Delhi High Court
Nutan Tyagi vs Nirmala Dabas on 22 July, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 22nd July, 2016.
+ RFA No.795/2015
NUTAN TYAGI ..... Appellant
Through: Mr. Pawan Sharma, Adv.
Versus
NIRMALA DABAS ..... Respondent
Through: Mr. Gaurav Bhardwaj and Ms.
Garima Bhardwaj, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil
Procedure,1908 (CPC) impugns the judgment and decree dated 16th
September, 2015 of the Court of District and Sessions Judge (North) Rohini
Courts, Delhi of dismissal, on a preliminary issue as barred by Order II Rule
2 CPC, of CS(OS) No.69/2014 filed by the appellant/plaintiff for (a) specific
performance of an agreement of sale of immovable property; (b) injunction
restraining the respondent/defendant from dispossessing the
appellant/plaintiff from the said property; and, (c) injunction restraining the
respondent/defendant from creating third party interest in the said property.
RFA.No.795/2015 Page 1 of 27
2. The appeal came up before this Court first on 27th November, 2015
when notice thereof was issued. Thereafter on 29th April, 2016, the
following order was passed.
"1. The appeal impugns the judgment and decree of dismissal of a
suit for specific performance of an agreement to sell of
immovable property as barred by Order II Rule 2 of the Code
of Civil Procedure, 1908.
2. Notice of the appeal was issued and the Trial Court record
requisitioned.
3. Though the notice is reported to have been served but none
appears for the respondent.
4. Though the learned Additional District Judge in dismissing the
suit has relied upon my judgment in Lakhbir Singh Vs. Arun
Kumar Khanna 209 (2014) DLT 708 but as far as I recollect,
Supreme Court in Inbasagaran Vs S. Natarajan (Dead)
Through LRs (2015) 11 SCC 12 has taken a view contrary to
that taken by me in Lakhbir Singh supra against which it
appears no appeal was preferred.
5. The counsel for the appellant seeks time to examine.
6. Even otherwise, it is deemed expedient to give another
opportunity to the respondent to appear.
7. List on 19th May, 2016."
3. The counsels were heard on 19th May, 2016 and judgment reserved.
4. The trial court record has been requisitioned and has also been
perused.
RFA.No.795/2015 Page 2 of 27
5. The appellant/ plaintiff on 18th March, 2014 instituted the suit from
which this appeal arises pleading (i) that the husband of the
respondent/defendant was the owner of property No.C-21, Top Floor,
measuring 200 sq yds, Adarsh Nagar, Village Bharola, Netaji Road, Delhi -
33 and had agreed to sell the same to the appellant/plaintiff for a total sale
consideration of Rs.13,50,000/- and received bayana amount of
Rs.1,50,000/- from the plaintiff and executed a bayana agreement dated 16th
May, 2007; (ii) that as per the said bayana agreement the balance
consideration of Rs.12,00,000/- was to be paid in installments of Rs.15,000/-
each per month w.e.f. 1st January, 2008 to January, 2012 and thereafter the
sale deed had to be executed; (iii) the husband of the respondent/defendant
had also handed over peaceful and vacant possession of the said property to
the appellant/plaintiff and the appellant/plaintiff has since then been in
possession thereof; (iv) that the appellant/plaintiff has paid Rs.15,000/- per
month w.e.f. 1st January, 2008 had has paid total amount of Rs.8,75,000/- on
different dates upto December, 2011 against receipt; (v) as per bayana
agreement dated 16th May, 2007, the appellant/plaintiff is liable to pay
interest at 2% on the delayed payment; (vi) that the husband of the
respondent/defendant expired and which fact came to the knowledge of the
RFA.No.795/2015 Page 3 of 27
appellant/plaintiff in February, 2012; (vii) though the appellant/plaintiff
approached the respondent/defendant to execute the sale deed after receiving
the balance sale consideration but the respondent/defendant refused; (viii)
the respondent/defendant sent legal notice dated 2 nd March, 2013 to the
appellant/plaintiff averring the appellant/plaintiff to be a tenant in the
property and terminating the tenancy of the appellant/plaintiff; (ix) that the
respondent/defendant on 30th August, 2013 attempted to dispossess the
appellant/plaintiff from the property.
Accordingly, the suit for reliefs aforesaid was filed.
6. The respondent/defendant contested the suit by filing a written
statement inter alia on the ground that the suit was hit by Order II Rule 2 of
the CPC as the appellant/plaintiff previously filed a suit for permanent
injunction but did not include the claim for specific performance in that suit
and also did not seek leave of the Court to file a separate suit for specific
performance. Considering that the suit has been dismissed on a preliminary
issue on this plea of the respondent/defendant, need to refer to the other
defences of the respondent/defendant is not felt.
RFA.No.795/2015 Page 4 of 27
7. The appellant/plaintiff in his replication, with respect to the plea of
Order II Rule 2 CPC pleaded that the earlier suit filed on 23rd September,
2013 had already been withdrawn on 21st February, 2014 with liberty to file
a fresh and hence the question of bar of Order II Rule 2 CPC did not arise.
8. The learned Additional District Judge, vide order dated 25th
November, 2014, on the pleadings of the parties framed the following issues.
"1. Whether the suit of the plaintiff is barred by provisions of
Order II Rule 2 CPC? OPD.
2. Whether the bayana agreement and receipts produced by
the plaintiff are forged and fabricated? OPD.
3. Whether the plaintiff is entitled to the decree of specific
performance as prayed? OPP.
4. Whether the plaintiff is entitled to permanent injunction as
prayed? OPP.
5. Relief."
and ordered the issue No.1 be treated as a preliminary issue.
9. The learned Additional District Judge, vide impugned judgment/order
dated 16th September, 2015, has decided the issue aforesaid in favour of the
respondent/defendant and hence "rejected" the plaint, finding / observing /
holding -
RFA.No.795/2015 Page 5 of 27
(a) the appellant/plaintiff had filed a suit for injunction on 24 th
September, 2013 before senior Civil Judge pleading the agreement
to sell and that the defendant had refused to perform the same and
had on the contrary attempted to dispossess the appellant/plaintiff
from the property and claiming permanent injunction restraining
the respondent/defendant from forcibly dispossessing the
plaintiff/defendant from the property;
(b) the said suit was withdrawn on 21st February, 2014 with liberty to
file fresh one;
(c) the appellant/plaintiff in the plaint in the earlier suit for permanent
injunction had pleaded that the cause of action therefor had
accrued when the husband of the respondent/defendant had
entered into the agreement to sell and from time to time when part
payments were made;
(d) that in the plaint in the subject suit for specific performance also it
was pleaded that the cause of action therefor had accrued on 22 nd
March, 2013 when the respondent/defendant in response to the
legal notice had refused to execute the sale deed;
RFA.No.795/2015 Page 6 of 27
(e) relief of specific performance was very much available to the
appellant/plaintiff on the date the injunction suit was filed but the
appellant/plaintiff did not seek the said relief; and,
(f) that the liberty granted to the appellant/plaintiff to file a fresh suit,
while withdrawing the earlier suit for injunction, would be only
for a fresh injunction suit and not for a suit for specific
performance.
10. The question for adjudication, as would be apparent from the above, is
two fold. Firstly, whether owing to the appellant/plaintiff having omitted to
sue for the relief of specific performance while filing the earlier suit, the
appellant/plaintiff was precluded from afterwards suing for the relief of
specific performance; and, secondly, whether the liberty granted "to file
fresh suit" at the time when the earlier suit was withdrawn is confined to a
fresh suit for the same relief which was claimed in the earlier suit or entitles
the appellant/plaintiff to in the fresh suit also add the relief of specific
performance of agreement to sell.
11. The learned District Judge having based the impugned judgment/order
solely on Lakhbir Singh supra, I will first deal therewith. In that case, after
RFA.No.795/2015 Page 7 of 27
the seller had notified the purchaser of the purchaser being in breach of the
agreement to sell for not paying the sale consideration, the purchaser had
instituted a suit for permanent injunction to restrain the seller from creating
third party rights in the property agreed to be sold and after obtaining an
interim order therein and during the pendency of the said suit instituted the
suit for specific performance and thereafter withdrew the earlier suit for
injunction. Relying on the dicta of the Supreme Court in M/s Virgo
Industries (Eng) P. Ltd. Vs. M/S Venturetech Solutions P. Ltd. (2013) 1
SCC 625 inter alia holding a suit for specific performance filed during the
pendency of an earlier suit for injunction for restraining the seller from
creating third party rights in the property to be barred by time and finding
fault with the reasoning of the High Court that Order II Rule 2 CPC is
applicable only when the first suit is disposed of, the suit was held to be
barred by Order II Rule 2 CPC.
12. In Inbasagaran supra though the seller had been allotted the property
agreed to be sold by the Tamil Nadu Housing Board, the Housing Board had
not executed the sale deed in favour of the seller for the reason of the seller
having not raised construction. In these circumstances, the seller had agreed
to sell the land to the purchaser and agreed to execute sale deed in favour of
RFA.No.795/2015 Page 8 of 27
the purchaser after the sale deed in his own favour had been executed by the
Housing Board and which in turn was dependent upon the purchaser raising
construction on the land. The purchaser filed a suit for permanent injunction
to restrain the seller from taking forcible possession of the building
constructed by him and during the pendency of the said suit filed a second
suit for relief of specific performance. Though the Trial Court decreed the
suit for specific performance but the High Court in appeal held the suit for
specific performance to be barred by Order II Rule 2 CPC reasoning that the
purchaser had not filed the suit for specific performance on the basis of the
fact that the Housing Board had since the filing of the earlier suit for
injunction executed the sale deed in favour of the seller and the cause of
action pleaded in both, the earlier suit for injunction as well as in the
subsequent suit for specific performance was the same and since the
purchaser had omitted to seek the relief for specific performance in the
earlier suit for permanent injunction, it amounted to relinquishment of his
right of specific performance. Setting aside the said reasoning, Supreme
Court held -
(i) that the cause of action for the earlier suit for injunction and the
cause of action for the subsequent suit for specific performance
RFA.No.795/2015 Page 9 of 27
and the relief sought for in the two suits were quite distinct and not
the same;
(ii) if the causes of action in the two suits are different and distinct and
the evidence to support the relief in the two suits is also different,
then the provisions of Order II Rule 2 CPC will not apply;
(iii) a perusal of Order II Rule 2 CPC clearly reveals that the same
applies to cases where the plaintiff omits to sue a portion of the
cause of action on which the suit is based, either by relinquishing
the cause of action or by omitting the part of it;
(iv) Order II Rule 2 CPC has no application to cases where the
plaintiff bases his suit on separate and distinct cause of action and
chooses to relinquish one or the other of them; it is always open to
the plaintiff to file a fresh suit on the basis of a distinct cause of
action which he may have relinquished;
(v) only if the two suits and the reliefs claimed therein are based on
the same cause of action then only the subsequent suit will be
barred by Order II Rule 2 CPC; however when the precise cause
of action upon which the previous suit for injunction was filed
RFA.No.795/2015 Page 10 of 27
because of imminent threat from the side of the seller of
dispossession from the suit property, then subsequent suit for
specific performance on the strength and on the basis of the sale
agreement cannot be held to be same cause of action;
(vi) from the pleadings in the two suits, particularly the cause of action
as alleged by the purchaser, it was clear that they were not same
and identical;
(vii) besides, there was nothing in the suit for injunction filed by the
purchaser to show that the purchaser intentionally relinquished
any part of his claim for the reason that the suit was for only
injunction because of the threat from the side of the seller to
dispossess the purchaser from the property; it was only after the
seller disclosed the execution of the sale deed in his favour by the
Housing Board and denied execution of sale deed in favour of the
purchaser that the cause of action for filing the suit for specific
performance arose;
(viii)the judgment in Virgo Industries (Eng) P. Ltd supra was not
applicable as in that case the plea of the purchaser in the plaint in
RFA.No.795/2015 Page 11 of 27
the suit for injunction was that the seller was attempting to
frustrate the agreement by transferring the property to third party;
and,
(ix) on the contrary in the subject case the suit for injunction was filed
only qua the threat of dispossession and the purchaser did not
allege that the seller was threatening to alienate or transfer the
property to frustrate the agreement.
13. Both the judgments i.e. Virgo Industries (Eng) P. Ltd supra and
Inbasagaran supra are of benches of two Hon‟ble Judges of the Supreme
Court.
14. What I understand of the two judgments i.e. Virgo Industries (Eng)
P. Ltd. supra and Inbasagaran supra is that if in the plaint in the earlier suit
for injunction, it is not the plea that the seller is indulging in the acts which
are sought to be injuncted for frustrating the agreement to sell, a subsequent
suit for the relief of specific performance would not be barred by Order II
Rule 2 CPC; otherwise it would be.
RFA.No.795/2015 Page 12 of 27
15. I have looked at the plaint in the suit for permanent injunction earlier
filed by the appellant/plaintiff in the said light. The appellant/plaintiff
therein is found to have pleaded as under:
"6. That unfortunately the husband of the defendant expired
which fact came into the knowledge of the plaintiff in
February, 2012 and after the demise of her husband, the
defendant and her other legal heirs became dishonest
and now they want to grab the suit property.
7. That the plaintiff approached the defendant and
requested to execute the sale deed after receiving the
balance amount but she flatly refused to execute the sale
deed in respect of the suit property.
8. That to achieve her wrong tactic, the defendant has sent
a legal notice dated 22.3.2013 to the plaintiff and in
which she alleged that the plaintiff is a tenant in respect
of the suit property and allegedly terminated his
tenancy. The plaintiff has replied the said notice on
dated 23.4.2013 and further amended reply dated
10.5.2013 thereby mentioning the correct facts.
.......
10. That the defendant has become dishonest and he wants
to evict the plaintiff from the suit property and to chief
his illegal design he is adopting the different tactics.
11. That thereafter the defendant approached to plaintiff on
1.8.2013 and told to vacate the premises in question the
plaintiff told the defendant that he has already made the
big share of the entire payment of the said property and
requested not to disturb his possession over the suit
property on this the defendant threatened the plaintiff
that she will come again along with her associates and
forcibly dispossess the plaintiff from the suit property.
RFA.No.795/2015 Page 13 of 27
12. That the plaintiff was/is always ready and willing to
perform the part of her contract and is ready to pay the
balance payment along with 2% interest as per the
terms and conditions mentioned in the aforesaid
agreement to sell to the defendant and due to the demise
of the husband of the defendant, the agreement cannot
be performed.
13. That the defendant along with her associates again
came to the plaintiff at the suit property on 30.8.2013,
and started throwing the goods lying in the suit property
and tried to dispossess the plaintiff from the said
property the plaintiff made hue and cry and due to the
intervention of the respectable persons of the area, the
defendant could not succeed in his illegal motive and
design and left the place by threatening the plaintiff that
he will come again with more force and will definitely
dispossess the plaintiff from the property in question.
.........
16. That the cause of action arose for filing the present suit
in favour of the plaintiff and against the defendant on
16.5.2007 when the husband of the defendant entered
into a bayana agreement with the plaintiff and received
Rs.1,50,000/- as Bayana Agreement, the cause of action
further arose time to time as and when the plaintiff paid
the amount of Rs.15,000/- each upto January, 2012.
The casue of action further arose on 30.8.2013 when the
defendant and her associates further tried to dispossess
the plaintiff from the suit property and the cause of
action is still continuing."
The appellant/plaintiff in the said suit sought not only the injunction
against the dispossession but also injunction against the
RFA.No.795/2015 Page 14 of 27
respondent/defendant from selling, transferring or creating third party
interest in the property.
16. The aforesaid averments of the appellant/plaintiff in the plaint in the
earlier suit for permanent injunction do indeed show that it was the case of
the appellant/plaintiff therein that the respondent/defendant was threatening
to dispossess the appellant/plaintiff or to transfer the property to a third party
in order to frustrate the agreement to sell. In the facts of the present case,
the ratio of the dicta of Supreme Court in Virgo Industries (Eng) P. Ltd
supra and not the dicta of Supreme Court in Inbasagaran supra would be
applicable and following the same the suit indeed would be barred by Order
II Rule 2 of the CPC.
17. The counsel for the appellant/plaintiff however drew attention to
Rathnavathi Vs. Kavita Ganashamdas (2015) 5 SCC 223 pronounced on
the same date as Inbasagaran supra by a different Bench of two judges of
the Supreme Court. That was also a case of the purchaser first instituting a
suit for permanent injunction restraining the seller from interfering with the
purchaser‟s possession of the property agreed to the sold and subsequently
instituting a suit for specific performance of the agreement to sell. Both the
RFA.No.795/2015 Page 15 of 27
suits were consolidated for trial. The trial Court dismissed both the suits
inter alia holding the suit for specific performance to be barred by Order II
Rule 2 CPC. The High Court allowed both the appeals. Supreme Court
upheld the judgments of the High Court. With respect to the plea of Order II
Rule 2 CPC it was held - (i) that for Order II Rule 2 CPC to apply the cause
of action in later suit has to be the same as in the first suit; (ii) that the suit
for permanent injunction was based on a threat of dispossession; (iii) the
cause of action for the subsequent suit for specific performance was non-
performance of the agreement to sell; (iv) both the suits were thus founded
on the different causes of action and hence could be filed simultaneously; (v)
that the ingredients to file the suit for permanent injunction are different than
that of the suit for specific performance; (vi) that even if both the suits are
based on identical pleadings and even if the cause of action to sue for relief
for specific performance of agreement to sell was available prior to filing of
the first suit, the second suit would not be barred by Order II Rule 2 CPC
because the cause of action in the two suits is different; (vii) a suit for
specific performance could not have been instituted on the basis of cause of
action of the first suit; (viii) merely because pleadings of both suits are
similar to some extent does not give rise to the Order II Rule 2 of CPC; (ix)
RFA.No.795/2015 Page 16 of 27
it is the cause of action which is material to determine the applicability of
bar under Order II Rule 2 and not merely the pleadings; (x) since the plea of
Order II Rule 2, if upheld, results in depriving the plaintiff to file the second
suit, it is necessary for the court to carefully examine the entire factual
matrix of both the suits, the cause of action on which the suits were founded
and the reliefs claimed in both the suits and lastly the legal provisions
applicable for grant of relief in both the suits.
18. I have again examined the plaint in the suit for specific performance
from which this appeal arises and the plaint in the earlier suit for injunction
filed by the appellant/plaintiff, with the care and caution which Supreme
Court has advised.
19. As per the own case of the appellant/plaintiff, (i) the date fixed in the
bayana agreement of which specific performance was sought, was end of
January, 2012; (ii) the appellant/plaintiff had approached the
respondent/defendant for performing her part of the agreement to sell but the
respondent/defendant had refused; (iii) the appellant/plaintiff had also got
issued a legal notice to the respondent/defendant to perform her part of the
agreement and in response thereto also the respondent/defendant had refused
RFA.No.795/2015 Page 17 of 27
to perform her part of the agreement; (iv) that the respondent/defendant had
become dishonest and was wanting to evict the appellant/plaintiff from the
suit property of which possession had been given in pursuance to the
agreement to sell and to sell the suit property to defeat the agreement of sale
thereof in plaintiff‟s favour.
20. It is not the case of the appellant/plaintiff that after the institution of
the earlier suit for injunction she had approached the respondent/defendant
to perform her part of the agreement or that the respondent/defendant had
refused or that anything else had happened after the institution of the suit for
injunction which may have furnished a cause of action for the suit for
specific performance.
21. Rather it is the express case of the appellant/plaintiff that she was
filing the suit for specific performance after withdrawing the earlier suit for
permanent injunction with liberty to file a fresh suit.
22. In this view of the matter, there is nothing in the dicta of Rathnavathi
supra also which dissuades me from following M/s Virgo Industries (Eng)
P. Ltd. supra which has not been disagreed with therein also. I therefore
answer the first of the aforesaid questions in favour of the
RFA.No.795/2015 Page 18 of 27
respondent/defendant and against the appellant/plaintiff and hold that in
terms of M/s Virgo Industries (Eng) P. Ltd. supra and Lakhbir Singh supra
the suit from which this appeal arises was barred by Order II Rule 2 of CPC.
23. Though I had in order dated 29th April, 2016 reproduced above observed
that no appeal appeared to have been filed against Lakhbir Singh supra but my
subsequent research discloses Lakhbir Singh Vs. Arun Khanna
MANU/DE/2131/2015 whereby the Division Bench of this Court, after noticing
Inbasagaran supra and Rathnavathi supra, for similar reasons as have been
given by me above, dismissed the appeal, holding Virgo Industries (Eng) P.
Ltd. supra to be applicable to facts of that case.
24. Notice may also be taken of yet another judgment of a bench of two Judges
in Coffee Board Vs. Ramesh Exports Pvt. Ltd. (2014) 6 SCC 424 where in the
context of successive suits for recovery of money, the second suit for recovery of
money was held to be barred by Order II Rule 2 CPC reasoning that (i) one ought
not to be vexed twice for the same cause; (ii) if different reliefs and claims arise
out of the same cause of action then the plaintiff must place all his claims before
the Court in one suit and cannot omit one of the reliefs and claims except without
leave of the Court; (iii) the bar of Order II Rule 2 CPC comes into operation where
the cause of action on which previous suit was filed forms the foundation of the
RFA.No.795/2015 Page 19 of 27
subsequent suit and when the plaintiff could have claimed the relief sought in
subsequent suit, in earlier suit; (iv) both plaints must be read as a whole to identify
the cause of action which is necessary to maintain a claim or necessary for
plaintiff to prove if traversed; (v) if relief claimed in subsequent suit could have
been pleaded in earlier suit, the subsequent suit would be barred.
25. Now coming to the second question, the appellant/plaintiff on 21 st
February, 2014 made the following statement before the Court in which the
earlier suit for specific performance was pending.
"Statement of plaintiff Sh. Nutan Tyagi s/o Sh. Shiv Nandan
Tyagi r/o C-21, Top Floor Adarsh Nagar, Village Bharola,
Netaji Road, Delhi-33 ON S.A.
I am the plaintiff. The present suit may be dismissed as
withdrawn with liberty to file afresh."
And the following order was passed by the Court -
"21.02.14.
Present: Plaintiff Nutan Tyagi with Counsel Sh. Manoj
Kumar.
Defendant in person with counsel Sh. Sunil
Chaudhary.
Counsel for the plaintiff submits that the plaintiff
wishes to withdraw the present suit with liberty to file
afresh.
Statement of the plaintiff recorded separately to
this effect.
RFA.No.795/2015 Page 20 of 27
In view of the same, the present suit filed by the
plaintiff is hereby dismissed as withdrawn with liberty to file
fresh suit.
File be consigned to record room."
26. The learned District Judge in the impugned judgment / order, without
giving any reason, has held that the liberty granted would entitle the
appellant/plaintiff only to file a fresh suit for injunction as was claimed in
the suit which was being withdrawn and not a suit for specific performance.
The correctness thereof is under challenge.
27. Order XXIII of the CPC titled "Withdrawal and adjustment of suits",
in sub-Rules (3) and (4) of Rule (1) thereof (in exercise of power
whereunder the earlier suit was permitted to be withdrawn with liberty
aforesaid) provides as under:
"(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal
defect, or
(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim, it may, on such
terms as it thinks fit, grant the plaintiff permission
to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in
RFA.No.795/2015 Page 21 of 27
respect of the subject-matter of such suit or such
part of the claim,
it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or 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 precluded from instituting any fresh suit in respect of
such subject-matter or such part of the claim."
(emphasis added)
28. Though the Court, in which the earlier suit filed by the appellant/
plaintiff for injunction was pending has not given any reason or expressed
any satisfaction that that suit was liable to fail for the reason of some formal
defect or there were any sufficient grounds for allowing the
appellant/plaintiff to institute a fresh suit, as ought to have been done but the
fact remains that the respondent/defendant present through counsel on that
date did not object thereto and the order permitting the earlier suit for
injunction to be withdrawn with liberty to file a fresh suit has attained
finality. Again, though the appellant/plaintiff did not withdraw the earlier
RFA.No.795/2015 Page 22 of 27
suit for injunction stating that he intended to file a suit for specific
performance of the agreement to sell but the liberty granted to the
appellant/plaintiff "to file a fresh suit" has to be judged in the light of Order
XXIII Rule 1(3)(b) supra of CPC and which liberty is to institute a fresh suit
"in respect of the subject matter of such suit" with the words "such suit"
meaning the suit, which was being permitted to be withdrawn. Thus, the
liberty granted to the appellant/plaintiff was to institute a fresh suit in respect
of the subject matter of the suit for injunction earlier filed. What has to be
seen is, whether the appellant/plaintiff can, exercising such liberty, only file
a suit for injunction or could add a relief of specific performance of
agreement to sell thereto.
29. I find a Division Bench of the High Court of Allahabad, as far back
as in Behari Lal Pal Vs. Srimati Baran Mai Dasi ILR (1895) XVII
Allahabad 53 to have held that the relief for recovery of rent which could
have been included in the prior suit, also for recovery of rent, and which was
permitted to be withdrawn with liberty to file a fresh suit, could be added to
the fresh suit. Reliance was placed on yet earlier judgment in Venkata
Shetti Vs. Ranga Nayak ILR 10 Mad. 160 holding that where a suit is
withdrawn with permission to bring a fresh suit, the effect of such
RFA.No.795/2015 Page 23 of 27
permission is to leave matters in the position they would have stood if no
such suit had been instituted. I find the said view to have been consistently
followed in i) J. Subba Row Vs. J. Rama Row AIR 1917 Mad. 948; ii)
Ghulam Muhammad Khan Vs. Nur Khan AIR 1917 Lahore 414; iii)
Becharam Choudhuri Vs. Purna Chandra Chatterji AIR 1925 Calcutta
845 (FB); iv) Bhimangouda Vs. Sangappa Irappa Patil AIR 1960
Karnataka 178; v) Sukumar Banerjee Vs. Dilip Kumar Sarkar AIR 1982
Calcutta 17; vi) Parmanand (Dead) through L.Rs. Vs. Prescribed Authority
(Munsif City), Meerut MANU/UP/0403/2001; and, vii) Times Publishing
House Ltd. Vs. The Registrar of Newspapers of India
MANU/KA/1457/2010 (DB).
30. Though I was reluctant to accept the aforesaid view in today‟s day
where litigation is often instituted to harass, oppress and to delay relief to
opposite party and not always for resolution of bona fide disputes and more
so in the facts of the present case, where it appears that the claim for specific
performance is being pursued to delay the ejectment of the
appellant/plaintiff as a tenant from the subject premises and taking
advantage of the death of the husband of the respondent/defendant and also
for the reason of a new view taken by the Supreme Court in M/s Virgo
RFA.No.795/2015 Page 24 of 27
Industries (Eng.) Pvt. Ltd. supra and which has not been dissented from in
any of the subsequent judgments and rather finds support from Coffee Board
supra but find myself bound by the judgment of the Division Bench of this
Court in Shri N.D. Tiwari Vs. Sh. Rohit Shekhar MANU/DE/3072/2010
holding that the term "subject matter" in Order XXIII Rule 1(3)(b) of CPC is
of wider amplitude than the term "cause of action" and to have followed
Ghulam Muhammad Khan supra, holding that the effect of permission
under Order XXIII Rule 1(3)(b) CPC is to leave matters in the position in
which they would have stood, if no such suit had been instituted.
31. According to M/s Virgo Industries (Eng.) Pvt. Ltd. supra the bar to
Order II Rule 2 CPC is attracted on the date of institution of the suit omitting
to claim a relief which could and ought to have been claimed therein and is
not dependent upon the decision of the suit. Therefrom it appears that the
said bar once attracted could not have been taken away by subsequent grant
of permission to withdraw that suit with liberty to file fresh one, specially
when no specific permission was taken to, in the new suit, claim the relief of
specific performance. However, as aforesaid, I am bound by the judgment
of the Division Bench of this Court in Shri N.D. Tiwari supra. As per the
said judgment, the effect of grant of permission to institute a fresh suit is as
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if the earlier suit had not been filed and as a consequence whereof the bar of
Order II Rule 2 CPC which was attracted on filing thereof would also
disappear.
32. The appeal thus, has to be allowed.
33. I however find that the suit from which this appeal arises was being
taken up along with a suit for ejectment of the appellant/plaintiff from the
premises filed by the respondent/defendant. The agreement to sell of which
the appellant/plaintiff claims specific performance is not a registered one.
The appellant/plaintiff cannot thus be said to be in possession of the
premises in part performance of the agreement to sell and benefit of Section
53A of the Transfer of Property Act, 1881 would thus not be available. This
question has been dealt by me in Jagdambey Builders Pvt. Ltd. Vs. J.S.
Vohra MANU/DE/0310/2016.
34. Thus, while allowing the appeal, it is clarified (i) that the pendency of
the suit for specific performance will not come in the way of the suit for
ejectment filed by the respondent/defendant against the appellant/plaintiff
and/or in execution of the decree therein; and, (ii) it will be open to the
respondent/defendant to apply to the Trial Court for an order that the
RFA.No.795/2015 Page 26 of 27
provisions of Section 52 of the Transfer of Property Act, 1881 and the
principle of lis pendens would not be attracted by the pendency of the suit
for specific performance, as has been held in Vinod Seth Vs. Devinder Bajaj
(2010) 8 SCC 1.
35. The appeal so succeeds. The impugned order/judgment and decree are
set aside. Axiomatically the suit is required to proceed to trial on other
issues. The plaintiffs to appear before the District Judge (North) Rohini
Courts, Delhi on 7th September, 2016. The Trial Court record requisitioned
be sent back forthwith.
No costs.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J.
JULY 22, 2016 „M/bs‟ RFA.No.795/2015 Page 27 of 27