Madras High Court
Mrs.Saradammal @ Saradambal vs G.S.Srinath on 18 December, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3868 of 2008 and M.P.No.1 of 2008 Mrs.Saradammal @ Saradambal ... Petitioner Vs. G.S.Srinath ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India against the order dated 23.4.2008 passed in I.A.No.1110 of 2007 in O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur. For Petitioner : Mr.Ravikumar Paul For Respondent : Mr.V.Thirupathikumar ORDER
The civil revision petitioner/petitioner/defendant has filed the present civil revision petition as against the order dated 23.03.2008 in I.A.No.1110 of 2007 in O.S.No.77 of 2007 passed by the Principal District Judge, Tiruvallur in dismissing the application filed by the revision petitioner/defendant under Order 2 Rule 2 read with Order 7 Rule 11 of Civil Procedure Code praying to reject the plaint in O.S.No.77 of 2007.
2.The trial Court, while passing orders in I.A.No.1110 of 2007, has inter alia held that 'this Court is of the opinion that the plaintiff discloses cause of action for the suit and therefore, none of the ingredients of Order 7 Rule 11 of Civil Procedure Code is made out and resultantly, dismissed the application.'
3.The learned counsel for the revision petitioner/ petitioner/defendant contends that the order of the trial Court in dismissing I.A.No.1110 of 2007 suffers from material irregularity and further that the trial Court has not appreciated properly the ingredients of Order 7 Rule 11 (d) of Civil Procedure Code and that the trial Court has not taken note of the fact the statements in para 9 of the plaint in O.S.No.77 of 2007 where the fact that the earlier suit O.S.No.185 of 2006 was pending on the date of filing of the second suit has been clearly mentioned and moreover, the trial Court has not dealt with the effect of the withdrawal of the suit O.S.No.185 of 2006 and the resultant effect of non-obtaining of leave in I.A.No.869 of 2006 which in law will bar the institution of the subsequent suit O.S.No.77 of 2007 on the same cause of action and when once the respondent/plaintiff has wantonly refrained from seeking the relief of specific performance in O.S.No.185 of 2006 without any valid reason, the respondent/plaintiff is not entitled to file a second suit on the same cause of action without obtaining specific leave of the Court and when the respondent/plaintiff has not mentioned any reason in his plaint as to why he has not sought the relief of specific performance claimed at the first instance and therefore, he is not entitled to maintain the second suit O.S.No.77 of 2007 in law and hence, prays for allowing the civil revision petition in the interest of justice.
4.Per contra, the learned counsel for the respondent/ plaintiff contends that the respondent/plaintiff has reserved his rights in the earlier suit O.S.No.185 of 2006 on the file of District Munsif Court, Ponneri and in view of the subsequent cause of action which has arisen, the respondent/plaintiff has instituted the suit for specific performance on the basis of agreement of sale dated 05.10.2004 on the file of Principal District Court, Tiruvallur, within whose jurisdiction the subject matter of the suit falls for consideration and therefore, it is quite evident that the suit O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur has been filed based on a separate, different and subsequent cause of action and that the respondent/plaintiff has withdrawn the suit O.S.No.185 of 2006 pending on the file of District Munsif Court, Ponneri after getting leave under Order XXIII Rule (1) of Civil Procedure Code and hence, the same has been dismissed as not pressed by order dated 02.03.2007 passed in I.A.No.321 of 2007 and that the said order of dismissal has not been passed on merits and that the said suit has not been decided at all on merits and therefore, the issue of applying Order 2 Rule 2 of Civil Procedure Code does not arise and even as per law the second suit O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur is not at all hit by Order 2 Rule 2 of Civil Procedure Code and the same is maintainable in law and therefore, prays for dismissal of the civil revision petition.
5.The learned counsel for the revision petitioner/ defendant contends that the 'grant of leave' is not a matter of right and cites the decision in Kandapazha Nadar & others V. Chitraganiammal & others 2007(3) CTC 767 at 770 wherein the Hon'ble Supreme Court in para 12 has observed as follows:
"12.Order 2, Rule 2 relates to the "relief which can be granted" while Order 23, Rule 1 refers to the "subject matter". The grant of leave is not a matter of a right. Different subject matters are relatable to provisions contained in Order 23, Rule 1. In both the present and the earlier Suit the subject matter is essentially the same."
Further, in the aforesaid decision at page 771 in para 15 and 16, it is observed as follows:
"15.In the case of (Rani) Kulandai Pandichi and another V. Indran Ramaswami Pandia Thevan, AIR 1928 Mad. 416, it has been held as follows:
"Permission to withdraw a Suit decides no matters in controversy and does not confer any rights on a party and the fact that the person withdrawing is precluded from bringing a fresh Suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a Suit or Appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patlogi V. Gam, 1891 (15) Bom. 370, Jogodindra Nath V. Sarat Sundari Debi, 1891 (18) Cal. 332 and Abdul Hussain V. Kasi Sabu, 1900 (270 Cal. 362"
(emphasis supplied)
16.In the case of Saraswati Bala Samanta and others V. Surabala Dassi and others, AIR 1957 Cal. 57, it has been held vide para 3 as follows:
"(3)The order recording the withdrawal of the Suit is not a decree. There was no question therefore, of drawing the order as a decree. The order recording the withdrawal can however be formally drawn up under R.187, Part I, Chapter 1 of the Civil Rules and Orders, Vol.1, inasmuch as the order directed payment of costs by the plaintiff to the defendant. We, therefore, treat the so called decree as an order." (emphasis supplied)
6.He also cites the decision in Kumarayee Ammal & 10 others V. M.Ramanathan etc. 2007-4-L.W.319 wherein this Court has inter alia held that '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 etc.'
7.Continuing further, he relies on the decision in N.V.Srinivasa Murthy and others V. Mariyamma (Dead) by Proposed Lrs. and others 2005 (3) CTC 545 at page 549 wherein the Hon'ble Supreme Court at paragraphs 15 and 16 has observed as follows:
"15.Civil Suit No.557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5.5.1953 to be not really a sale deed but a loan transaction. Relief of re-conveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose 'cause of action', on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of Clause (d) of Order 7, Rule 11 of Code of Civil Procedure.
16.The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any 'cause of action'. In our view, the trial Court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit was framed is prima facie barred by the law of limitation, provisions of Specific Relief Act as also under Order 2, Rule 2 of the Code of Civil Procedure.'
8.He also draws the attention of this Court to the decision in Raptakos Brett and Company Pvt. Ltd., V. Modi Business Centre (Pvt) Ltd. 2006(2) CTC 799 at page 806 wherein this Court in para 12 has observed 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."
9.The learned counsel for the respondent/plaintiff cites the decision in Kandapazha Nadar & others V. Chitraganiammal & others 2007(3) CTC 767 whereby and whereunder the Hon'ble Supreme Court has inter alia held that "when Courts allows suit to be withdrawn without liberty to file fresh suit without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar plaintiff in such withdrawn suit from taking plea in defence in second round of litigation." Added further, in the said decision it is further held that 'order allowing suit to be withdrawn does not constitute decree.'
10.He also relies on the decision in Harbans Singh and others V. Mohinder Singh and others AIR 2003 Punjab and Haryana 294 wherein it is held that 'earlier suit was for permanent injunction restraining defendant from alienating suit property and the subsequent suit was for specific performance of agreement to sell and earlier suit not based on cause of action of specific performance and the said relief not available to plaintiff at time of filing earlier suit as date of execution of sale deed agreed upon by them was later in point of time to date of earlier and, the bar under O.2, R.2 is not applicable.'
11.He also presses into service the decision in Ammini Kutty and others V. George Abraham AIR 1987 Kerala 246 wherein it is observed as follows:
"It cannot be said that R.1 of O.23 of Civil P.C., provides for grant of permission to withdraw a suit, only when a fresh suit is to be instituted, and not for grant of permission after the institution of such a second suit. If the Court is competent to relieve a plaintiff of the adverse consequences of mistakes committed by him in instituting or proceeding with a suit, it is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the institution of the second suit before obtaining of permission to withdraw the first is not proper, that can at best only be an irregularity, which should be considered as cured at least from the time permission is obtained. The grant of permission under the Rule is no guarantee for the maintainability of the second suit; that is a question which will have to be decided separately, as and when it is raised in the subsequent proceedings. Where a suit is allowed to be withdrawn, it should be regarded as having never been brought; grant of permission serves no other purpose like providing for the start of a new point of limitation or giving rise to a new cause of action."
12.Further, he draws the attention of this Court to the decision in Sohan Singh (Deceased by L.R.'s) and others V. Fauja Singh and others AIR 1997 Punjab and Haryana 136 wherein it is held as follows:
"The plaintiff filed a suit for specific performance against vendor on the basis of the agreement for sale executed by the vendors. Some other persons who were alleged to be in possession of the suit property were also impleaded as defendants. The stand of these defendants was that the plaintiff had earlier filed a suit against them and it was dismissed. According to the defendants the suit for specific performance was barred under O.2, R.2, Civil P.C. The defendants had filed a suit against the vendor which ended in a compromise decree. There was endorsement on the back of the agreement for sale, extending the date for execution of sale deed till disposal of the suit by the defendants against the vendor. Since the defendants did not adduce satisfactory evidence as to when they filed suit against the vendor, it was possible that the plaintiff filed suit against them during pendency of their suit against the vendor. The suit earlier filed by the plaintiff against the defendants was for permanent injunction restraining vendor from alienating the property to defendant. During pendency of that suit by defendants, the plaintiff could not have filed suit for specific performance. Thus the suit for specific performance was not barred under O.2, R.2, C.P.C. because of the earlier suit for permanent injunction filed by him."
13.Moreover, he relies on the decision in Ravjibhai Mathurbhai Solanki (deceased by LR's) and others V. Bijalbhai Devjibhai Prajapati and others AIR 2004 Gujarat 102 wherein it is laid down as follows:
"Where a suit for permanent injunction for restraining the defendants from entering into agreements of sale with third parties was filed on only the apprehension that defendants might enter into agreement with third parties in view of efforts made by them in that direction and suit was sought to be withdrawn as premature and was permitted to be withdrawn for filing fresh suit for specific performance of agreement of sale of suit land in favour of plaintiff, the fresh suit would not be barred on ground that it was filed on different cause of action i.e. Execution of agreement for sale in favour of plaintiff. The main cause of action of both the proceedings was the effort of defendants to dispose of the land and subsequently actual disposal of the suit property in favour of the third parties. Obviously when suit for specific performance was to be filed. It had to be on the basis of the document for agreement to sell and, therefore, there was nothing wrong on the part of plaintiffs to mention in the subsequent suit that the cause of action had arisen on date of agreement in his favour. The subsequent suit was, therefore, maintainable and no bar on O.2, R.2 of the C.P.C. would come into effect."
14.The learned counsel for the revision petitioner/ defendant submits that the respondent/plaintiff earlier suit in O.S.No.185 of 2006 has filed I.A.No.869 of 2006 praying permission of the trial Court to file the specific performance suit against the defendant within three weeks in the competent Civil Court as per Order 2 Rule 2 of C.P.C. and that since the suit O.S.No.185 of 2006 has been dismissed on 02.03.2007, I.A.No.869 of 2006 has also been dismissed by the learned District Munsif, Ponneri and therefore, without obtaining leave to file a fresh suit on the same cause of action, the respondent/plaintiff has instituted the second suit O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur and therefore, the same is not per se maintainable in law.
15.Per contra, the learned counsel for the respondent submits that the respondent/plaintiff has filed I.A.No.321 of 2007 before the District Munsif Court at Ponneri praying permission to withdraw the suit O.S.No.185 of 2006 for permanent injunction in view of the institution of a subsequent suit for a larger relief of specific performance and permitted to return the unmarked documents filed along with the suit and after counter being filed and hearing both sides, the learned District Munsif, Ponneri has allowed the application on 02.03.2007.
16.In this connection, a perusal of the affidavit in I.A.No.321 of 2007 in O.S.No.185 of 2006 filed by the respondent/plaintiff shows that the respondent/plaintiff on legal advise subsequently has filed a regular comprehensive suit for the substantive relief of specific performance of suit based on agreement of sale before the learned District Judge, Tiruvallur, based on the pecuniary jurisdiction of the suit and therefore, has prayed for permission to withdraw the above suit O.S.No.185 of 2006 filed for lesser or ad hoc relief of permanent injunction.
17.The learned counsel for the revision petitioner/ defendant draws the attention of this Court to the cause of action paragraph in O.S.No.185 of 2006 at para 13 wherein the agreement of sale dated 05.10.2004 has been referred to by the respondent/plaintiff and that the said suit has been filed for the relief of permanent injunction restraining the revision petitioner/defendant, her Power Agents, assigns or any other persons claiming rights through her from in any manner alienating or encumbering the Schedule mentioned property morefully described in the plaint, to any third parties ignoring the subsisting Agreement of Sale dated 5.10.2004 in favour of the plaintiff. He also takes this Court to the cause of action paragraph in the plaint in O.S.No.77 of 2007 on the file of the Principal District Judge, Tiruvallur wherein the respondent/plaintiff has mentioned that the cause of action has arisen based on the sale agreement dated 05.10.2004 executed by the revision petitioner/defendant in respect of the sale of suit property etc.
18.Added further, the learned counsel for the revision petitioner/defendant contends that the respondent/plaintiff in counter to the I.A.No.1110 of 2007 in O.S.No.77 of 2007 at para 3 has specifically averred that the revision petitioner/defendant has deliberately suppressed the vital fact that at the time of filing the suit for part of the relief before the District Munsif Court, Ponneri, necessary leave has been obtained by him and absolutely it is false to say in para 3 of I.A.No.1110 of 2007 that as if the suit as well as in I.A.No.869 of 2006 were dismissed on 02.03.2007 etc. Moreover, the respondent/plaintiff in the said counter has also stated that 'the term dismissed cannot be construed as a dismissal on merits but could only be construed as dismissal due to withdrawal as not pressed.'
19.It is to be noted that if the evidence to support the two claims is different in two suits viz., O.S.No.185 of 2006 and O.S.No.77 of 2007, then the causes of action are also different. It cannot be gainsaid that in the second suit O.S.No.77 of 2007 a relief of specific performance has been sought for by the respondent/plaintiff based on the agreement of sale dated 05.10.2004 against the revision petitioner/defendant. In fact, the relief of specific performance prayed for in the second suit in O.S.No.77 of 2007 is not barred by Order 2 Rule 2 of Civil Procedure Code, since the relief sought for in the second suit could not have been asked in a Court of District Munsif at Ponneri, as it lacked the jurisdiction. However, in the cause of action in the two suits may be considered to be the same if in substance they are identical only. It is relevant to point out that a cause of action consists of all facts which are essential for the plaintiff to allege and to establish, if denied or converted, for example the bundle of facts which taken with the law applicable to them gives the plaintiff a right of some relief against the defendant.
20.The learned counsel for the revision petitioner/ defendant submits that as per Order 23 Rule 1 of Civil Procedure Code at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of claim, under sub-rule 1; or (b)withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim and in the instant case on hand, the respondent/plaintiff has not sought liberty/permission in I.A.No.321 of 2007 in O.S.No.185 of 2006 to withdraw the suit O.S.No.185 of 2006 with a liberty to institute a fresh suit viz., O.S.No.77 of 2007 in respect of the subject matter of such suit or such part of the claim and therefore, the learned Principal District Judge,Tiruvallur should have allowed the I.A.No.1110 of 2007 in the interest of justice.
21.In this connection, it is not out of place to point out that the Court has no power apart from Rule 1 Order 23 to allow a suit to be withdrawn with a liberty to file a fresh one and this power ought to be exercised subject to the conditions prescribed therein and the Court is to perform the duty as per provisions of Civil Procedure Code after taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. It cannot lost sight of that the permission has to be obtained from the Court trying the earlier suit. It is true that I.A.No.321 of 2007 in O.S.No.185 of 2006 filed by the respondent/plaintiff before the District Munsif Court, Ponneri praying for permission to withdraw the suit O.S.No.185 of 2006 filed for permanent injunction has been allowed on 02.03.2007 by the learned District Munsif, Ponneri. In I.A.No.321 of 2007 in O.S.No.185 of 2006 the respondent/plaintiff has not sought a liberty or permission of learned District Munsif, Ponneri to file a subsequent suit for larger relief of specific performance. It is to be noted that the suit for specific performance O.S.No.77 of 2007 has been filed before the Principal District Judge, Tiruvallur on the basis of pecuniary jurisdiction, valuing the suit for the purpose of jurisdiction at Rs.54,25,200/- and that plaintiff has paid a Court Fee of Rs.4,06,890.50 as per Section 42 of the Tamil Nadu Court Fees and Suits Valuation Act. Therefore, it is crystal clear that the respondent/plaintiff has filed a second suit O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur for a larger relief of specific performance before the competent Court viz., Principal District Court at Tiruvallur and therefore, the second suit is not barred under Order 2 Rule 2 of Civil Procedure Code. It is relevant to point out that when a Court does not grant leave to file a fresh suit it can dismiss only the application for liberty but not the suit, in the considered opinion of this Court.
22.Inasmuch as even though the respondent/plaintiff has not sought specific permission/liberty of the District Munsif Court, Ponneri to file a second suit viz., O.S.No.77 of 2007 on the basis of same cause of action based on agreement of sale dated 05.10.2004, this Court is of the considered view that the suit for specific performance viz., O.S.No.77 of 2007 is not barred under Order 2 Rule 2 of Civil Procedure Code because of the earlier suit O.S.No.185 of 2006 has been filed for permanent injunction. Furthermore, the non-obtaining of liberty to file a fresh suit under Order 23 Rule 3 and 4 of Civil Procedure Code can at best only a curable procedural irregularity and if the permission/liberty to withdraw the first suit is only to file a fresh suit and when such permission is granted, the suit already instituted should not fail, then that liberty/permission to file a fresh suit takes away the bar of principles of res judicata and in any event, the second suit O.S.No.77 of 2007 filed by the respondent/plaintiff is maintainable, in the considered opinion of this Court. Indeed under Order 21 Rule 1 of Civil Procedure Code, Court cannot direct the defendant to execute a sale deed. Moreover, filing of a fresh suit by the respondent/plaintiff on the basis of sale agreement for the relief of specific performance is not barred under law. Really speaking, subject matter in Rule 1(4) of Order 23 of Civil Procedure Code is to be interpreted having regard to substantial rights of parties to do justice. Furthermore, the sufficiency of ground under Order 23 Rule 1 of Civil Procedure Code will include (i)the grounds put forth in the application; (ii)the progress of the suit: (iii)the prejudice likely to be caused to the defendant and other concomitant factor. Besides this, suit on a different cause of action with reference to the same subject matter is not barred. When second suit already filed at the time of withdrawal of the first suit, then the second suit is not barred. Where two suits had already been filed Order 23 Rule 1(4) of Civil Procedure Code will not apply.
23.As far as the present case is concerned, the suit O.S.No.77 of 2007 is pending part-heard for long time from 21.08.2007 wherein the P.W.1 is to be cross examined by the revision petitioner/defendant.
24.In the up-short of detailed discussions mentioned supra and on overall assessment of cumulative facts and circumstances of the case, this Court is of the considered view that the second suit viz., O.S.No.77 of 2007 filed by the respondent/plaintiff is not barred under Order 2 Rule 2 of Civil Procedure Code and even the institution of the second suit is not a bar under Order 23 Rule 3 or 4 of Civil Procedure Code and since the second suit is based on specific performance of agreement for a larger relief than the relief prayed for in the first suit viz., O.S.No.185 of 2006 filed for permanent injunction and taking note of the another fact that the plaintiff/P.W.1 is to be cross examined from 21.08.2007, this Court comes to the inevitable conclusion that I.A.No.1110 of 2007 filed by the revision petitioner/defendant praying to reject the plaint is not maintainable in law and resultantly, the civil revision petition fails and the same is hereby dismissed in the interest of justice.
25.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.1110 of 2007 is affirmed for the reasons assigned by this Court in this revision. Since the suit O.S.No.77 of 2007 on the file of Principal District Judge, Tiruvallur is pending at part-heard stage wherein the plaintiff as P.W.1 is to be cross examined from 21.08.2007, this Court directs the learned Principal District Judge, Tiruvallur to dispose off the suit within a period of four months from the date of receipt of copy of this order and to report compliance, uninfluenced with any of the observations made by this Court in this revision. The parties are directed to complete the proceedings by lending their cooperation to the trial Court. It is open to the revision petitioner/defendant to raise all factual/legal contentions before the trial Court and the trial Court shall dispose off the suit O.S.No.77 of 2007 in the manner known to law, after providing due opportunities to parties. Consequently, connected miscellaneous petition is also dismissed.
sgl To The Principal District Judge, Tiruvallur