Madras High Court
M.Vijayalakshmi vs T.Shanmugam on 12 January, 2011
Equivalent citations: AIR 2011 MADRAS 88, (2011) 4 MAD LJ 770
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.620 of 2010 and M.P.No.1 of 2010 M.Vijayalakshmi .. Appellant vs. 1. T.Shanmugam 2. N.E.Soundarajan .. Respondents This second appeal is filed against the judgment and decree dated 30.09.2009, passed by the learned Subordinate Judge, Ranipet in A.S.No.25 of 2009 confirming the judgment and decree dated 28.01.2009 in O.S.No.12 of 2008 passed by the learned District Munsif, Ranipet. For Appellant : Mr.R.Margabandhu For Respondents : Mr.T.P.Prabhakaran No appearance J U D G M E N T
This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 30.09.2009, passed by the learned Subordinate Judge, Ranipet in A.S.No.25 of 2009 confirming the judgment and decree passed by the learned District Munsif, Ranipet dated 28.01.2009 in O.S.No.12 of 2008.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. Heard the learned counsel for the appellant/plaintiff. Whereas, despite printing the name of the learned counsel for the respondents, there is no representation.
4. The epitome and the long and short of the relevant facts, absolutely necessary and germane for the disposal of this Second Appeal would run thus:
a) The plaintiff filed the suit O.S.No.12 of 2008 seeking the following reliefs:
(a) For a permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties described in the schedule here under in any manner.
(b) for a permanent injunction restraining the defendants and their men from effecting any alienations in respect of the suit properties in any manner.
(c) and for costs.
(extracted as such)
b) The defendants filed the written statement.
c) Whereupon issues were framed. On the side of the plaintiff, P.Ws. 1 and 2 were examined and Exs.A1 to A11 were marked. The second defendant/Soundarajan examined himself as D.W.1 and Ex.B1was marked.
d) Ultimately the trial court dismissed the suit. As against which, appeal was filed for nothing but to be dismissed by the appellate court.
5. Being aggrieved by and dissatisfied with the same, this Second Appeal has been filed on various grounds inter alia that both the courts were wrong in holding that the plaintiff failed to take steps to get efficacious remedy, when in fact the plaintiff herein filed one other suit in O.S.No.72 of 2009 before the court concerned, wherein the defendants filed written statement invoking Order II Rule 2 of the Code of Civil Procedure on the ground that in view of the suit in O.S.No.12 of 2008, the subsequent suit O.S.No.72 of 2009, which was one for specific performance was barred.
6. On the side of the plaintiff/appellant, the following substantial question is found suggested.
Whether by filing suit for injunction on one cause of action operate as bar under Order 2 Rule 2 of CPC in filing a suit O.S.No.72 of 2009 on the file of District Judge, Vellore for enforcing relief of Specific Performance of Contract?
(extracted as such)
7.Heard the learned counsel for the plaintiff who would implore and entreat that he would be satisfied if the plaintiff/ appellant herein is permitted to proceed with the suit in O.S.No.72 of 2009, which was originally filed before the District Court, Vellore and subsequently transferred to Fast Track Court, Ranipet and numbered as O.S.No.18 of 2010. According to him, the Fast Track Court rejected the plaint in O.S.No.18 of 2010 invoking Order II Rule 2 of the Code of Civil Procedure ignoring the fact that both the courts below so far this litigation concerning O.S.No.12 of 2008, was dismissed purely on the ground that seeking efficacious remedy, the plaintiff/appellant herein should file proper suit; even though the plaintiff/appellant herein filed proper suit subsequently in O.S.No.72 of 2009 before the District Court, Vellore, which was transferred and renumbered as O.S.No.12 of 2010 by the Fast Track Court, Ranipet yet that was wrongly dismissed invoking Order II Rule 2 of the Code of Civil Procedure.
8. In view of Section 100 of the Code of the Civil Procedure, in my considered opinion, the substantial question of law, which would arise for being considered in this case is as to whether, there is any perversity or illegality in the judgements passed by both the courts below invoking Section 41 (h) of the Specific Relief Act, 1963?
9. Section 41(h) of the Specific Relief Act, 1963 is extracted here under for ready reference:
"41. Injunction when refused An injunction cannot be granted -
a) ........
b)..........
c) .........
d) ........
e) .........
f) .........
g) ........
h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."
10. A mere perusal of the judgments and decrees of both the courts below would reveal that they after discussing the facts felt that as per Section 41(h) of the Specific Relief Act,1963, which is extracted supra, the plaintiff should have filed a suit for getting efficacious remedy because in O.S.No.12 of 2008, there was no prayer for specific performance of the agreement to sell but the plaintiff prayed for retaining her alleged possession and also wanted injunction as against the defendants/respondents therein not to alienate the suit property.
11. It is a trite proposition of law that injunction remedy is a discretionary remedy and both the courts below taking into consideration the complicity involved in the matter were of the opinion that the plaintiff/appellant herein should file a separate suit. In fact, the very plaintiff herself has chosen to file the subsequent suit in O.S.No.72 of 2009 in District Court, Vellore, which was subsequently transferred to Fast Track Court, Ranipet and renumbered as O.S.No.18 of 2010 and in such case, the same defendants were not justified, in my opinion, in invoking Order II Rule 2 of the Code of Civil Procedure and get the suit itself dismissed.
12. The courts below decided O.S.No.12 of 2008 invoking Section 41 (h) of the Specific Relief Act, 1963. The purport of the Section itself is that a party has to file a suit seeking efficacious remedy. Both the courts felt that the plaintiff in O.S.No.12 of 2008 was not justified in filing such a suit and they adumberated and indicated that the suit for efficacious remedy should be filed. In such a case, the act of the plaintiff in filing the subsequent suit in O.S.No.72 of 2009 in District Court, Vellore, which was subsequently transferred to Fast Track Court, Ranipet and renumbered as O.S.No.18 of 2010, cannot be found fault with under Order II Rule 2 of the Code of Civil Procedure. I would like to refer to the scope of Order II Rule 2 of the Code of Civil Procedure as found exemplified in the Apex Court's decision reported in (2010)10 SCC 141 (Alka Gupta vs. Narender Kumar Gupta). An excerpt from it would run thus:
"12. We may extract Order 2 Rules 1 and 2 of the Code for ready reference:
"1. Frame of suit Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
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."
The object of Order 2 Rule 2 of the Code is two fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action."
13. The learned counsel for the appellant/plaintiff submits that as against the order of the learned Fast Track Judge, Ranipet in rejecting the plaint, appeal is filed and it is for the appellant/plaintiff to argue before the appellate forum concerned and get appropriate orders. However, the dismissal of the suit O.S.No.12 of 2008 by the trial court and the confirmation of such dismissal by the appellate court, in my opinion, is not fraught with perversity or illegality, warranting interference in second appeal.
14. With the above observation, this second appeal is disposed of. No costs.
vj2 12.01.2011
Index : Yes
Internet : Yes
To
1. The Subordinate Judge, Ranipet
2. The District Munsif, Ranipet
G.RAJASURIA,J.
vj2
S.A.No.620 of 2010
12.01.2011