
obviously wherein the plaintiff would seek a decree for specific performance
and not of mere injunction as was prayed for in the suit which was sought to
be withdrawn and the Trial Court and the Appellate Courts were not right in
holding that no leave had been granted to the appellant/plaintiff but in the
light of the recent subsequent judgment in Virgo Industries (Eng.) P. Ltd.
supra, where though the earlier suit for injunction in which leave was sought
was still pending, the Supreme Court nevertheless held the subsequent suit
for specific performance to be barred. I am not inclined to hold that the
appellants/plaintiffs, at the time of withdrawing the earlier suit, were granted
leave.
31. It has thus but to be held that the suit for specific performance was
indeed barred by Order II Rule 2 CPC and the learned Addl. District Judge
has rightly rejected the plaint on this ground.
32. As far as the other ground, of the plaint not disclosing any cause of
action against the respondent/defendant no.2, on which the plaint has been
RFA No.353/2012 Page 33 of 34
rejected, is concerned, I am unable to concur with the learned Addl. District
Judge. The impleadment of the respondent/defendant no.2, who was not a
party to the agreement of which specific performance was claimed, was
under Section 19(b) of the Specific Relief Act which permits specific
performance of an agreement to be claimed against a non-party thereto also.
The Supreme Court recently in Thomson Press (India) Ltd. Vs. Nanak
Builders and Investors (P) Ltd. (2013) 5 SCC 397 has reiterated that the
need for impleading a subsequent purchaser in a suit for specific
performance is to, in the event of the suit succeeding, direct the subsequent
purchaser/transferee to join in the conveyance so as to pass a title which
resides in him to the purchaser. In this view of the matter, in my opinion, the
plaint is not required to disclose any cause of action against the subsequent
purchaser and the plaint could not have been rejected on this ground.
33. However, having upheld the ground of rejection under Order II Rule 2
CPC, the appeal is dismissed. However the counsels for the respondents
having not cited the relevant case-law, no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
FEBRUARY18, 2014. 'bs' RFA No.353/2012 Page 34 of 34