Calcutta High Court
Shailja Agarwal vs Shreekant Somany on 4 May, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
1
Order Sheet Serial No........
G.A. No. 390 of 2007
CS No.241 of 2006
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
In the matter of :
SHAILJA AGARWAL
Vs
SHREEKANT SOMANY
Before:
The Hon'ble Justice
INDIRA BANERJEE
Mr. S.K. Kapur
Mr. Debal Banerji
Mr. Ranjan Bachawat
........ for defendant-petitioner.
Mr. Pratap Chatterjee
Mr. Abhrajit Mitra
Mr. Jishnu Chowdhury
....for plaintiff-respondent.
Date: 04.05.2010
JUDGMENT
This application filed by the defendant, is inter alia for revocation of the leave granted under Clause 12 of the Letters Patent, 1865 to institute the suit being C.S.No.241 of 2006 in this Court and for dismissal of the said suit on the ground of lack of territorial jurisdiction and also on the ground of the suit being barred by Order II Rule 2 of the Code of Civil Procedure, 1908.
The defendant is a member of Arabindo Housing Co-operative Society Ltd. and holds a flat at the ground floor of Premises No.2, Iron Side Road, Kolkata - 700 019, outside the jurisdiction of this Court. 2
According to the plaintiff, an agreement was executed on 16 th December, 2002, whereby the defendant agreed to transfer the said flat to the plaintiff, along with 10 shares held by him in the said Arabindo Housing Co-operative Society Ltd. for a consideration of Rs.1.65 crores.
The said agreement, inter alia, contained the following terms and conditions:
"2. The said price will be paid by the Transferee to the Transferor as follow, that is to say a sum of Rs.2,50,000/- will be paid on the execution of this agreement, as earnest money and the balance will be paid against transfer of the said shares and delivery of possession of the said Flat by the Transferor to the Transferee.
4. The said price will be paid by the Transferee to the Transferor within 15 days after required permission to transfer the shares and the rights of occupation and possession of the flat, garage and Driver's quarter shall be granted by the Committee of the Society and delivery of vacant possession of the said flat by the Transferor to the Transferee.
5. The Transferor shall obtain the consent permission/no objection of the Managing Committee of the said Society to the transfer of the flat, garage and Driver's quarter and also the 10 shares held by the Transferor in the said Society to the Transferee, before completion of the transfer. The Transferor shall execute a deed of conveyance in favour of the Transferee to complete her title but at the cost of the Transferee.
7. On obtaining such consent of the said Managing Committee of the Society, the Transferor shall deliver vacant possession of the said flat, garage and Driver's quarter to the Transferee against payment of the balance amount of Rs.162.50 Lacs (Rupees One Crore Sixty two Lacs and Fifty Thousand only) by the Transferee to the Transferor and shall also transfer the said shares and execute share transfer form for the said 10 shares bearing Nos.0023 and 0040 to 0048 held in the Society and represented by Share Certificate No.23 & 26 dated 26.12.1967 & 4.3.1976.
9. On the delivery of vacant possession of the said flat, garage and Driver's quarter and transfer of shares and conveyance being 3 granted, the Transferee will be the absolute owner thereof with all rights of occupation thereto as member of the said Society and thereafter the Transferor will have no right, title and interest therein.
12. The Transferor has represented to the Transferee that (i) as Member of the said Society and holding the said shares, he is the absolute owner of the said flat, garage and Driver's quarter and no other person has any interest therein, (ii) that there is no encumbrance on the said flat, garage and Driver's quarter (iii) that he has been in exclusive and peaceful possession and occupation of the said flat, garage and Driver's quarter, since it was acquired by him, (iv) that when the Transferor acquired the said flat, garage and Driver's quarter, he was satisfied that the title to the said flat was clear and marketable and is even now clear and marketable, (v) that on taking possession of the said flat, garage and Driver's quarter, the Transferee will be entitled to occupy the same without any claim or interruption from the Transferor or anybody claiming under him, (vi) that he will indemnify and keep indemnified the Transferee against any claim made for any period prior to the completion of sale in respect of the said flat, garage and Driver's quarter."
The plaintiff claims to have paid a sum of Rs.2,50,000/- on the date of execution of the agreement, that is, 16 th December, 2002, pursuant to and/or in terms of the said agreement. However, by a letter dated 21st December, 2005, the defendant purportedly cancelled the agreement, on the grounds stated therein.
The plaintiff filed a suit in the City Civil Court at Calcutta being Title Suit No.749 of 2005 inter alia claiming a declaration that the said letter dated 21st April, 2005 was of no legal effect and other related reliefs, including the relief of injunction restraining the defendant from transferring the flat to any other person. In the said suit, the plaintiff prayed for leave under Order II Rule 2.
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This suit has been filed seeking specific performance of the said agreement, after obtaining leave of this Court under Clause 12 of the Letters Patent. In the suit the plaintiffs claimed the following reliefs:
"a) Decree for specific performance of the agreement dated 16 th December, 2002 in the following manner:-
i) Delivery of 10 share certificates belonging to the Defendant in the Arabindo Housing Co-operative Society Ltd. along with necessary transfer deeds duly executed to the Plaintiff;
ii) Execution of necessary documents and taking of such steps as may be required by the plaintiff for transfer of the 10 number of shares in Arabindo Housing Co-operative Society Ltd. to the plaintiff, admission of the plaintiff as member of the said society, approval of the Registrar of Co-
operative Societies etc. for completion of the transfer of the said property in all respects to the Plaintiff;
iii) Execution of Deed of Conveyance in respect to the said property more fully described in paragraph 3 above in favour of the Plaintiff.
b) If the Defendant fails specifically to perform the said agreement, the Registrar, Original Side be directed to specifically perform the said agreement in the aforesaid manner;
c) Perpetual injunction restraining the Defendant from acting in any manner inconsistent with the terms of the said Agreement dated 16th December, 2002;
d) Receiver;
e) Injunction;
f) Costs;
g) Such further or other reliefs;"
This application for revocation of leave under Clause 12 of the Letters Patent, and dismissal of the suit, has been filed on the contention that, the suit being a suit in the nature of a suit for land situated outside the 5 jurisdiction of this Court, the same is not maintainable in the Original Side of this Court.
It has also been contended that the suit is barred by Order II Rule II since, on the face of the averments in the plaint, an earlier suit in respect of the same cause of action, had earlier been filed without leave under Order II Rule II of the Code of Civil Procedure.
Mr. Kapur appearing with Mr. Debal Banerjee and Mr. Bachawat submitted that the subject-matter of the suit was, right title and interest in property situated at Iron Side Road, outside the Original Side jurisdiction of this Court.
Mr. Kapur submitted that any decree that might be passed in the suit, would directly affect right and title to immovable property or directly bring about a change in the ownership and possession of the property in question.
Emphasizing paragraphs 1,2,3,4,5,8,18 and 20 of the plaint and Clauses 4,5,7,8,9 and 12 of the agreement annexed thereto, Mr. Kapur argued that the agreement provided for delivery of possession of the said flat and further provided that on delivery of possession, the plaintiff would become absolute owner thereof.6
Mr. Kapur submitted that having regard to the nature of the agreement and in particular having regard to the clauses of the agreement referred to above, the suit was in effect and in substance a suit for delivery of possession of land.
It was emphatically argued that a decree for specific performance of the agreement would, in effect, amount to a decree for delivery of possession of the said flat, since the Court would not enforce an agreement partially but would have to enforce the agreement in full.
It was submitted that the plaint had cleverly been drafted. On a meaningful reading of the plaint, it would be clear that the suit was, for all practical purposes, a suit for land.
In support of their submissions, the defendants cited the following judgments:
1. M/s. Moolji Jaitha & Co. vs. The Khandesh Spinning & Weaving Mills Co. Ltd. reported in AIR 1950 Federal Court 83.
2. Tridandeeswami Bhakti Kusum Sraman Maharaj & Ors. vs. Mayapore Shree Chaitanya Math & Ors. reported in AIR 1983 Cal.
420.
3. Nirala Properties Pvt. Ltd. vs. Circular Investment Trust Pvt. Ltd. & Ors. reported in 1993(1) CLJ 80.
4. Akla Builders Pvt. Ltd. vs. Cityscape Developers Pvt. Ltd.
(unreported) 7
5. Adcon Electronics Pvt. Ltd. vs. Daulat & Anr. reported in 2001 (7) SCC 698.
6. Brijmohanlal Rathi vs. Gita Devi Rathi & Ors. reported in AIR 1992 Cal. 67.
7. ITC Limited vs. Debts Recovery Appellate Tribunal & Ors. reported in 1998 (2) SCC 70.
Mr. Kapur further submitted that the suit was, in any event, liable to be dismissed on the ground of non-joinder of a necessary party, that is, Arabindo Housing Co-operative Society Ltd., since no decree in the suit could be passed in the absence of Arabindo Housing Co-operative Society Ltd.
Mr. Kapur submitted that the earlier suit in the City Civil Court had admittedly been filed without obtaining leave under Order II Rule II of the Code of Civil Procedure. The suit was thus liable to be dismissed on that ground alone. In support of the aforesaid submission Mr. Kapur cited Shankar Sitaram Sontakke & Anr. vs. Balkrishna Sitaram Sontakke & Ors. reported in AIR 1954 SC 352 and Sopan Sukhdeo Sable & Ors. vs. Assistant Charity Commissioner & Ors. reported in 2004 (3) SCC 137.
Mr. Kapur finally argued that the dispute sought to be raised in the suit was covered by the Co-operative Societies Act and a suit was thus barred. In support of the aforesaid submission Mr. Kapur cited Anjan 8 Chowdhury vs. Anandaneer Co-operative Registered Housing Society & Ors. reported in AIR 1990 Cal. 380.
Counsel appearing on behalf of the plaintiff, on the other hand submitted that the suit was not a suit in the nature of land. No relief had been claimed with regard to determination of title in respect of the suit property. This had categorically been pleaded in paragraph 20 of the plaint.
Mr. Mitra, led by Mr. Chatterjee, argued that ownership of land was admittedly with the defendant. The plaintiff had not raised any dispute in the suit with regard to title to land and as such there was no scope for determination of title. A decree for specific performance would in any event not amount to transfer of title from the defendant to plaintiff, for it was well-settled that a decree for specific performance did not result in transfer of title.
Mr. Mitra further submitted that no relief had been claimed for possession of the suit property. Counsel submitted that a perusal of the prayers in the plaint would also show that there was no claim in the suit for possession of the suit property.
Mr. Mitra cited Debendra Nath Chowdhury vs. Southern Bank Ltd. reported in AIR 1960 Cal. 626 where this Court held as follows: 9
"The foundation of this Court holding that a suit for specific performance, where the only relief claimed is a decree for execution of a document of transfer and nothing else is not a suit for land, is first the principle that it is a suit for enforcing a contract where the court is required to act only in personam; secondly, the cause of action for such specific performance is not the cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose; the cause of action for specific performance of a contract and not the cause of action for a titular or possessory claim for land; and thirdly, the context of clause 12 of the Letters Patent in providing three basic tests for suits (i) for land, (ii) cause of action and (iii) place of residence or business of the defendant,- clearly indicates that where Courts are intended to act in equitable jurisdiction in personam it is the second or third test which has to be applied. The fact that a decree for specific performance will result in ultimate possession being given or obtained, does not covert it into a suit for land, for in that case the suit for land would not have been grouped as a class by itself apart from the class governed by the test of the cause of action or the test of the place of residence or place of business of the defendant in Clause 12 of the Letters Patent. Historically, as Fry points out in his celebrated work on Specific Performance, 6 th Edition, page 7, the Old Common Law before equity in such cases commanded the Sheriff to deliver the land. Precisely because of that reason equity intervened to act in personam, so that now a decree for specific performance orders the defendant, or failing him this Court in his place, to execute a document of transfer. In modern jurisprudence and practice, this is now well settled. In Volume X, page 397 of Atkin's Encyclopaedia of Forms, the only prayer shown in the pleading is for specific performance and not for possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for point claim for specific performance and possession."
The judgment in Debendra Nath Chowdhury (supra) has been quoted and followed in an unreported judgment of this Court in Hindusthan National Glass & Industries Ltd. vs. Ganesh Kumar Agarwal delivered on 22 nd December, 2009.
Mr. Mitra submitted that even if the agreement of which specific performance has been claimed, contemplates handing over possession of 10 property, decree for possession cannot be granted in view of the specific bar of Section 22 (1) of the Specific Relief Act.
Mr. Mitra next argued that a clause in an agreement could not convert a suit for specific performance into a suit for land. The issue of whether a suit for specific performance of an agreement which contained clauses with regard to delivery of possession could be held to be suit in the nature of suit for land, has been considered in several judicial decisions and in particular the following decisions:
1. Hindusthan National Glass & Industries Ltd. vs. Ganesh Kumar Agarwal (unreported).
2. Adcon Electronics Pvt. Ltd. vs. Daulat & Another reported in 2001(7) SCC 698.
3. Hansraj Jain Karta of Hansraj Jain & Sons & Ors. vs. Santanu Chaudhury & Ors. reported in 2010 (1) CLT 274.
4. Prakash Kar vs. K.G. Ringshai (unreported), judgment of Delhi High Court.
5. Hazra Medical Stores Pvt. Ltd. vs. Biswanath Sarkar & Ors. reported in 2007 (1) CLT 656.
Mr. Mitra argued that the prayer for injunction in the plaint was not for restraining the defendant from dealing with the property but from acting in any manner inconsistent with the terms of the agreement. Referring to the unreported judgment in Hindusthan National Glass & Industries Ltd. vs. Ganesh Kumar Agarwal (supra), Mr. Mitra argued that such a relief of injunction would not make the suit a suit for land.
11
Dealing with the judgment cited by the defendant-petitioner, Mr. Mitra argued that the judgment of the Federal Court in M/s. Moolji Jaitha (supra) had been considered by this Court in Debendra Nath Chowdhury (supra). This Court held that specific performance of an agreement for sale, without delivery of possession, was not a suit for land.
Mr. Mitra submitted that the case of Tridandeeswami Bhakti Kusum Sraman Maharaj & Ors. vs. Mayapore Shri Chaitanya Math & Ors. (supra) the suit was not for specific performance of an agreement for sale of land, but for cancellation of certain deeds of appointments of Sebaits, perpetual injunction and other reliefs.
Mr. Mitra argued that the judgment in Nirala Properties Pvt. Ltd. vs. Circular Investment Trust Pvt. Ltd. & Ors. (supra) was in fact, in favour of the plaintiff.
Referring to paragraphs 10 and 11 of the judgment, Mr. Mitra argued that the Court had held that it was the plaintiff's choice whether or not to claim possession in a suit for specific performance of an agreement for sale of immovable property. The plaintiff had exercised its choice not to claim possession.
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Mr. Mitra submitted that the law had, in any case, now been settled finally by the Supreme Court in Adcon (supra). Mr. Mitra rightly submitted that Akla Builders Pvt. Ltd. (supra) was not a case for specific performance but an application under Section 9 of the Arbitration and Conciliation Act, 1996.
In response to the submission that the suit was bad for non-joinder of necessary parties. Mr. Mitra argued that in a suit for specific performance, the only necessary parties were the parties to the agreement sought to be specifically enforced and none else. In this context, Mr. Mitra cited Kasturi vs. Iyyamperumal & Ors. reported in (2005) 6 SCC 733.
Mr. Mitra argued that the plaintiff was in any case willing to add any party, if the Court was of the opinion that its presence was necessary. Mr. Mitra submitted that the plaintiff had not claimed any relief against any of the parties who had not been impleaded.
Mr. Mitra argued that the bar of suit under the West Bengal Co- operative Societies Act, 1983, would not be attracted since there was no dispute concerning the business or affairs of a co-operative society. 13
Mr. Mitra argued that it was well-settled that there could not be implied exclusion of a Civil Courts jurisdiction as held in Ramesh Chand Ardawatiya Vs. Anil Panjwani reported in AIR 2003 SC 2508.
Mr. Chatterjee, leading Mr. Mitra argued that the bar of Order II Rule II of the Code of Civil Procedure would not apply since the previous suit was held to be misconceived and not maintainable.
Reliance was placed on the Division Bench judgment of Lahore High Court in Sardari Mal vs. Hirde Nath reported in AIR 1925 Lahore 459. In the aforesaid case, a suit for injunction was dismissed by applying Section 56 (1) of the Specific Relief Act, 1877 corresponding to Section 41H of the Specific Relief Act, 1963, on the ground that specific performance was the appropriate remedy. The subsequent suit for specific performance was held not to be barred under Order II Rule 2 of the Code of Civil Procedure.
The aforesaid judgment had been followed by a Division Bench of High Court of Punjab and Haryana in Smt. Bhagwan Kaur vs. Sri Harinder Pal Singh reported in C1-(1992-1) Punjab Law Reporter 643 (at 645).
Mr. Chatterjee submitted that on an application of the defendant, the previous suit was held to be misconceived and barred by Section 41B. The defendant could not argue that the suit for specific performance was barred 14 by Order II Rule II. It was also argued that the application was not at the demurrer stage. The Court arrived at its finding upon full trial.
Mr. Chatterjee cited the judgment of the Delhi High Court in Sh. Suresh Kakkar and Anr. vs. Sh. Mahender Nath Kakkar & Ors. reported in 152 (2008) DLT 56 where the Delhi High Court held as follows:
"Thus, the defendant has to establish the precise cause of action upon which the previous suit was filed and since the plea raises a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. The plea of a bar under Order 2 rule 2, CPC can be established only if the defendant files in evidence the pleadings of the previous suit and thereby proves to the court the identity of the causes of action in the two suits. This clearly implies that before a plea of the bar under Order 2 Rule 2, CPC can be upheld, the defendant has to file the pleadings of the previous suit as and by way of evidence to prove to the court, the identity of the cause of action in the two suits. This automatically implies that before the court can return a finding or come to a conclusion that the plea of the bar under Order 2 Rule 2, CPC is well substantiated, the court, as a rule, would have to consider the pleadings in the previous suit which require to be filed by way of evidence by the defendant. In other words, the court cannot consider the plea of Order 2 Rule 2, CPC without travelling beyond the averments made in the plaint of the subsequent suit, a limitation which is placed on Order 7 Rule 11, CPC.
..................
This leaves no manner of doubt that there cannot be any inference about the bar of Order 2 Rule 2(3), CPC which may be culled out from the plaint in the second case and that the same can only be established in evidence by bringing the pleadings of the earlier suit on record. Thus, the position in law is clear. The plaint in the second suit by itself cannot be used for arriving at a conclusion with regard to the bar of Order 2 Rule 2, CPC in the absence of pleadings in the earlier suit."
The defendant-petitioner has prayed for dismissal of the suit and revocation of leave under Clause 12 of the Letters Patent mainly on three grounds. The first ground is that the suit, though for specific performance is in fact and in effect a suit in the nature of land which is admittedly situate outside the jurisdiction of this Court.
15
In the plaint, it is specifically pleaded that the plaintiff has not claimed any relief or possession of the property in question or for determination of title in respect of a property.
A perusal of the prayers shows that the plaintiff claimed decree for specific performance of the agreement dated 16 th December, 2002 in the following manner:
i) Delivery of share certificates in the Arabindo Housing Co-
operative Society Ltd. belonging to the defendant-petitioner along with duly executed transfer deeds,
ii) Execution of necessary documents and taking of necessary steps for transfer of the 10 shares in the Arabindo Housing Co- operative Society Ltd. to the plaintiff, admission of the plaintiff as member of the said society, approval of the registrar of co- operative societies etc. for completion of the transfer of the said property to the plaintiff,
iii) Execution of deed of conveyance in respect of the said property. In the event, the defendant did not perform the agreement there was a prayer on the Registrar, Original Side to specifically perform the agreement in the manner indicated above. An injunction was also sought restraining the defendant from acting in any manner inconsistent with the terms of the said agreement dated 16th December, 2002.
On the face of the averments in the plaint, the suit is for specific performance of an agreement to transfer the property in question to the plaintiff-petitioner at the agreed consideration. The petitioner has neither 16 sought any relief with regard to possession of property nor sought adjudication of any dispute with regard to title to property.
The question is whether the suit is in effect a suit for land having regard to the terms of the agreement which is sought to be specifically enforced.
In Moolji Jaitha (supra) the Federal Court considered the scope and ambit of the expression 'suit for land' in Clause 12 of the Letters Patent and held as follows:
"The view of a large majority of Judges thus appears to be that the expression 'suit for land' should not be narrowly confined and limited to suits for the recovery of possession of land or to obtain a declaration of title to land only. The wider meaning of the expression, so as to cover all suits relating to land, i.e., which has anything to do with land, does not appear to be accepted by anyone. That leaves the question wherein between the line of demarcation should be drawn. The Courts have differed in the matter of drawing this line under different circumstances, and the same Court has taken divergent views on the point. No judicial decision has attempted to give an exhaustive enumeration of the suits covered by the expression 'suit for land' and I do not propose to do so. It is sufficient to say that taking the suit as a whole, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly.
This view is supported by the decision of the Privy Council in Benode Behari v. Nistarini Dassi, 32 i.A.193: (33 Cal. 180 P.C.)...."
The Federal Court further held "The inclusion or absence of a prayer is not decisive of the true nature of the suit nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs 17 asked in the prayers are based. A plaintiff may ask for a relief which a Court of equity may not grant but I do not see any justification to non-suit the plaintiff because of such a prayer. That will be insisting on a form of pleading and not on the substance of the suit."
Mahajan, J. inter alia held "I would have agreed with the line of cases in which it has been held that what is speaking the expression 'suit for land' gathers following three classes of suits: (i) suits for determination of title to land; (ii) suits for possession of land; and (iii) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land."
Patanjali Sastri, J. held "I am of the opinion that the present suit is not a suit for land within the meaning of Cl. 12. The plaintiffs, as has been stated, do not claim possession or control of the lands, being already in possession and enjoyment thereof, nor do they ask for an adjudication of title to those lands. By their very demand for its transfer they concede that the legal title is vested in the defendants who have purchased the properties and got them entered in the Government records in their own names. All that the plaintiffs seek on this part of their case is the fulfilment of the personal obligation which, it is claimed, the law casts upon the defendants, to hold the properties for the benefit of the plaintiffs and to execute the necessary instruments conveying to them the legal title in those properties, an obligation arising out of the fiduciary relation between the parties and the 18 circumstances relating to the acquisition of the properties as alleged in the plaint. The position is thus analogous to that in a suit for specific performance where the plaintiff conceding the defendant's title claims a conveyance of it in accordance with the contract. And as the defendants reside, and carry on business in Bombay and are thus amenable to the jurisdiction of the High Court, that Court can act in personam and compel the defendants to fulfil their fiduciary obligation though such fulfilment has reference to lands situate outside the jurisdiction."
Mahajan, J. held "I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, so relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression. In each case the Court has to determine the true nature of the suit and then to say whether the suit is in substance a suit which affects land or immovable property or whether it falls in the category "other cases". Cases can be visualized where no dispute as to title is raised but compensation is claimed for trespass or for any wrong done to immovable property, or where a 19 mortgage abandons the security and claims a money decree in respect of a mortgage debt. All such cases will be outside the definition because though they may have reference to land or immovable property, no dispute as to title to such property has to be decided in them and the relief does not directly operate on the land."
In Tridandeeswami Bhakti Kusum Sraman Maharaj & Ors. vs. Mayapore Shree Chaitanya Math & Ors. (supra), a Division Bench of this Court held as follows:
"Under Cl.12 of the Letters Patent suits have been divided into two classes--(1) suits for land or other immovable property and (2) other suits. In the case of suits for land or other immovable property, the High Court will have jurisdiction to try such suits. If such land or immovable property is situate wholly within the local limits of the ordinary original jurisdiction of the High Court. Where the land or immovable property is situate partly within the local limits and partly outside such limits, such suit can be instituted in the High Court only after first obtaining leave of the High Court under Cl.12. in the case of other suits, such suits can be instituted in the High Court if the case of action arises wholly within the local limits of the ordinary original jurisdiction of the High Court or the defendant resides or carries on business or works for gain within such limits. There, however, the cause of action arises in part only within such limits, the suit can be instituted after first obtaining leave under Cl.12. thus leave under Cl.12 is required to be taken in the case of a suit for land or other immovable property, if a part of such land or other immovable property is situate within the local limits of the ordinary original jurisdiction of the High Court and, in the case of other suits, if a part of the cause of action arises within such limits.
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In our opinion, the question whether, out of several reliefs in the plaint, the claim for the grant of a particular relief which does not relate to title to, or possession, control or management of land or buildings or other immovable property, is the primary object of the suit or not, has to be decided by applying the test whether such relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of any adjudication on the question of title to any land or buildings or other immovable property, or possession, control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immovable property within the meaning of Cl.12 of the Letters Patent, although the grant of such relief may indirectly affect land or other immovable property. If, however, by applying the test it is 20 found that such relief cannot be granted without deciding the question of title to, or possession, control or management of land or other immovable property, the claim for the grant of such relief cannot be the primary object of the suit and, in that case, the suit will be a suit for land or other immovable property within the meaning of Cl.12 of the Letters Patent."
In Nirala Properties Pvt. Ltd. vs. Circular Investment Trust (supra) Ajoy Nath Ray, J. held as follows:
"It is settled law that a decree for specific performance of an agreement for sale of land simpliciter is not a suit for land although the same would ultimately cause a transfer of title of the land. The case of (1) Debendra v. Southern Bank Ltd. reported in AIR 1960 Cal. 626 is an authority for this proposition.
There is, however, now a binding decision of the Supreme Court to this effect that the plaintiff might elect to treat his prayer for specific performance as containing a prayer for possession of the land in respect of which specific performance is sought. That case of (2) Baboo Lall v. Hazari Lall is to be found reported in AIR 1982 SC 818.
In case the agreement for which specific performance is sought contains a clause apart from an agreement for conveyance of title that the land itself would be handed over by the vendors to the vendees, then and it that event, the claim for specific performance of the whole agreement would include within it a claim for possession of land, thus converting it into a suit for land. A Division Bench judgment of this Court in the case of (3) Debabrata Tarefdar reported in 87 CWN 54 is an authority for the said proposition.
Another recent Division Bench decision of this Court in the case of (4) Brijmohon Lall Rathi reported in AIR 1992 Cal. 67 has, however, clarified that in case a claim for specific performance is made in a suit, the same cannot automatically be regarded as a suit for land even if no possession is asked for by the plaintiff.
The joint reading of the above two Division Bench judgments would lead up to this result that, in case of an agreement for sale or conveyance of land, where there is no specific clause which agrees upon delivery of possession to be given subsequent to the execution of the said presents, even a prayer simpliciter for specific performance of the agreement can be treated at the choice of the plaintiff either as a prayer containing in built in it a prayer for possession of the land (like in the above Supreme Court case) or it might be treated as a suit simpliciter for specific performance of the said agreement merely in personam, on the line of the judgment given in Brijmohan Lall Rathi's case"21
The judgment in Nirala Properties was rendered long before the judgment of the Supreme Court in Adcon Electronics Pvt. Ltd. (supra). In Adcon, the Supreme Court held as follows:
"From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land" or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case.
In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:
"22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief."
It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit for specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject- matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for."22
In view of the judgment of the Supreme Court in Adcon's case (supra) this Court is constrained to hold that the suit in this case is not a suit for land.
The next issue is whether the suit is liable to be dismissed at the demurrer stage, on the ground of non-joinder of Arabindo Housing Co-
operative Society.
As rightly argued by Mr. Mitra the necessary parties to a suit for specific performance of an agreement are the parties to the agreement. This view finds support from the judgment of the Supreme Court in Kasturi vs. Iyyamperumal (supra) Whether specific performance of the agreement can be granted or not might be decided at the appropriate stage.
There is, however, substance in the submission that, on the face of the averments in the plaint, the suit is hit by the bar of Order II Rule II of the Civil Procedure Code, and is thus barred under Section 12 of the Civil Procedure Code. The relevant pleadings in the plaint are as follows:
"In the meantime the plaintiff filed a suit in the Learned City Civil Court at Calcutta being T.S. No.749 of 2005 with leave under Order 2 Rule 2 of the Civil Procedure Code for the following reliefs:
a) Declaration that the letter dated 21 st April, 2005 contained in Annexure "C" to the plaint was and is null and void and/or invalid and/or of no legal effect;
b) Decree for delivery up cancellation of the letter dated 21 st April, 2005 contained in Annexure "C" hereof;23
c) Decree for perpetual injunction restraining the defendant his servants, agents and/or assigns from giving effect and/or further effect to the letter dated 21 st April, 2005 contained in Annexure "C"
hereof;
d) ................................................................... .....................
Along with the aforesaid suit, another suit was filed by one Vinita Agarwal in respect of the first floor of the said premises being T.S. No.748 of 2005. The facts in both the cases are similar. The defendant in T.S. No.748 of 2005 and T.S. No.749 of 2005, similar applications for rejection of the plaint were filed by the defendants' therein. The plaint filed in T.S. No.748 of 2005 has already been rejected by judgment and order dated 7 th October, 2005 essentially on the ground that the appropriate relief which the plaintiff ought to have asked for is specific performance of the Agreement dated 16 th December, 2002. The same judgment is likely to follow in T.S. No.749 of 2005.
...................
The Defendant for the first time refused to specifically perform the said agreement by letter dated 21 st April, 2005. As such, no part of the claim is barred by limitation."
In paragraph 25 of the petition, it is expressly pleaded that in T.S. No.342 of 2005 filed in the City Civil Court at Calcutta, the plaintiff had inter alia prayed for leave under Order II Rule II of CPC and a declaration that the letter dated 21 st April, 2005 was null and void and of no legal effect. No claim for specific performance of the agreement dated 16th June, 2002 was made in the said suit. Moreover, no leave under Order II Rule 2 was granted in the said earlier suit.
The averments in paragraph 25 of the petition have been dealt with in paragraph 13 of the Affidavit-in-Opposition, in the following manner:
"With reference to the contents of paragraph25 to 30 of the said application, save what appears from the plaint filed in T.S. No.749 of 2005, allegations contrary thereto are denied and disputed. I do not admit the 24 allegation that no leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 was granted by the learned Court in the earlier suit. I shall make appropriate submissions in this regard at the time of hearing, if necessary. No leave under Order 2 Rule 2 is required for filing the present suit for specific performance. The earlier suit was not decided on merits. Anyhow the defendant having had my earlier suit dismissed for not claiming specific performances cannot now seek rejection of the plaint for claiming specific performance......
I deny that the matters in issue in the present suit were directly or substantially in issue in the earlier suit or that the suit is barred by res judicata or any principle analogous thereto or otherwise as alleged or at all. I deny that the reliefs claimed in the suit are barred by law or cannot be granted as alleged or at all..."
It is admitted in the plaint itself that the earlier suit was in respect of the same cause of action. Furthermore the plaint in the earlier suit was produced at the time of hearing.
Admittedly no leave under Order II Rule 2 was obtained in the earlier suit, even though there was a prayer for such leave in the plaint.
Order II Rule 2 of the Code of Civil Procedure, 1908 provides as follows:
"O.II R.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.
Relinquishment of part of claim.--(2) 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.
Omission to sue for one of several reliefs.--(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any or 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.25
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 provision of Order II Rule 2 is founded on the principle that a person shall not be vexed twice for the same cause. The provision is directed both against the splitting up of claims and the splitting up of remedies.
Order II Rule 2 (1) requires inclusion of the whole claim arising out of one cause of action in one suit. For application of Order II Rule 2, the Court has to look into the cause of action for the claim in the earlier suit and the later suit and ascertain whether the claim made in the subsequent suit could have been made in the previous suit.
The Court would thus have to be satisfied that the first and the second suit arose out of the same cause of action, or else, the cause of action on which the subsequent claim was based, had already arisen when the plaintiff sought enforcement of the first claim.
Under Order II Rule 2 (3), a plaintiff entitled to sue for more than one relief, may sue for all or any of such reliefs, but if the plaintiff omits to claim any relief, which could have been claimed, without leave of the Court to sue for such reliefs, the plaintiff would be debarred from filing any suit in future, for those reliefs. The reasons for omitting reliefs are irrelevant. Even though any reliefs might have been omitted in order to bring the suit within the jurisdiction of a Court, future suit for the reliefs omitted would still be barred, in the absence of leave of Court under Order II Rule 2(3). 26
Both the suits were between the same parties. Since the plaintiff became entitled to claim specific performance before the suit in the City Civil Court was filed, the plaintiff was not entitled to institute a fresh suit for the relief of specific performance, no leave having been obtained in the earlier suit under Order II Rule 2(3).
Order 7 Rule 11 of the Civil Procedure Code casts a duty on the Court to reject the plaint, where the suit appears from the statements in the plaint, to be barred by any law. As observed above, the suit in the instant case is hit by Order 2 Rule 2 and hence barred under Section 12 of the Civil Procedure Code.
As held by the Supreme Court in Sopan Sukhdeo Sable & Ors. vs. Assistant Charity Commissioner & Ors.(supra) the bar under Order 7 Rule 11 can be exercised at any stage, before registering the plaint, after issuing summons to the defendant or at any time before the conclusion of the trial. For the purpose of deciding an application under Clause D of Order 7 Rule 11, the averments in the plaint are germane.
As held in the aforesaid case, if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue, the Court should exercise its power 27 under Order 7 Rule 11 taking care to see that the ground mentioned therein is fulfilled.
The express averment in the petition that no leave under Order 2 Rule 2 was granted in the previous suit, has been dealt with in the Affidavit-in- Opposition, with the sweeping averment "I do not admit that no leave was granted". In fact, no leave was granted. This was admitted in course of arguments and is apparent from the pleadings in the Affidavit-in-Opposition referred to above. It would thus not be appropriate for this Court to allow the trial to proceed in a suit, that is, patently barred.
The application is thus disposed of by passing an order in terms of prayer (b) of the petition.
The suit being C.S. 241 of 2006 is dismissed and the plaint directed to be taken of the file.
Stay of operation of the judgment and order as prayed for, is granted for a period of fortnight from date.
(Indira Banerjee, J.)
28
Order Sheet Serial No........
G.A. No. 391 of 2007
CS No.231 of 2006
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
In the matter of :
VINITA AGARWAL
Vs
HIRALAL SOMANY
Before:
The Hon'ble Justice
INDIRA BANERJEE
Mr. S.K. Kapur
Mr. Debal Banerji
Mr. Ranjan Bachawat
........ for defendant-petitioner.
Mr. Pratap Chatterjee
Mr. Abhrajit Mitra
Mr. Jishnu Chowdhury
....for plaintiff-respondent.
Date: 04.05.2010
JUDGMENT
The issues in this application being identical to issues involved in G.A. 390 of 2007, this application is disposed of in terms of prayer (b) for the reasons discussed in the judgment and order passed in the said application earlier today.
(Indira Banerjee, J.)