Kerala High Court
Sasidharan Nair vs Kunju Mohammed Unni on 24 June, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939
R.F.A.No.752 of 2008(D)
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AGAINST THE JUDGMENT IN O.S.NO.201/2007 OF SUB COURT, PERUMBAVOOR
DATED 24-06-2008
APPELLANT/DEFENDANT:
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SASIDHARAN NAIR, AGED 54 YEARS,
S/O.SREEDHARAN PILLAI, 203, PANCHAVADI FLATS,
AMBELIPADAM ROAD, VYTTILA P.O., KOCHI-682 019.
BY ADVS. SRI.G.SHRIKUMAR (SR.)
SRI.R.SANJITH
SMT.C.S.SINDHU KRISHNAH
RESPONDENTS/PLAINTIFFS:
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1. KUNJU MOHAMMED UNNI, AGED 47 YEARS,
S/O. MOHAMED, HASEENA MANZIL, KUTTIKKATTUKARA,
ALUPURAM P.O., KADUNGALUR VILLAGE, PARAVOOR
TALUK.
2. K.M.SALIM, AGED 55 YEARS,
S/O. K.N.M.HUSSAIN, C.C.35/1845, SOUTH JANATHA ROAD,
PALARIVATTOM KARA, PUNITHURA VILLAGE.
3. P.C.KHADER, AGED 67 YEARS,
S/O. MOHAMMED, P.C.HOUSE, AZAD ROAD,
KALOOR, KOCHI - 17.
BY ADVS. SRI.R.D.SHENOY (SR.)
SRI.P.K.MUHAMMED
SRI.P.K.RAVISANKAR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
03.08.2017, THE COURT ON 10.08.2017 DELIVERED THE FOLLOWING:
RFA752/2008
-2-
APPENDIX
ANNEXURE TO THE APPEAL:
ANNEXURE A1 - TRUE COPY OF THE MEMO INFORMING THE REMITTANCE OF RS.10
LAKHS.
-TRUE COPY-
PS TO JUDGE
"CR"
V. CHITAMBARESH & SATHISH NINAN, JJ.
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R.F.A.No.752 of 2008
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Dated this the 10th day of August, 2017
JUDGMENT
Chitambaresh, J.
"Specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit"
observed Lord Cranworth in Eads v. Williams [(1854) 4 D.M.& G. 691] and quoted by Stirling J. in Levy v. Stogdon [(1898) 1 Ch.D 484]. The above observation still holds good in law a century and a half later as is revealed from the facts unfolded in the present case.
2. The decree for specific performance of Ext.A1 RFA752/2008 -: 2 :- agreement for sale granted in O.S.No.201/2007 is assailed on the ground that the suit is hit by Order II Rule 3 of the Code of Civil Procedure, 1908 ['the CPC' for short]. The plaintiffs had earlier filed O.S.No.336/2005 on the file of the Court of the Munsiff of Perumbavoor wherein one of the reliefs is a decree for injunction against alienation. Prayer
(b) in Ext.B1 plaint in O.S.No.336/2005 is extracted below:
"(b) to pass a decree and judgment against the defendant by passing permanent prohibitory injunction from alienating the plaint 'A' schedule property in favour of third party and against committing waste in the property".
Interim injunction sought therein in I.A.No.2419/2006 was declined by Ext.A14 order observing that the plaintiffs have not filed a suit for specific performance even after the time fixed in the contract has expired. The appeal filed therefrom as C.M.A.No.19/2007 on the file of the Court of the RFA752/2008 -: 3 :- Additional District Judge of North Paravur was refused to be entertained by Ext.A13 judgment. The said judgment was challenged by the plaintiffs in W.P.(C).No.11654/2007 on the file of this Court which was disposed of by Ext.A12 judgment at the stage of admission itself. It appears from Ext.A12 judgment that leave was granted to the plaintiffs to withdraw from O.S.No.336/2005 even without issuing notice to the defendant or hearing him.
3. The plaintiffs in the meanwhile had filed O.S.No.201/2007 on the file of the Court of the Subordinate Judge of Perumbavoor for a decree directing the defendant to execute the sale deed. The plaintiffs contended that a sum of `10,00,000/- was paid as advance on the date of Ext.A1 agreement itself followed by payment of `5,00,000/- and `15,00,000/- later. It is the case of the plaintiffs that the defendant did not come forward to execute the sale RFA752/2008 -: 4 :- deed after receiving the balance sale consideration and hence the suit. The defendant maintained that the plaintiffs cannot again sue for the relief of specific performance after having filed a suit for a decree of injunction against alienation earlier. The defendant added that the discretion under Section 20 of the Specific Relief Act, 1963 ['the Act' for short] has to be exercised against the plaintiffs in the facts and circumstances. The court below has decreed the suit directing the defendant to execute the sale deed on the plaintiffs depositing the balance sale consideration within a stipulated time. The defendant has come up in this regular first appeal under Section 96 read with Order XLI Rule 1 of the CPC seeking to set aside the decree of the court below on various grounds.
4. We heard Mr.G.Sreekumar, Senior Advocate on behalf of the appellant/defendant and Mr.R.D.Shenoy, Senior Advocate on behalf of the respondents/plaintiffs. RFA752/2008 -: 5 :-
5. We may at the outset refer to Order II Rule 3 of the CPC which is extracted below:
"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 relief; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation - For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
The cause of action alleged by the plaintiffs in O.S.No.336/2005 was that the defendant was negotiating with third parties for alienating the property thereby frustrating Ext.A1 agreement for sale. The plaintiffs on the RFA752/2008 -: 6 :- same cause of action were also entitled to sue for specific performance of Ext.A1 agreement for sale which was however omitted to be done. This is particularly so when the period fixed for the performance of the contract in Ext.A1 agreement as extended till 25.10.2005 as per Ext.A1(a) endorsement had by then expired. The plaintiffs cannot sue for specific performance in O.S.No.201/2007 after having omitted to sue for the said relief in O.S.No.336/2005 which was for injunction simplicitor. The bar operates whether or not the period for performance of the contract has expired as explained in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. [(2013) 1 SCC 625]. It was held therein as follows:
"14. The averments made by the plaintiff in C.S.Nos.831 and 833 of 2005, particularly the pleadings extracted above, leave no room for doubt that on the dates when C.S.Nos.831 and 833 of 2005 were instituted, namely, 28-8-2005 RFA752/2008 -: 7 :- and 9-9-2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27-7-2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject- matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S.Nos.831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court.
15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in C.S.Nos.831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated RFA752/2008 -: 8 :- 27-7-2005 had not elapsed. According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the legal notice dated 24-2-2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court. We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, can not per se be dismissed to be presented on a future date."
6. The decision in Virgo Industries' case (supra) was later distinguished in Ratnavathi v. Kavita Ganashamdas [(2015) 5 SCC 223] and Inbasagaran and another v. S.Natarajan [(2015) 11 SCC 12]. It was held therein that the bar under Order II Rule 3 of the CPC will not operate to a suit for specific performance if the earlier suit was one for a decree of injunction against dispossession only. The RFA752/2008 -: 9 :- following observation in Inbasagaran's case (supra) is apposite:
"29. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement."
(emphasis supplied) But the plaintiffs in O.S.No.336/2005 had specifically alleged that the defendant was negotiating for the sale of the property in favour of third parties in order to frustrate Ext.A1 agreement for sale. We have no doubt in our mind that the 'cause of action' in O.S.Nos.336/2005 and 201/2007 overlap which is 'a bundle of facts required to be pleaded and proved for obtaining relief'. RFA752/2008 -: 10 :-
7. The plaintiffs inter alia contended that the bar under Order II Rule 3 of the CPC would not operate since O.S.No.201/2007 was pending when O.S.No.336/2005 was permitted to be withdrawn (O.S.No.201/2007 was filed on 3.4.2007 whereas O.S.No.336/2005 was permitted to be withdrawn by Ext.A12 judgment dated 9.4.2007 and consequential orders passed by trial court). This has little impact on the bar under Order II Rule 3 of the CPC as has been clarified in Virgo Industries' case (supra) as follows:
"However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II, Rule 2 of the CPC as already discussed by us, namely, that Order II, Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II, Rule 2 of the CPC will apply only if the RFA752/2008 -: 11 :- 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,8 Rule 2 of the CPC will apply to both the aforesaid situations."
The plaintiffs had admittedly not applied for permission to withdraw from O.S.No.336/2005 with liberty to institute a fresh suit in respect of the subject matter on the same cause of action as enjoined in Order XXIII Rule 1(3) of the CPC. The permission obtained was by Ext.A12 judgment in an original petition filed under Article 227 of the Constitution of India without notice to the defendant. Ext.A12 judgment does not therefore bind the defendant who is entitled to ignore the same [see Thambi v. Mathew (1987(2) KLT 848(FB) and Ayanikkattu Unniraja v. Gurudas (2014 (1) KHC 473)]. The irresistible conclusion is that the plaintiffs cannot sue for the relief of specific performance in O.S.No.201/2007 in view of the omission to sue in O.S.No.336/2005.
RFA752/2008 -: 12 :-
8. We overrule the decision in Josey Francis v. Sunoj K. Balan [2009(3) KLT 240] wherein it is held that the relief of specific performance can be granted even if omitted to be claimed in the earlier suit for injunction against alienation. We are not obliged to consider either the discretion under Section 20 to grant specific performance or a relief of refund of the amount paid as advance under Section 22 of the Act in a suit so not maintainable. The conspectus of events however disclose that it was the defendant who first issued Ext.A2 notice expressing his willingness to execute the sale deed replied to by Ext.A3 notice. O.S.No.336/2005 was filed thereafter on 10.11.2005 and the proceedings protracted for almost 16 months till Ext.A9 notice dated 2.3.2007 was again issued by the plaintiffs. We also find that there is a discrepancy in the extent of the property agreed to be conveyed even though centage value was fixed as consideration in Ext.A1 agreement. The extent varied from RFA752/2008 -: 13 :- 57.15 Ares in Ext.A6 basic tax receipt to 67.57 Ares in Ext.B7 basic tax receipt even though Ext.C1(a) plan reflected the extent as 67.37 Ares. We are satisfied that the conduct of the plaintiffs in procrastinating the matter as well as the discrepancy in extent are sufficient to exercise the discretion against the plaintiffs in granting specific performance.
9. We would have dismissed the suit but for the gesture shown by the defendant in offering to repay the sum of `30,00,000/- received as advance to the plaintiffs with interest accrued thereon. Mr.G.Sreekumar, Senior Advocate gracefully submitted on behalf of the defendant that retention of the amount received from the plaintiffs would entail in unjust enrichment. We quite appreciate the stand since a fresh suit by the plaintiffs for return of the amount paid as advance would be hit by Order II Rule 3 of the CPC and also be barred by limitation. We therefore grant a decree RFA752/2008 -: 14 :- to the plaintiffs for a sum of `30,00,000/- to be realized from the defendant with interest thereon at 9% per annum from the date of plaint till realization. The amount will be a charge on the property covered by Ext.A1 agreement in terms of Section 55(6)(b) of the Transfer of Property Act, 1882 and the impugned decree is modified accordingly. The regular first appeal is allowed. No costs.
Sd/-
V. CHITAMBARESH, JUDGE Sd/-
SATHISH NINAN, JUDGE Sha/030817
-True copy-
PS to Judge