Gujarat High Court
Kamleshbhai Atmaram Patel vs Raiben Wd/O Bhikhaji Marsangji & 6 on 11 August, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/FA/2477/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2477 of 2015
With
APPEAL FROM ORDER NO. 357 of 2015
With
CIVIL APPLICATION NO. 13088 of 2015
In
FIRST APPEAL NO. 2477 of 2015
With
CIVIL APPLICATION NO. 12990 of 2015
In
APPEAL FROM ORDER NO. 357 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
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KAMLESHBHAI ATMARAM PATEL....Appellant(s)
Versus
RAIBEN WD/O BHIKHAJI MARSANGJI & 6....Defendant(s)
================================================================
Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE with MR BB NAIK, SENIOR ADVOCATE
assisted by MR PARTHIV B SHAH, ADVOCATE for the Appellant(s) No. 1
ABHISST K THAKER, CAVEATOR for the Defendant(s) No. 1 - 4
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MR NIRAL R MEHTA, CAVEATOR for the Defendant(s) No. 5
MR PC KAVINA, SENIOR ADVOCATE assisted by MR AMRISH K PANDYA,
CAVEATOR for the Defendant(s) No. 6 - 7
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. The present appeal under Section 96 of Civil Procedure Code is preferred against the order dated 19.11.2015 passed by Civil Judge (Senior Division), Ahmedabad (Rural) below application Exh.13 in Special Civil Suit No. 495 of 2015.
2. The appellant is the original plaintiff who preferred a Suit for specific performance of contract and permanent injunction, where defendant nos. 6 and 7 filed an application Exh.13 under Order-7 Rule-11 of Code of Civil Procedure (hereinafter referred to as 'the CPC' for the sake of brevity). By the impugned order, 3rd Additional Senior Civil Judge, Ahmedabad (Rural) rejected the plaintiff's interim injunction application Exh.5 and at the same time, granted the application Exh. 13 under Order-7 Rule-11 of CPC filed by defendant nos.6 and 7 thereby the suit of the plaintiff was rejected with costs. The appellant (hereafter referred to as 'the Page 2 of 33 HC-NIC Page 2 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT plaintiff' and respondents as 'the defendants' for the sake of brevity).
3. The facts in brief are as under:-
3.1 The dispute is with regard to an agricultural land bearing Block No. 104 admeasuring 53369 sq.mtrs.
situated at Village: Jagatpur, Tal.: Daskroi, Dist.:
Ahmedabad and which is now covered under Town Planning Scheme No. 65 bearing Final Plot No. 208 admeasuring 3217 sq.mtrs.
3.2. The suit is filed on the strength of an agreement to sale dated 25.08.2009 executed by the defendant no. 1 to 3 with the consent of defendant no. 4 in favour of the plaintiff for a consideration of Rs.58,98,200/- and at the time of agreement to sale an amount of Rs.11,00,000/- was paid towards the part consideration. Alongwith the agreement to sale, a declaration-cum-Indemnity bond was also executed by defendant no. 1 to 4, supplementary-cum- possession agreement was also executed on the same day. It is the case of the plaintiff that, under aforementioned document, the possession of the suit property was handed over to him. The present Civil Suit being Special Civil Suit No.495 of 2015 is filed for specific performance of contract.
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HC-NIC Page 3 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT 3.3. Despite the above, the defendant no.1 to 4 executed a registered sale deed dated 13.07.2015 in favour of defendant no. 6 to 7 for which Regular Civil Suit No. 589 of 2015 was filed by the plaintiff for the protection of the possession of the plaintiff. 3.4 An application Exh.13 came to be filed by the defendant no.6 and 7 contending that the suit is barred under Order-2 Rule-2 of CPC, in view of filing of Regular Civil Suit No. 589 of 2015 which is the suit for similar nature and also the suit is barred by law of limitation and Specific Relief Act.
3.5 The 3rd Additional Senior Civil Judge, Ahmedabad (Rural) by an order dated 19.11.2015 rejected the application Exh.5 filed by the plaintiff and allowed application Exh.30 of the defendant no.6 and 7, thereby rejecting the plain under Order-7 Rule-11 of CPC.
4. Relevant facts.
4.1. The Appeal from Order No. 357 of 2015 is also filed by the appellant against the same order, by which application Exh.5 of the plaintiff is rejected. Therefore, by a separate order dated 27.01.2016, the Appeal from Order is appears to have been placed alongwith the First Appeal. Both the parties have no Page 4 of 33 HC-NIC Page 4 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT objection, if the First Appeal as well as the Appeal from Order are heard and disposed of together. That on 30.12.2005, the original owners i.e. defendant no.1 to 3 executed a registered sale deed in favour of one Patel Girishbhai Prahladbhai and Patel Keshavlal Somdas in connection with the same land (Page no. 272 of the paper book).
4.2 The suit land being of restricted tenure, required permission under Land Revenue Code and since the same was not taken, the proceeding under Section 84 (C) of the Land Revenue Code were undertaken and by an order dated 21.12.2009 the transfer of the suit land under the registered sale deed was canceled and directions were given to put the land back its its original position within a period of three months. On 25.08.2009, Banakhat in favour of the plaintiff in connection with the suit land was executed and alongwith Banakhat, a possession deed and declaration and indemnity bond were executed and general power of attorney of the same date was executed in favour of the plaintiff.
4.3 The defendant nos. 1 to 3 thereafter executed a registered Banakhat in favour of defendant no.6 (Page No.
374) and in favour of defendant no. 5 (Page No. 136) in the year 2010.
Page 5 of 33 HC-NIC Page 5 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT 4.4 On 29.10.2011, a cancellation deed was executed by Girishbhai Patel in whose favour defendant nos. 1 to 3 had executed a registered sale deed in the year 2005/2006.
4.5 On 19.05.2015, the Collector, Ahmedabad passed an order of declaring the suit land as non-agriculture, on the basis of the application by defendant No.1 and others dated 29.02.2012 under Section 43 of the Land Revenue Code. Thereafter, on 08.06.2015, the sale deed was executed by the defendant nos. 1 to 4 in favour of defendant nos. 6 and 7 which became the subject matter of challenge of the suit filed by the plaintiff being Regular Civil Suit No.589 of 2015.
4.6 On 22.08.2011, a draft town planning scheme was formed, by which, the Suit land was given Plot No. 104 Plan (page no. 337 and 342) shows the existence of Plot No. 104. Referring to this plot, a letter addressed by the defendant no.7 to the town planning officer dated 24.08.2015 (Page no. 500) refers too and admits the possession of the plaintiff in the form of existence of some cabins which is also shown in the photographs (Page no. 227).
5. Contentions of the plaintiff 5.1. It is submitted that the trial Judge has Page 6 of 33 HC-NIC Page 6 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT committed error in applying Order-2 Rule-2 of CPC and holding that the present Suit being Special Civil Suit No. 495 of 2015 is hit by Order-2 Rule-2, in view of filing of Regular Civil Suit No. 589 of 2015. It is contended that, plain reading of the Plaint in both the suits, would reveal that, cause of action for filing of the suit and the relief prayed for are quite distinct and separate. As the plaintiff - appellant was put in possession, since long under valid document, there was no reason for the plaintiff to institute any proceedings, but on getting the knowledge of the execution of sale deed of the suit land, the first and foremost step of the plaintiff was to protect his possession from bing dispossessed on the strength of the execution of the sale deed of which the knowledge was received by the plaintiffs, whereas the 2nd Suit was filed for specific performance on the strength of document executed in the year 2009 in favour of plaintiff.
5.2 It is submitted that the cause of action and prayer clause in Special Civil Suit No.495 of 2015 is quite different from that of Regular Civil Suit No.589 of 2015. Learned Senior Advocate took this Court through the relevant clauses of both the plaints pertaining to cause of action as well as prayer clause. It is submitted that when the appellant received information Page 7 of 33 HC-NIC Page 7 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT about sale deed dated 20.09.2015 by defendant No.1 to 4 in favour of defendant Nos.6 and 7, that was the cause of action as the plaintiff apprehended disturbance in his continuing possession and occupation of the suit land and hence, Regular Civil Suit No.589 of 2015 was filed whereas in the present suit, which is for specific performance of contract, cause of action is different and based on "Banakhat", the terms of which were sought to be specifically performed upon failure of defendant Nos.1 to 3 to perform their part after the suit land was declared NA.
5.3 It is further submitted that while passing the impugned order, Civil Judge has failed to consider the ratio of the judgment of the Apex Court in the case of Rathnavathi & Anr. Vs. Kavita Ganashamdas, reported in (2015) 5 SCC, 223, wherein the Apex Court has held that bar contained in O-2, R-2 of the Civil Procedure Code is not attracted where there is distinct and separate cause of action of filing of two suits. It is submitted that the defendants have failed to show that the second suit was also in respect of the same cause of action which is the basic requirement for invoking O-2, R-2 of the Civil Procedure Code.
5.4 The other contentions of the plaintiff is that the learned Civil Judge has misinterpreted Article-54 of Page 8 of 33 HC-NIC Page 8 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT the Limitation Act, which is reproduced herein-below:-
Description of Period of Time from which suits limitation period begins to run
54. For specific Three years The date fixed for performance of a the performance, contract or, if no such date is fixed, when the plaintiff has noticed that performance is refused.
5.5 It is contended that Article-54 provides for two contingencies, viz. (i) where the date is fixed for the performance of a contract, then the period of limitation is three years from the date fixed, and (ii) where no such date is fixed then the period is of three years when plaintiff notices that performance is refused.
In this case, the date of specific performance of the contract was stipulated to be 3 months from the date on which the land is converted from new tenure to old tenure and hence when the order of conversion from new tenure to old tenure is dated 19.05.2015 and the suit is filed on 06.10.2015, the Civil Judge ought to have held that the suit was filed within the limitation.
5.6 It is submitted that the Civil Judge has erroneously concluded that the date of registration deed is to be considered as date of deemed knowledge and that is the date which is considered as the date of refusal on Page 9 of 33 HC-NIC Page 9 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT the part of the defendants to perform their part of contract to start period of limitation. Referring to Section 3 of interpretation clause of the Transfer of Property Act, it is submitted that agreement to sale cannot be termed as a transaction and therefore, Section 3 of the Transfer of Property Act would apply only to a "transaction". This contention is erroneously concluded without appreciating the same in true perspective and hence, error is committed when the transaction with defendant No.5 dated 29.08.2011 was treated to be the date on which knowledge of the plaintiff regarding refusal to part perform the contract as per the agreement to sale is considered by the Civil Judge. 5.7 It is also contended that the learned Civil Judge has erroneously considered the ratio laid down in the case of Dilbu in interpreting the date of deemed knowledge and has erroneously held that when transaction of 29.08.2011 was within the knowledge of the appellant - plaintiff, then that date ought to have considered as the date of knowledge of refusal to perform the part of their contract by the defendants, the limitation therefore would start running from 29.08.2011 and hence the filing of the suit in the year 2015 would be beyond the period of limitation prescribed.
5.8 Learned Senior Advocate for the appellant Page 10 of 33 HC-NIC Page 10 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT relied upon following judgments in support of his argument regarding application of O-2, R-2 of the Civil Procedure Code:-
I. In the case of Rathnavathi & Anr. Vs. Kavita Ganashamdas, reported in (2015) 5 SCC, 223. It is submitted that similarity of ingredients for claiming reliefs in the two suits is relevant over and above the cause of action, reliefs claimed and legal provisions applicable for grant of relief with factual matrix of both the suits. Mere similarity in pleadings in the two suits is not relevant for avoiding bar of O-2, R-2.
II. In the case of Panchanan Dhara & Ors. Vs. Monmatha Nath Maity (Dead) through LRs. & Anr., reported in (2006) 5 SCC, 340, on the point of limitation prescribed under Article 54 of the Limitation Act. It is contended that plea of limitation is a mixed question of law and fact especially applicability of first part of the second part of Article 54 of the Limitation Act as the same would depend upon not only the nature of the agreement but also on the Page 11 of 33 HC-NIC Page 11 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT conduct of the parties and also as to how the terms and conditions have been understood by the parties to the agreement and hence, such an issue cannot be decided at the thrash hold to non-suit the plaintiff.
III. In the case of S.Brahmanand & Ors. Vs. K.R.Muthugopal (D) & Ors., reported in AIR 2006 SC, 40, to submit that expression "date fixed for performance" is a crystallized notion and the time from which period begins to run contemplated in part-2 in Article 54 refers to the cases where no such date is fixed. Therefore, for second part of Article 54 also, stress is on, when the plaintiff has noticed that the performance is refused, which also requires ascertaining of definite point of time, which requires evidence to be led.
6. As against this, learned Senior Advocate Mr.P.C.Kavina for respondent Nos.6 and 7 contented that the registration of Banakhat in the year 2010 is rightly to be considered and is considered as a notice to the plaintiff about the refusal of performance as contemplated under Article-54, and therefore, period of Page 12 of 33 HC-NIC Page 12 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT limitation was rightly considered to start running from that date and for that reason also, the Suit was beyond the period of limitation. It is submitted that, when the plaintiff's claim of 03.11.2010 some transaction took place with the defendant no.5 in connection with the suit land and till 29.08.2011 when the cancellation of sale deed executed in favour of one Girishbhai took place, at least, between these two dates, the plaintiff had the knowledge that the original owner (defendant nos. 1 to 4) have acted against the promises made by them in the document executed in the year 2009, and therefore, knowledge of refusal to perform between the aforementioned two days would take the filing of the suit beyond the prescribed limitation.
7. It is submitted that, on the happening of the aforesaid events, i.e. to say execution of the registered Banakhat with the parties other than the plaintiff, corresponding cancellation deed of the earlier registered sale deed would render the condition of the Banakhat in favour of the plaintiff pertaining to conversion of the tenure of the land by an order from the Collector insignificant and it is feeble attempt of the plaintiff to base their cause of action of the happening of the event i.e. the conversion of the tenure of the land.
8. It is submitted that, the issue of possession Page 13 of 33 HC-NIC Page 13 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT as claimed by the plaintiff is not supported by any pleadings, no pleadings are found on record as to how the plaintiff came in possession, the date on which, he gave the possession and his connection with the construction which is existing on a particular survey number which vaguely the plaintiff's contended put on the survey number, for which the transaction has taken place in his favour.
9. In so far as, Order-2 Rule-2 of CPC is concerned, the submission is made on behalf of defendants that, having failed to receive any permission from the court, where previous suit in connection with the same cause of action was filed, the Civil Court would be precluded from entertaining the subsequent suit. He submits that, on the basis of Section-10 of CPC that, the prayer and relief which was available to the plaintiff at the time of filing of first Suit, if not made, should necessarily be considered have to be relinquished for which no 2nd Suit can be permitted. Even if the sale deed or "Banakhat" is entered, still, plaintiff will not have cause of action as the restricted tenure of the land was not changed even when subsequent documents were executed. 9.1 Learned Senior Advocate for the respondents relied upon the judgment of the Apex Court in the matter of Fatehji & Company Vs. L.M.Nagpal, reported in 2015 AIR Page 14 of 33 HC-NIC Page 14 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT SCW, 3401 and submitted that on the facts of the case before the Apex Court, which appeared to be similar to the facts of the present case, the Apex Court has held the suit to be barred by limitation under Article 54 of the Limitation Act.
9.2 To the contention regarding applicability of O- 2, R-2 of the Civil Procedure Code, learned Senior Advocate Mr.Kavina relied upon judgment of the Apex Court in the case of Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions Pvt. Ltd., reported in 2013 (1) SCC 625 and in the case of State Bank of India vs. Gracure Pharmaceuticals Limited, reported in (2014) 3 SCC, 595.
10. Heard rival submissions of the parties.
11. From the facts on record, following chronology appears insofar as transaction of the suit land is concerned:-
I. The sale deed by defendant Nos.1 and 2 in favour of the plaintiff with confirmation of defendant No.4 is dated 25.08.2009 along with declaration-cum-indemnity bond and supplementary-cum-possession agreement of the even date.
II. Prior to this "Banakhat", there existed a
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sale deed of 30.12.2005, registered on
13.01.2006 by defendant No.1 to 4 in
favour of one Girish Patel and Keshav
Somdas. The procedure for cancellation of
the deed of 2005 was undertaken and by
cancellation deed dated 29.08.2011, sale
deed of 30.12.2005, registered on
13.01.2006 was cancelled. This was on
account of the order of the Mamlatdar & ALT dated 21.09.2009 in Tenancy Case No.17 of 2007, which cancelled the sale deed dated 30.12.2005, registered on 13.01.2006 in connection with the suit land as the same was in contravention with Section 43 of the Tenancy Act considering the suit land being of restricted tenure.
III. At the time of cancellation of deed, it appears that the amount was paid to said Girish Patel and others by cheque drawn by the plaintiff in favour of said Girish Patel.
IV. Another agreement to sale is executed by
defendant No.1, 2 and 3 in favour of
defendant No.5 dated 03.11.2010 and the
Power of Attorney of the even date in
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favour of defendant No.5.
V. Thereafter, on 19.05.2015, order of the
Collector converting the suit land from
new tenure to old tenure is passed.
VI. Thereafter, sale deed dated 08.06.2015 is
executed by defendant Nos.1 to 4 in favour of defendant Nos.6 and 7. This sale deed is executed by defendant Nos.1 to 4 themselves and not through Power of Attorney (defendant No.5). The first suit, i.e. Regular Civil Suit No.589 of 2015 came to be filed first in point of time, where the cause of action and the prayer clause are as under:-
Cause of action:
"Though the occupancy and actual
possession of the property has been
handed over to the plaintiff on the basis of earnest money deed dated 25/08/2009 executed in his favour as well as the write ups like declaration cum indemnity bond, supplementary cum possession agreement and general power of attorney executed in that regard in his favour, the plaintiff came to know on 20/09/2015 about the act of the respondents No. 1 to 4 against his procedure to get the titles of the property as marketable and clear and Page 17 of 33 HC-NIC Page 17 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT in connection with the same, they carried out the procedure of cancelling the sale deed dated 29/08/2011 and carried out the procedure of executing the sale deed in favour of the respondents No. 6 and 7 on 08/06/2015, thereby, their intention was to usurp plaintiff's actual possession unlawfully and therefore, the cause has arisen for the plaintiff to file the present suit before the Hon'ble Court. (13) Thus, it is prayed that :-
(A) Be pleased to pass decree in the form of declaration that since the agricultural land / property, as described in para-1 of suit application, located in mauje village Jagatpur, in registration district sub-
district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., has been under direct possession of the Plaintiff, that the sale deed executed, in collusion with each other, by the Respondents nos.1 to 4 and the Respondents nos. 6 and 7, and registered vide sr.no.1185 on 08/06/2015 is illegal, null and void and not tenable.
(B) Be pleased to grant relief directing to
execute the decree in the form of
declaration in favour of Plaintiff in the case of agricultural land / property Page 18 of 33 HC-NIC Page 18 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT located in mauje village Jagatpur, in registration district sub-district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., since the act of the Respondents nos.1 to 4 and the Respondents nos. 6 and 7, in collusion with each other, to execute the sale deed in favour of the Respondents nos. 5 and 6 and get the same registered vide sr.no.1185 on 08/06/2015 is illegal, therefore the Respondents nos.1 to 4 and the Respondents nos.6 and 7 be restrained to act unlawfully to snatch away the said property without due procedure from direct possession - occupancy of the Plaintiff, and despite the Respondents nos.6 and 7 do not have any right by virtue of their ownership through the sale deed executed in their favour, they, their relative and agents may be restrained to act in any manner to sell the said property.
(C) Be pleased to pass decree in the form of permanent injunction in the case of the land located in mauje village Jagatpur, in registration district sub-district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., which has been under ownership right of the Plaintiff, by Page 19 of 33 HC-NIC Page 19 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT virtue of the part performance of the Agreement executed by the Respondents nos.1 to 4 since 25/08/2009, therefore, the Respondents and their agents, employees, relatives, be restrained from entering the said property jointly or individually and further restrain them from using or creating any obstacle in the said property.
(D) Be pleased to pass the order as to costs from the Respondents of this case.
(E) Be pleased to grant any other relief as deemed fit and proper in the interest of justice."
Whereas Special Civil Suit No.495 of 2015 came to be filed subsequently where the cause of action and the prayer clause read as under:-
"(11) Cause of the Suit:-
Though the plaintiff has occupancy and
actual possession of property as an owner in accordance with earnest money deed dated 25/08/2009 executed in his favour as well as the declaration cum indemnity bond, supplementary cum possession agreement and general power of attorney executed in writing in that regard and though the plaintiff has paid the consideration amount to the respondent No- 5 for cancellation of the write up Page 20 of 33 HC-NIC Page 20 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT executed in favour of the respondent No-5 by the respondents No- 1 to 4 in connection with the property in question, the plaintiff has received information that the respondent No-5 has uselessly spent time under the pretext of cancelling the write up executed in his favour and the cause also arose, when the plaintiff received information that the respondents No. 1 to 4 and respondents No. 6 and 7, in collusion, have carried out the procedure with respect to the sale deed dated 13/07/2015 with an intention not to implement earnest money deed executed in favour of the plaintiff. Therefore, the cause has arisen for the plaintiff to file this suit in the jurisdiction of this Court for specific implementation of agreement and permanent relief in connection with the property in question. (15) Thus, it is prayed that:-
(A) Be pleased to grant relief that, in connection with the agricultural land located in mauje village Jagatpur, in registration district sub-district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., by passing the order and decree, direct the Respondents nos.1 to 4 that in pursuance of the Earnest Money Deed dated 25/08/2009 Page 21 of 33 HC-NIC Page 21 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT executed in favour of the Plaintiff, the Respondents nos.1 to 4 may jointly execute the Sale Deed in favour of the Plaintiff, by accepting rest of the consideration amount from the Plaintiff, get the said sale deed registered in the office of the Sub Registrar, and / or the Respondents nos.5 and 6 and 7 and / or the Respondents nos.6 and 7 may join as the consenting party regarding execution of the said sale deed in favour of the Plaintiff.
Alternatively, if the Respondents nos.1 to 4 and the Respondents nos.5 and 6 and 7 and / or the Respondents nos.6 and 7 deny complying with the decree executed, be pleased to pass the order and execute the decree appointing the Court Commissioner, who may comply with the order of the Court to complete the procedure of accepting rest of the consideration amount, get the sale deed registered in the office of the Sub Registrar, after executing in favour of the Plaintiff, and hand over direct possession - occupancy of the property to the Plaintiff.
(B) Be pleased to pass decree in the form of permanent stay order in connection with agricultural land located in mauje village Jagatpur, in registration district sub-
district Ahmedabad, taluka Daskroi,
bearing Block No.104 admeasuring 5336
sqmt, upon being included in the T.P.
Scheme No.65 and thereby allotted the
Final Plot No.208 admeasuring 3217 sq.mt., Page 22 of 33 HC-NIC Page 22 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT against the Respondents nos.1 to 4 and the Respondent no.5 and 6 and 7 restraining them not to carry out any procedure of executing sale deed against sale of said property, Earnest Money Deed, Development Agreement, Write up in the form of Possession Receipt and any act to assign or transfer the said property, further restrain them not to make modification in site condition of the suit property, get any procedure done in connection with its direct possession - occupancy.
(C) Be pleased to pass the order as to costs from the Respondents of this case.
(D) Be pleased to grant any other relief as deemed fit and proper in the interest of justice."
12. O-2, R-2 of the Civil Procedure Code bars second suit without the leave of the Court for the reliefs which the plaintiff is entitled to make in respect of the cause of action and that the suit shall include whole of the claim which the plaintiff is entitled to make in respect of cause of action. Sub-rule (3) of R-2 refers to entitlement of a person to claim more than one relief in respect of the same cause of action to sue for all or any of such reliefs, but the reliefs which are omitted then to sue for such reliefs, leave of the Court is mandatory. In the instant case, what appears from the relevant paras of the pleadings and Page 23 of 33 HC-NIC Page 23 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT the prayers, is that the subject matter of the suit is the same, i.e. the land in question is the same. However, cause of action is different as well as relief claimed is also different.
13. The Apex Court in the case of Rathnavathi (supra) has held that the basic requirement for invoking plea of O-2, R-2, burden is primarily on the defendant to show that the second suit was also in respect of the same cause of action, as on which the previous suit was based. It is held that when the cause of action to claim reliefs was different and so also ingredients for claiming reliefs, plea of O-2, R-2 cannot be allowed to be raised by the defendants. The Apex Court has also held that pleadings of two suits, even if identical, would not be relevant for the purpose of attracting O-2, R-2 and it is the cause of action which is material to determine applicability of O-2, R-2. In the instant case, in the first suit, the prayer is for permanent injunction as the plaintiffs apprehended damage to their continuing and peaceful possession, so the cause of action, whereas the second suit is for specific performance of contract and the cause of action is non-performance of the part on behalf of the defendants necessitating filing of the second suit.
14. In the case of Virgo Industries (Eng.) P. Ltd. Page 24 of 33 HC-NIC Page 24 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT (supra) referred to by learned Advocate for the defendants, the Apex Court was considering provisions of O-2 in the context of the facts where successive Civil Suits were filed with clear averments to the effect that after execution of the agreement to sale dated 27.07.2015, the plaintiff received letter dated 01.08.2015 from the defendant conveying information that Central Excise Department was contemplating issuance of notice restraining alienation of the property. The advance amount which was paid by the plaintiff to the defendant was also returned by cheque and therefore, such pleadings led the Court to conclude on facts that upon refund by the defendant of the agreed amount, the intention of the defendant not to honour the agreement dated 27.07.2005 was evident. The emphasis therefore was on the word "cause of action", which the Apex Court, relying upon the previous judgment accepted the meaning of the expression "cause of action" to be as under:-
"Cause of Action" has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular action the part of the Page 25 of 33 HC-NIC Page 25 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
14.1 Therefore, even applying the meaning given to the phrase "cause of action", in the instant case, though the subject matter of the suit may be the same, but the cause of action to pray for the reliefs as prayed for in the two separate suits in the facts of this case are different.
15. Similarly, in the case of Gracure Pharmaceuticals Limited (supra), the Apex Court examining applicability of O-2, R-2 after noting the facts, where the original suit No.1145 of 2003 was filed by the respondent company on 15.05.2003 for recovery of an amount of Rs.44,30,994/- against the appellant Bank and its officers towards the amount of letter of credit issued by CDN Paris and towards interest of delay in receipt of payment from BNP Paribas with the cost of litigation and future interest whereas Suit No.288 / 2003/2004 of 2004 was also filed by the respondent company on 21.05.2003 claiming damage of Rs.3,09,000/- with interest and cost of litigation and future interest at 18% against the Bank and its officer for withdrawal credit facility on 23.03.2002. The Apex Court in para-17 held that the facts, on the basis of which the suit was Page 26 of 33 HC-NIC Page 26 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT filed, existed on the date on which the earlier suit was filed and there was no fresh cause of action arose in the period between the two suits. Therefore, when the first suit was for recovery of dues, the damages sought for in the subsequent suit could also be prayed for as O-2, R-2 requires including the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Here also, the emphasis of the Apex Court was on "cause of action".
16. Hence, error is committed by the Civil Judge in concluding that the second suit, i.e. Special Civil Suit No.495 of 2015 is hit by O-2, R-2 and consequently, by O- 7, R-11 as leave as contemplated under sub-rule (3) of R- 3 is not sought or granted by the Court to file subsequent suit, i.e. Special Civil Suit No.495 of 2015.
17. Insofar as contention relating to limitation to file the suit for specific performance of contract is concerned, the relevant date is considered by the Civil Court is agreement to sale dated 03.11.2010 with defendant No.5 and the payment made by the plaintiff on 29.08.2011 to be the date of knowledge of refusal to perform part of the contract on behalf of defendant Nos.1, 2 and 3. For this purpose, it may be relevant to refer to the recitals in the agreement to sale dated 25.08.2009 by defendant Nos.1, 2 and 3 in favour of the Page 27 of 33 HC-NIC Page 27 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT plaintiff wherein clause-1 of the conditions specifies that the tenure of the agreement would be for a period of three months from conversion to new tenure land to old tenure land. Clause-3 provides that the burden of conversion from new tenure to old tenure was that of defendant Nos.1, 2 and 3. Clause-6 also provides for executing sale deed of all the lands and fragments of the lands by executing a registered deed and accepting consideration after conversion from new tenure to old tenure and such deed to be executed in favour of the plaintiff or representative of the plaintiff. Clause-9 provides that the defendants would not encumber the suit land in any other manner and Clause-11 provides for proceeding against the party committing breach of the conditions for the purpose of specific performance of contract.
18. The fact of order of the Collector for converting the land from agricultural to non-agricultural dated 19.05.2015 becomes relevant especially when in previous sale of 2005, sale deed was ordered to be cancelled by the proceeding under the Tenancy Act under order dated 21.02.2009. The plaintiff was within his right to wait for conversion of the land, else no cause of action had arisen till such date. Any action on the part of the defendants to dispose of the land by Page 28 of 33 HC-NIC Page 28 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT executing any document when there is no order of conversion of non-agricultural is of no consequence. Certainly, action on the part of the plaintiff to clear the impediments arising out of the pre-existing sale deed cannot be considered as a relevant date of knowledge of refusal by defendant Nos.1, 2 and 3 to perform their part to trigger off period of limitation. The subsequent sale deed of 2015 executed by defendant Nos.1 to 4 in favour of defendant Nos.6 and 7 after the order of conversion, the tenure of the land can be deemed to be the date of knowledge on the part of the plaintiff about refusal by defendant Nos.1, 2 and 3 to perform their part of contract.
19. The judgment in the case of Fatehji & Company (supra), referred to by the defendants would not support their case as the Apex Court in this judgment in para-60 has observed that the specific performance claimed on a written agreement to sale dated 02.07.1973 and as per the terms of performance of contract was fixed till 02.12.1973, but defendants by subsequent letters dated 07.04.1975, 01.10.1975 and 01.08.1976 sought for extension of time and lastly, such extension had expired on 01.02.1977 and the suit for specific performance was filed on 29.04.1994, which the Apex Court, on facts, held to be much beyond the period of three years prescribed Page 29 of 33 HC-NIC Page 29 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT and therefore, in view of the concurrent findings of two Courts below regarding possession delivered in part performance of the agreement or otherwise would not be of any consequence where the date on which cause of action has arisen is to be determined.
20. In view of the aforesaid, even on the count of limitation, the suit by the plaintiff cannot be held to be barred by limitation so as to non-suit the plaintiff under O-7, R-11 of the Civil Procedure Code.
21. As is held in the case of S.Brahmanand (supra) In the instant case also, even if contention of the defendant regarding knowledge of refusal is to be accepted, but the same is required to be established by leading cogent evidence and cannot be presumed to non- suit the plaintiff.
22. From the facts of this case, a very peculiar situation exists. The Civil Court could not have dismissed the Civil Suit under O-7, R-11 by resorting both to O-2, R-2, CPC and Article 54 of the Limitation Act. For applying bar of O-2, R-2, CPC, the cause of action arose on 08.06.2015 when subsequent sale deed is executed for applying bar under the Limitation Act, the cause of action deemed to have occurred on 29.08.2011 (as recorded in the impugned judgment) when plaintiff gave Page 30 of 33 HC-NIC Page 30 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT Rs.10 lakhs by cheque to defendant No.5 for cancelling the registered sale deed dated 03.11.2010 in favour of defendant No.5. The Court therefore has committed an error by accepting two separate causes of action, yet applying bar of O-2, R-2 on one hand and on the other hand, accepting the cause of action to arise on 08.06.2015 and yet invoking O-7, R-11 on the ground of limitation.
23. The Court below has also fallen in error to hold that the suit is hit by O-7, R-11, yet proceeded to frame issues for dealing with application Exh.5 under O- 39, CPC and give findings of facts on the issue of balance of convenience, irreparable loss and prima facie case. This, in opinion of this Court, was unwarranted.
24. In view of the aforesaid, impugned order dated 19.11.2015 passed by the Civil Judge (SD), Ahmedabad Rural below application Exh.13 in Special Civil Suit No.495 of 2015 is hereby quashed and set aside. The First Appeal is hereby allowed.
25. Order dated 19.11.2015 passed by the Civil Judge (SD), Ahmedabad Rural below application Exh.5 in Special Civil Suit No.495 of 2015 is also quashed and set aside. It is directed that application Exh.5 be heard a fresh on its merits and without being influenced by any Page 31 of 33 HC-NIC Page 31 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT of the observations made in this judgment and order. The application Exh.5 be decided preferably within 8 months from today. The Appeal from Order is also allowed.
26. Civil Applications do not survive in view of the order passed in the First Appeal and the Appeal from Order. Disposed of accordingly.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) At this stage, learned Senior Advocate Mr.P.C.Kavina appearing for the defendants prayed for stay of this order for a period of four weeks, to which learned Senior Advocate Mr.Naik for the appellant objected.
Considering the facts and circumstances of the case, we are not inclined to grant prayer made by learned Senior Advocate Mr.Kavnia.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SHITOLE Page 32 of 33 HC-NIC Page 32 of 33 Created On Tue Aug 22 03:19:23 IST 2017 C/FA/2477/2015 CAV JUDGMENT Page 33 of 33 HC-NIC Page 33 of 33 Created On Tue Aug 22 03:19:23 IST 2017