Bombay High Court
Kishor Nandlal Shah vs Ketan Kantilal Thakkar on 16 September, 2009
Author: P.B. Majmudar
Bench: P.B. Majmudar, R.V. More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2153 OF 2008
with
CIVIL APPLICATION NOS. 5173 OF 2008 & 5896 OF 2008
M/s. Vimal Builders, )
A duly registered Partnership firm having registered )
office at Muchhala Polytechnic, 5th floor, Anand Nagar, )
Sai Vihar Complex, Ghodbunder Road, Kasar Vadavli, )
Thane (West)-400 601, through its Partner )
Kishor Nandlal Shah )
Aged : Adult, Occ. Business )..Appellant
Versus
1. Ketan Kantilal Thakkar, age 47 years, )
Occupation Business )
2. Kantilal Vallabhdas Thakkar, )
age 73 years, occupation business, )
Both having address at 204, Ashoka Shopping Centre, )
2nd floor, L.T. Road, Mumbai-400 001 )
3. Dhondu Rama Bhoir )
4. Ms. Gangubhai Rama Bhoir )
5. Ms. Dharmibai Dhondu Bhoir )
6. Vijay Dhondu Bhoir )
7. Santosh Dhondu Bhoir )
8. Nandu Dhondu Bhoir )
9. Ms. Kavita Dhondu Bhoir )
10. Ms. Savita Dhondu Bhoir )
11. Ms. Gangubai Kundlik Gaikar )
12. Gurunath Kundlik Gaikar )
13. JairamDahi Gaikar )
14. Gulam Sitaram Gaikar )
15. Dattu Maruti Gaikar )
16. Hasha Pandu Tamboli )
17. Ms.Fasabai Mahadu Tamboli )
18. Ms. Leela Mahadu Tamboli )
19. Ms. Bani Mahadu Tamboli )
20. Ms.Drupada Mahadu Tamboli )
21. Bandu Ramaji Tamboli )
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22. Ms. Susha Ramaji Tamboli )
23. Ms. Usha Ramaji Tamboli )
24. Kamlabai Budha Mane )
25. Pandit Nago Mane )
26. Dilip Nago Mane )
27. Ms. Saguna Nago Mane )
28. Pappu Ankush Tamboli )
29. Vinayak Ankush Tamboli )
30. Ms. Manisha Ankush Tamboli )
31. Ms. Nirmala Ankush Tamboli )
32. Sunil Ramchandra Tamboli )
33. Ms. Sunita Ramchandra Tamboli )
34. Ms. Taibai Ramchandra Tamboli )
35. Ms.Shewantabai Kacharu Gaikar )
36. Ramdas Kachru Gaikar )
37. Shivdas Kachru Gaikar
38. Shanidas Kachru Gaikar
39. Hanuman Kachru Gaikar
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)
)
40. Indradas Kachru Gaikar )
41. Dashrath Janu Gaikar )
42. Lahu Janu Gaikar )
43. Ankush Janu Gaikar )
44. Sadashiv Janu Gaikar )
45. Ms. Gangubai Motiram Bhoir )
46. Ms.Vithabai Bhagwan Bhoir )
47. Ms. Draupadibai Jayawant Patil )
48. Eknath Jairam Gaikar )
49. Harishchandra Jairam Gaikar )
50. Balaram Jairam Gaikar )
51. Ms.Sangubai Gopal Patil )
52. Ms. Sukrabai Gajanan Chaudhari )
53. Ms. Kalubai Krishna Bhoir )
54. Ms.Fasubai Pandurang Bhoir )
55. Ms. Meenabai Madan Pawashe )
56. Ms. Taibai Jairam Gaikar )
57. Ms. Bheemabai Janu Sarnobat )
58. Ms. Manubai Natha Shelar )
59. Ms. Padmabai Shivaji More )
60. Ms. Kavitabai Kisan Pise )
61. Jamdev Janu Sarnobat )
62. Ram Janu Sarnobat )
63. Shyam Janu Sarnobat )
64. Ms. Taibai Kundlik Dabhe )
65. Ms. Kalubai Bandu Thakre )
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66. Ms. Pada Shamji Bhoir )
67. Ms. Gunjabai Kundlik Patil )
68. Eknath Dinkar Gaikar )
69. Baban Dinkar Gaikar )
70. Tulsiram Dinkar Gaikar )
71. Ms.Girjabai Pandurang Bhoir )
72. Ms. Meerabai Pundlik Lagde )
73. Ms.Anubai Jairam Jadhav )
74. Ms.Gulab Karun Mhatre )
75. Ms. Ranjana Ravindra Patil )
76. Ms. Changubai Dinkar Gaikar )
77. Shivdas Kachru Gaikar )
78. Laxman Shankar Patil )
79. Ganpat Baburao Patil )
80. Balaram Bama Gaikar )
81. Jaykant Baliram Patil
82. Pandit Tukaram Gaikar
83. Shreeram Vithu Patil
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)
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84. Yashodabai Raghunath Patil )
85. Mohan Vithu Patil )
86. Lahu Vithu patil )
87. Ms, Gaurubai Vithu Patil )
88. Ms. Gunabai Vithu Patil )
89. Shashikant Vithu Patil )
90. Suryakant Vithu Patil )
91. Ms. Tarabai Vithu Patil )
92. Ms.Savitri Janu Patil )
93. Vishanu Balu Kene )
94. Ramji Balu Kene )
95. Gulam Balu Kene )
96. Ms. Manibai Gopinath Kene )
97. Ms. Sundarabai Balu Kene )
98. Kalubai Raghunath Kene )
99. Bandu Raghunath Kene )
100. Santosh Raghunath Kene )
101. Ms. Somibai Raghunath Kene )
102. Ms. Barkibai Raghunath Kene )
103. Tukaram Budhya Patil )
104. Namdev Kusha Gaikar )
105. Baliram Ragho Patil )
106. Abhimanyu Dharma Patil )
107. Golvind Dharma Patil )
108. Chandrakant Dharma Patil )
109. Ms. Laxmi Eknath Joshi )
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110. Ms.Draupadibai Dharma Patil )
111. Arjun Janu Gaikar )
112. Ms. Girjabai Ganpat Patil )
113. Shankar Ganpat Patil )
114. Krishna Shankar Patil )
115. Wasudev Shankar Patil )
116. Ms.Tulsabai Shankar Patil )
117. Ankush Ganpat Patil )
118. Ms.Sakubai Raghunath Patil )
119. Sukhdeo Rajaram Patil )
120. Ms.Draupadabai Rajaram Patil )
121. Ms. Latabai Ramesh Chaudhary )
122. Ms. Kalpana Shivdas Patil )
123. Tulsiram Dattu Patil )
124. Aatmaram Dattu Patil )
125. Bhaskar Dattu Patil
126. Sharad Dattu Patil
127. Ms. Mahalubai Dattu Patil
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)
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128. Yesubai Sadashi Chaudhary )
129. Manjulabai Laxman Shinde )
130. Shardabai Dattu Patil )
131. Ms.Radhabai Dattu Patil )
132. Ms. Laxmibai Dattu Patil )
133. Ms. Muktabai Dattu Patil )
134. Kusha Narayan Gaikar )
135. Tukaram Narayan Gaikar )
136. Baliram Narayan Gaikar )
137. Gangaram Narayan Gaikar )
138. Ms.Shakuntala Kusha Gaikar )
139. Ms.Sitabai Motiram Bhane )
140. Ms. Anusaya Pandurang Bhagat )
141. Ms. Sewantabai Namdev Bhoir )
142. Parshuram Nandev Bhoir )
143. Dashrath Namdev Bhoir )
144. Tulsiram Namdev Bhoir )
145. Dinakar Namdev Bhoir )
146. Vilas Namdev Bhoir )
147. Ms.Chandabai Madhukar Gaikwad )
148. Ms. Laxmibai Subhash Madhavi )
149. Ms.Shantabai Baban Patil )
150. Ms. Vasanti Sharad Patil )
151. Surjit Dashrath Bhoir )
152. Nikhil Parshuram Bhoir )
153. Baliram Pandu Patil )
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154. Ms.Anusaya Sakaram Patil )
155. Damu Pandu Patil )
156. Krishna Pandu Patil )
157. Nagubai Pandu Patil )
158. Shyam Gajanan Patil )
159. Ram Gajanan Patil )
160. Ms. Lata Ananta Gaikar )
161. Ms.Shakuntala Kusha Patil )
162. Ms. Anandibai Gajanan Patil )
163. Ms. Bhimabai Gajanan Patil )
164. Ms.Rajubai Kusha Mane )
165. Ms. Parvatibai Anant Patil )
166. Ms. Gangubai Gavan )
167. Ms. Tarabai Motiram Vage )
168. Ms. Indubai Arjun Gaikar )
169. Kashinath Sitaram Gaikar
170. Gulam Sitaram Gaikar
171. Ramdas Sitaram Gaikar
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)
)
172. Janardan Sitaram Gaikar )
173. Sadashiv Sitaram Gaikar )
174. Mukund Sitaram Gaikar )
175. Ms. Leelabai Ratan Gaikar )
176. Ashok Balaram Mhatre )
177. M. Muktabai Balaram Mhatre )
Alias Muktabai Navnath Thakur )
178. Ms.Vandanabai Balaram Mhatre )
179. Madan Baliram Gaikar )
180. Pandit Motiram Mhatre )
181. Sanjay Mtiram Mhatre )
182. Sunil Motiram Mhatre )
183. Ms.Chandrabai Dinkar Bhopi )
184. Ms. Indra Premnath Thakur )
185. Ms. Radhabai Vishnu Bhane )
186. Ms. Sita Motiram Mhatre )
187. Ms.Vithabai Motiram Mhatre )
188. Nitin Vasant Mhatre )
189. Ms. Neeta Vasant Mhatre )
190. Ms. Janabai Vasant Mhatre )
191. Bandu Likrya Tamboli )
192. Dashrath Janu Gaikar )
193. Lahu Janu Gaikar )
194. Ankush Janu Gaikar )
195. Sadashiv Janu Gaikar )
196. Ms.Gangubai Motiram Bhoir )
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197. Ms. Leelabai Bhagwan Bhoir )
198. Ms.Draupadabai Jaywant Patil )
199. Vishanu Balu Kene )
200. Ramji Balu Kene )
201. Gulam Balu Kene )
202. Kalubai Raghunath Kene )
203. Bandu Raghunath Kene )
204. Santosh Raghunath Kene )
205. Ms. Sonibai Raghunath Kene )
206. Ms. Barkibai Raghunath Kene )
207. Lalchand Padu Kene )
208. Ms. Kamalabai Ranchod Patil )
209. Ms. Neerabai Vishanu Patil )
210. Ms. Sampadabai Madhukar Mhatre )
211. Ms. Aanandibai Padu Kene )
212. Subhash Padi Kene
213. Ms.Rekha Padi Kene
214. Vishnu Rajaram Patil
ig )
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)
215. Nandu Ashok Patil )
216. Sanjay Ashok Patil )
217. Jitendra Ashok Patil )
218. Ms. Pournima Ashok Patil )
219. Ms. Fashibai Ashok Patil )
All adult, Occ. Agriculturists )
(The summons of Defendant Nos. 3 to 219 may be )
served on Defendant No. 1 and 2 as their Power of )
Attorney Holders) )
220. M/s. Regency Nirman Pvt. Ltd. )
a Company duly incorporated under the )
Companies Act, 1956, having office at : )
111/112, Anil Complex, )
Near Regency Hall, New Link Road, )
Ulhasnagar-421 003 )
through its Directors, )
Shri Mahesh Satyanarayan Khairari )
Aged, Adult. Occ. Business )...Respondents
WITH
WRIT PETITION NO. 641 OF 2009
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M/s. Vimal Builders, )
A duly registered Partnership firm having registered )
office at Everest Square, 6th Floor, )
Junction of Shraddhanand Road and )
Nehru Road, Vile Parle (E), Mumbai-400 057 )
and now having office at Muchhalla Polytechnic, )
Anand Nagar, Sai Vihar Complex, Ghodbunder Road, )
Kasar Vadavli, Thane (West)-400 601. )..Petitioner
versus
1. Ketan Kantilal Thakkar )
aged 45 years, Occ. Business )
2. Kantilal Vallabhdas Thakkar, )
Age 71 years, Occ. Business, both having address
at 204, Ashoka Shopping Centre, 2nd floor, L.T.Road,
Mumbai-400 001
)
)
)
3. Regency Nirman Pvt. Ltd. )
a Company duly incorporated under the Companies )
Act, 1956, having its office at 111/112, Anil Complex, )
Near Regency Hall, New Link Road, )
Ulhasnagar-421 003. )...Respondents
Mr. D.D. Madon, Senior Advocate, with Ms. Harsha Rele, Mrs. Tapasya Mhatre
and Mr. Iqbal Ashan, instructed by Smt. Shanta Rao for the Appellant in First
Appeal and for the petitioner in Writ Petition.
None for respondent Nos.1 to 219 in First Appeal.
Mr. S.U. Kamdar, Senior Advocate, with Mr. Devrat Singh and Mr. Brijesh
Upadhyay, instructed by M/s. Purnand & Company, for respondent No. 220 in
First Appeal and for respondent No.3 in writ petition.
None for respondent Nos.1 & 2 in writ petition.
CORAM: P.B. MAJMUDAR &
R.V. MORE, JJ.
Judgment reserved on : 29
August, 2009
th
Judgment pronounced on: 16
September,2009
th
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JUDGMENT:(Per P.B. Majmudar, J.) Since it is agreed between the learned counsel appearing for the parties, both these matters are disposed of finally at the admission stage itself.
In view thereof, the Appeal is admitted. Rule is issued in Writ Petition No. 641 of 2009. Learned counsel for respondent No.220 in First Appeal and for respondent No.3 in writ petition waives service.
2. Since the issue involved in the First Appeal and in the writ petition being common, with the consent of the learned counsel appearing for the parties, both these matters are taken up for hearing together and are being disposed of by this common judgment.
3. Facts in First Appeal may be noticed. The First Appeal is directed against the judgment and order dated 3rd October, 2008, passed by the 2nd Joint Civil Judge, Senior Division, Kalyan, by which the learned trial Judge has held that the suit of the plaintiff i.e. Special Civil Suit No. 292 of 2008 is not maintainable as per Order II Rule 2 (3) of the Civil Procedure Code, 1980 (hereinafter "the Code") and accordingly the plaint is rejected under Order 7 Rule 11 of the Code which order is impugned at the instance of the original plaintiff. The aforesaid suit was filed by the appellant for specific performance of an agreement dated 16th September, 2006, declaration and injunction etc. ::: Downloaded on - 09/06/2013 15:04:54 ::: -9-
4. It is the case of the plaintiff that defendant Nos. 1 and 2 executed an agreement for sale in favour of the plaintiff on 16th September, 2005, in connection with various pieces of lands situate at Villages Davadi and Golivli of Tal. Kalyan, District Thane, totally admeasuring 1,39,980 sq.yards plus about 5,00,000 to 7,00,000c sq.yds. for a total agreed consideration of Rs.
13,73,20,380/-, out of which an amount of Rs. 2,19,96,316/- was to be paid to the original land owners i.e. defendant Nos. 3 to 219 herein and Rs.
11,53,24,064/- was to be paid to defendant Nos. 1 and 2. It is the case of the plaintiff that the plaintiff paid a sum of Rs. 50 lacs towards earnest amount.
Defendant Nos. 1 and 2 also simultaneously executed a general power of attorney in favour of the partners of the plaintiff firm on 16th September, 2005.
4. It is the case of the plaintiff that he paid from time to time an amount of Rs. 60 lacs to defendant Nos. 1 and 2 by various cheques. It was agreed between the plaintiff and defendant Nos. 1 and 2 to execute supplementary agreement and such agreement should be signed before encashing the last cheque dated 17th March, 2006 which was given by the plaintiff to defendant Nos. 1 and 2. It is the case of the plaintiff that even though a sum of Rs. 1.10 crores have been paid by the plaintiff, neither the accounts were given by defendant Nos. 1 and 2 nor they came forward to sign the supplementary agreement which was already prepared and engrossed on ::: Downloaded on - 09/06/2013 15:04:54 ::: -10- 21st March, 2006. It is further the case of the plaintiff that defendant No.1 sent a letter to the plaintiff calling upon the plaintiff to pay the additional amount of Rs. 10 crores to fulfill alleged obligation of the said project. The plaintiff prepared a reply on 31st August, 2006 to the said letter dated 18th August, 2006 along with a cheque of further amount of Rs. 10 lacs to Defendant Nos. 1 and 2 subject to the terms and conditions contained therein. According to the plaintiff, defendant Nos. 1 and 2 did not accept and confirm the said letter dated 31st August, 2006. Suddenly, defendant Nos. 1 and 2 sent a notice to the plaintiff through their Advocate making various incorrect allegations. Thereafter correspondence ensued between the parties. The plaintiff gave a public notice on 19th December, 2006 through their Advocates and ultimately filed the aforesaid suit.
5. Prior to filing of the aforesaid Special Civil Suit No. 292 of 2008, the plaintiff filed Regular Civil Suit No. 450 of 2006 before the Civil Judge, Junior Division, Kalyan, for permanent injunction restraining defendant Nos. 1 and 2 from creating third party interest in respect of the suit lands in any manner whatsoever, to restrain defendant Nos. 1 and 2 from entering into any transaction with the third parties and further to restrain them from transferring the land in question by giving any development rights. The plaintiff also prayed for an injunction that the defendants be restrained from parting with the possession of the suit land and/or any part thereof to any third party in any ::: Downloaded on - 09/06/2013 15:04:54 ::: -11- manner whatsoever. The plaintiff also filed a separate application below Exh. 7 in the said Regular Civil Suit No. 450 of 2006 for seeking leave under Order II Rule 2 of the Code for filing substantive suit for specific performance. It is, however, required to be noted that even though the said application Exhibit-7 was pending, without obtaining prior leave under Order II Rule 2 of the Code, the plaintiff filed subsequent suit being Special Civil Suit No. 292 of 2008. The cause of action for filing the subsequent suit is that the defendant Nos. 1 and 2 executed document styled as agreement for sale in favour of respondent No. 220 on 30th December, 2006 and that this fact came to the notice of the plaintiff when defendant Nos. 1 and 2 filed a reply in Regular Civil Suit No. 450 of 2006 and stated that they had already created right in favour of respondent No. 220.
The plaintiff thereafter submitted an application Exh. 21 in the said Regular Civil Suit No. 450 of 2006 for amendment of the plaint. The said application was allowed and respondent No. 220 was allowed to be added as defendant No. 3 in the said Regular Civil Suit No. 450 of 2006. It seems that in the meanwhile the injunction application Exh. 5 was dismissed by the trial Court on the ground that defendant Nos. 1 and 2 have already created third party interest in favour of respondent No. 220. Being aggrieved by the said order, the plaintiff filed a Miscellaneous Civil Application NO. 89 of 2007 in the Court of the Additional District Judge, Kalyan, and the Court is informed that the same is pending before the appellate Court.
::: Downloaded on - 09/06/2013 15:04:54 ::: -12-6. In the aforesaid Special Civil Suit No. 292 of 2008, respondent No. 220 filed an application below Exh. 32 contending, inter alia, that the plaintiff failed to obtain leave of the Court to omit the reliefs while filing Regular Civil Suit No. 450 of 2006 and on that ground the suit may be dismissed. The learned trial Judge before whom the said Special Civil Suit was pending heard the said application Exh. 32 before hearing the temporary injunction application. The learned Judge after hearing both the sides came to the conclusion that the reliefs claimed in the Special Civil Suit regarding specific performance was available to the plaintiff at the time of filing of Regular Civil Suit No. 450 of 2006( which is a prior suit). The learned trial Judge accordingly came to the conclusion that since the present special civil suit is filed without obtaining leave and hence in view of the mandate of Order II Rule 2 (3), the plaint is liable to be rejected under clause (d) of Rule 11, Order VII of the Code. The learned trial Judge accordingly held that the suit was not maintainable and rejected the suit. Against the aforesaid order of dismissing the suit, the plaintiff has preferred the aforesaid appeal.
7. So far as Writ Petition No. 641 of 2009 is concerned, the same is filed against the judgment and order dated 30th December, 2008 passed by the 2nd Joint Civil Judge, Junior Division, Kalyan, by which the learned trial Judge has rejected the Application Exh. 7 in Regular Civil Suit No. 450 of 2006 which application was filed for granting leave to file separate suit. The learned trial ::: Downloaded on - 09/06/2013 15:04:54 ::: -13- Judge rejected the said application on the ground that the second suit is filed without obtaining the leave of the Court and such leave should have been obtained before institution of the second suit. The learned trial Judge further held that the application is to be decided in consonance with the order passed by the Civil Judge, Senior Division, Kalyan, in Special Civil Suit No. 292 of 2008 because if the application is allowed and the leave is granted to the plaintiff, it would amount to counter blast the order passed by the Civil Judge, Senior Division, Kalyan, and it was held that the application has technically become infructuous. The learned trial Judge also found that the plaintiff has not given cogent reasons for granting leave. The plaintiff without any justifiable reasons chose to omit some reliefs. The learned Judge also found that the application was not filed in a bona fide manner as after filing the application, the plaintiff did not press the application for hearing. The learned trial Judge by the impugned order dated 30th December, 2008 rejected the said application against which the aforesaid writ petition has been filed by the original plaintiff.
8. Mr. D.D. Madon, learned Senior Advocate appearing for the appellant of the First Appeal and Petitioner of the Writ Petition, vehemently submitted that the learned trial Judge has committed an error in dismissing the Special Civil Suit under Order VII Rule 11 of the Code as, according to the learned counsel, without framing the issues and recording the evidence, the Court should not have passed the impugned order. The learned counsel further ::: Downloaded on - 09/06/2013 15:04:54 ::: -14- submitted that it is true that the regular civil suit was filed earlier in point of time wherein the prayer for injunction is made but at that time since the plaintiff was not aware about the subsequent transaction carried out by defendant Nos. 1 and 2, it was not possible for the plaintiff to challenge the said transaction which has subsequently taken place after the filing of the suit. It is submitted that the plaintiff came to know about this fact only when a reply was filed by the concerned defendants and till then the plaintiff was not aware about any such transaction. The learned Counsel also submitted that the first suit is only a suit for injunction and the second suit is a suit for specific performance and even the part of cause of action can be said to be different in both the suits and, therefore, the bar of Order II Rule 2 (3) may not be applicable. Mr. Madon further submitted that there are additional parties in the special civil suit and subsequent suit is also not between the same parties and, therefore, the said bar is also not applicable. According to Mr. Madon, since the nature of both suits being different, bar of Order II Rule 2 (3) of the Code is not applicable. So far as the writ petition is concerned, Mr. Madon submitted that earlier in the First Appeal, a Division bench of this Court (S.B. Mhase & A.A. Sayed, JJ.) on 10th December, 2008 directed the learned trial Judge to dispose of Exh. 7 application in Regular Civil Suit No. 450 of 2006, without being influenced by the order passed by the learned Civil Judge, Senior Division, Kalyan in Special Civil Suit No. 292 of 2008. Yet, the learned Judge has considered the order of the learned Civil Judge, Senior Division and passed the order contrary to the ::: Downloaded on - 09/06/2013 15:04:54 ::: -15- direction given by the Division Bench of this Court.
9. Mr. Madon further submitted that the plaintiff had already submitted an Application at Exh. 7 in Regular Civil Suit No. 450 of 2006 and if the court has not taken up the said application for hearing, no fault can be found with the plaintiff in this behalf. It is submitted that even if subsequent suit is filed without the leave, the learned trial Judge has gravely erred in holding that the application at Exh. 7 has become infructuous, as after obtaining leave the plaintiff can file even another suit i.e. a third suit in the present case. Mr. Madon submitted that this is a case in which the plaintiff is non-suited for specific performance even before it is tried.
10. Mr. Kamdar, learned Senior Advocate, appearing for respondent No. 220, on the other hand, submitted that the suit was rightly dismissed under Order VII Rule 11 of the Code as the subsequent suit has been filed for specific performance without obtaining leave under Order II Rule 2 (3) of the Code.
Mr. Kamdar submitted that in a suit for injunction, the plaintiff could have also asked for a prayer for specific performance of the agreement as the suit for injunction was also based in view of the alleged agreement to sell entered into between the parties. Mr. Kamdar submitted that even though the first suit is a suit for injunction, the plaintiff having failed to ask for any relief of specific ::: Downloaded on - 09/06/2013 15:04:54 ::: -16- performance now cannot file a subsequent suit for the said prayer, without first obtaining the leave from the Court before whom the first suit is pending. It is submitted by Mr. Kamdar that such leave is required to be obtained before filing of the second suit and when the second suit is filed the learned Civil Judge was justified in dismissing the suit on the ground that it is not maintainable.
Mr. Kamdar submitted that once leave is not obtained before filing of the second suit, the second suit was rightly dismissed by the learned trial Judge and in view of the same, the learned Civil Judge, Junior Division, Kalyan, has rightly dismissed Exh. 7 application as there was no question of granting the leave when the subsequent suit is already dismissed by the Court. Mr. Kamdar submitted that in view of the dismissal of the second suit for want of leave as provided by Order II Rule 2 (3) of the Code, the trial Court was justified in rejecting application at Exh. 7. The learned counsel further submitted that now the third suit cannot be filed by the plaintiff by obtaining the leave.
11. Both the learned counsel have taken us through the record and proceedings of the case a well as various case laws on the subject matter.
12. The principal question which is required to be considered is as to whether the subsequent suit i.e. Special Civil Suit No. 292 of 2008 preferred by the plaintiff is maintainable without obtaining leave under Order II Rule 2 (3) of the Code and whether the learned trial Judge has rightly rejected the ::: Downloaded on - 09/06/2013 15:04:54 ::: -17- plaint under Order VII Rule 2 (d) of the Code. Another question which requires consideration is as to whether the learned Civil Judge, Junior Division, Kalyan, has committed an error in passing the order below Exh. 7 in Regular Civil Suit No. 450 of 2006, by which the learned trial Judge has refused to grant relief under Order II Rule 2 (3) of the Code.
13. So far as Regular Civil Suit No. 450 of 2006 is concerned, the said suit is filed for a permanent injunction. The cause of action in the said suit is worded as under:
" 15. The cause of action for filing the present suit first arose when the plaintiffs and defendants made and executed the suit agreement on 16th September, 2005. The cause of action thereafter arose when the defendants sent letter dated 20th May, 2006 to the Plaintiffs and when the Plaintiffs replied the said letter by their reply dated 20th May, 2006. The cause of action thereafter arose when the Defendants sent letter dated 09/11/2006 and another letter dated 18/11/2006 and yet another letter dt. 04/12/2006 to the Plaintiffs and when the Plaintiffs replied the above said letters by reply dated 14/12/2006. The cause of action thereafter is continuously arising till date."
14. It is not in dispute that after the institution of the aforesaid suit, subsequently the plaintiff filed an application at Exh. 7 for obtaining leave ::: Downloaded on - 09/06/2013 15:04:54 ::: -18- under Order II Rule 2 (3) of the Code. It is not in dispute that the said application was pending at the time when the plaintiff filed the subsequent suit i.e. Special Civil Suit No. 292 of 2008 . Accordingly, the subsequent suit was filed without obtaining the leave from the Court under Order II Rule 2 (3) of the Code. The cause of action in the subsequent suit is worded as under:
"The cause of action for filing the present suit first arose when the plaintiffs and Defendant Nos. 1 and 2 made and executed the suit agreement on 16th September, 2005. The cause of action thereafter arose when the defendant Nos. 1 and 2 sent letter dated 20th May, 2006 to the Plaintiffs and when the Plaintiffs replied the said letter by their reply dated 20 th May, 2006. The cause of action thereafter arose when the Defendant Nos. 1 and 2 sent letter dated 09/11/2006 and another letter dated 18/11/206 and yet another letter dated 04/12/2006 to the Plaintiffs and when the Plaintiffs relied the above said letter by reply dated 14/12/2006. The cause of action thereafter arose when a written statement dated 01.03.2007 was filed by the Defendants 1 and 2 admitting that the suit scheduled property has been transferred in favour of Defendant No. 220 hereinabove. Thereafter the cause of action arose in April 2008, when the plaintiff noticed some activities at the suit property and after that also the cause of action arose when the Defendant No. 220 started some levelling activities on the suit property in the month of May, 2008 and the cause of action thereafter is continuously arising till date."::: Downloaded on - 09/06/2013 15:04:54 ::: -19-
15. It is the case of the plaintiff that in the first suit, the defendants filed reply to the effect that an agreement has already been executed by the defendants in favour of defendant No. 220 that the subsequent suit was filed for cancelling the said agreement and for the prayers regarding specific performance, etc. Mr. Madon fairly submitted that in the previous suit the plaintiff could have also asked for the relief of specific performance which relief is asked in the subsequent suit. At this stage, the provision of Order II Rule 2 (3) is required to be considered. The said provision reads thus:
"(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
16. Both the learned counsel have relied upon the decision of the Division Bench of this Court in the case of Canning Mitra Phoenix Ltd. vs. M/s.
Popular Constructions and another 1 In the said decision, it has been held that the plaintiff can seek leave of the Court under sub-rule (3) of Rule 2 of Order II of the Code at any time before the date of decree in the first suit and the jurisdiction of the Court is not ousted because the leave is not sought before the institution of the first suit. The leave to institute the second suit can be sought at any time during the pendency of the first suit but such leave must be obtained prior to the date of institution of the second suit. It has also been held that the 1 1994 Mh. L.J. 812 ::: Downloaded on - 09/06/2013 15:04:54 ::: -20- question as to whether leave should be granted under sub-rule (3) of Rule 2 will depend upon the facts and circumstances of each case and the Court will exercise jurisdiction after considering all the circumstances including whether the application is bona fide and whether it is likely to cause any prejudice to the defendants. Relying on the said judgment, Mr. Madon has argued that the leave can be obtained at any time before the decree in the first suit. Mr. Madon submitted that since the first suit is still pending, the learned trial Judge should have granted the leave. Mr. Kamdar relying upon the said judgment submitted that such leave is required to be obtained prior to the date of the institution of the second suit. Since the second suit was filed without obtaining leave, second suit was not maintainable.
17. Mr. Madon has relied upon the decision of the Privy Council in the case of Jagat Singh and others vs. Sangat Singh and others1. In the aforesaid case, the dispute was regarding portion of the land belonging to one Ishar Singh who died childless on 6th October, 1905, leaving behind him surviving widow Bishan Devi as well as his brother's son Sundar Singh who died on 10 th January, 1922. On 7th February, 1929 the widow purported to make a gift of one portion of the land to Sangat Singh, respondent, and another portion to Gurdwara, respondent No.2. The suit was filed by three sons of Sundar Singh for a declaration that the gifts of land to Sangat Singh and to the Gurdwara have no validity or effect beyond the life of Bishan Devi. Ishar Singh executed a will 1 AIR 1940 PC 70 ::: Downloaded on - 09/06/2013 15:04:54 ::: -21- on 19th September, 1905 of which probate was granted to Bishan Devi by the District Judge of Peshawar on 3rd November, 1906. In November, 1906, Sundar Singh filed a suit before the District Judge, Peshawar against Bishan Devi and others seeking declaration that the will of Ishar Singh was not valid or binding on him. The said suit was compromised in 1907. The subsequent suit was filed by sons of Sunder Singh on 7th August, 1933. In the said suit the trial Court held that the deed was admissible in evidence and that the compromise was entered into by Bishan Devi with knowledge of its contents and voluntarily. In appeal, the High Court held that the deed is inadmissible for want of registration. The High Court also held that by not including in the suit of 1906 a claim to recover possession of the Lyallpur lands, Sundar Singh had forfeited all right therein by virtue of Order II Rule 2 of the Civil Procedure Code, 1882. In that context, the point of Order II Rule 2 of the Code was pressed into service in the aforesaid matter. The Privy Council has made the following observations on which Mr. Madon has relied upon which are at page 73 of the said judgment.
"Moreover, so long as the suit of 1906 was undisposed of, it was always possible that the Court, if it thought that there was anything in the point as to O.2 R.2 would give leave to the plaintiff to amend by including a claim to recover possession of the ornaments and Lyallpur lands. It does not appear that the lawyers advising Bishan Devi thought anything of the point now taken by the High Court and with all respect to the learned Judges Their Lordships cannot regard it as a good one".
Mr. Madon has further submitted that in the regular civil suit i.e. the prior suit, ::: Downloaded on - 09/06/2013 15:04:54 ::: -22- even an application for amendment was submitted by the plaintiff by way of seeking the prayer for specific performance. However, the learned trial Judge rejected the said amendment application. He has further submitted that the said order is already challenged and a writ petition is pending before this Court.
18. Mr. Madon has further placed reliance on the judgment of the Supreme Court in the case of Inacio Martins (deceased through Lrs ) vs. Narayan Hari Naik and others1 wherein it has been held that the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie. In that suit the issue regarding the status of the plaintiff as a lessee was not settled once and for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property. Therefore, the second suit was not barred by res judicata.
19. Mr. Madon has relied upon the decision of the Allahabad High Court in the case of Smt. Aziz Fatima vs. Munshi Khan2 wherein the Allahabad High Court has held that where a prior suit for mesne profits was filed against a licensee by a licensor in Small Causes Court and thereafter another suit for possession was filed in another Court having jurisdiction to entertain the suit, the second suit would not be barred under Order II Rule 2.
1 (1993)3 SCC 123 2 AIR 1980 All. 277 ::: Downloaded on - 09/06/2013 15:04:54 ::: -23-
20. Mr. Madon has also referred to the decision of a Division Bench judgment of the Gujarat High Court in the case of Ravjibhai Mathurbhai Solanki (deceased by LRs and others) vs. Bijalbhai Devjibhai Prajapati and others1. In the said case, the plaintiffs filed suit for permanent injunction restraining defendants from selling the suit land to third parties. On the basis of the apprehension entertained by plaintiffs in view of the efforts of defendants to sell the suit land, the defendants entered into agreement for sale during the pendency of suit despite prohibitory orders. The suit was ultimately withdrawn with the permission of the Court. Again fresh suit for specific performance of agreement for sale of suit land in favour of the plaintiff was filed. It has been held that fresh suit for specific performance is not barred on the ground that it was on a different cause of action.
21. As against that, Mr. Kamdar, learned counsel submitted that the cause of action is substantially the same and the subsequent suit is based on the basis of specific performance which could have very well asked for in the previous suit. Having omitted to ask for the said prayer in the subsequent suit for specific performance is not maintainable without obtaining leave under Order II Rule 2 (3) of the Code. Mr. Kamdar submitted that before filing of the second suit, the leave was required to be obtained and simply because the application was pending in the previous suit for obtaining leave is no ground for 1 AIR 2004 Guj. 102 ::: Downloaded on - 09/06/2013 15:04:54 ::: -24- coming to the conclusion that the second suit was maintainable. It is submitted by Mr. Kamdar that before instituting the suit, leave was required to be obtained. He submitted that even though leave can be obtained at any time but at least such leave must be obtained prior to filing of the subsequent suit. Mr. Kamdar has submitted that the learned trial Judge has rightly rejected the suit.
22. Mr. Kamdar has placed reliance on the decision of the Supreme Court in the case of Gurbux Singh vs. Bhoorlal1 wherein it has been held that plea of bar under Order II Rule 2 (3) has to be established satisfactorily by the defendant and it cannot be presumed on the basis of inferential reasoning. It has been held that in order that a plea of a bar under Order II Rule 2 (3) of the Code should succeed, the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief, (iii) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. It has been held that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.
1 AIR 1964 SC 1810 ::: Downloaded on - 09/06/2013 15:04:54 ::: -25-
23. Reference is made by Mr. Kamdar to another decision of the Supreme Court in the case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others1 wherein it is held that it must be shown that the second suit is based on identical cause of action. The observations of the Supreme Court in the said decision are quoted thus:
"8. A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order II Rule 2 sub-rule (3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. "
24. Kr. Kamdar has relied upon the decision of the Supreme Court in the case of Shiv Kumar Sharma vs. Santosh Kumari2 . In the said case, the Supreme Court has held that if no leave has been taken, a separate suit may or may not 1 (2004) 3 SCC 277 2 (2007)8 SCC 600 ::: Downloaded on - 09/06/2013 15:04:54 ::: -26- be maintainable. The Supreme Court has held as under:
"21. If the respondent intended to claim damages and/or mesne profit, in view of Order II Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly.
22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly."
25. Mr. Kamdar has further relied upon a decision of the Supreme Court in the case of N.V. Srinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs. and others1 . In the aforesaid case, the plaintiffs late father had incurred some debts and had therefore borrowed a sum of Rs. 2000/- from the predecessor-in-title of the defendants. By way of security for the loan advanced, a registered sale deed was executed on 5th May, 1953. It was also the case of the plaintiffs therein that the plaintiffs continued to be in possession of the suit land. In the said suit, the plaintiffs also averred in para 11 that the plaintiffs had earlier filed Civil Suit No. 557 of 1990 before the Court of IInd Munsif, Bangalore, seeking permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit land by the plaintiffs.
The Supreme Court has held that the suit as framed is prima facie barred by the law of limitation, provisions of the Specific Relief Act as also under Order II Rule 2 of the Code. Relying on the said decision, Mr. Kamdar has submitted that in 1 (2005) 5 SCC 548 ::: Downloaded on - 09/06/2013 15:04:54 ::: -27- the present case the plaintiff could have asked for the relief of specific performance and, therefore, without obtaining leave, second suit for specific performance was not maintainable.
26. Mr. Kamdar further made a reference to the decision of the Supreme Court in the case of Ram Prakash Gupta vs. Rajiv Kumar Gupta and others1 wherein it has been held in para 13 as under.
"13. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII, Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandam vs. T.V.
Satyapal and another. (1977) 4 SCC 467."
27. Mr. Kamdar has referred to a decision of the Madras High Court in the case of Manubothula Rama Rao vs. Manubothula Venkayamma and another2 to substantiate his say that the bar of Order II Rule 2 would operate even where reliefs open to plaintiff taken separately and alone would be cognizable in different jurisdiction.
28. Mr. Kamdar further referred to a decision of the Calcutta High Court 1 2007 (6) ALL MR 953 2 AIR 1931 Madras 705 ::: Downloaded on - 09/06/2013 15:04:54 ::: -28- in the case of Phani Bhusan Mukherjee and others vs. Rajendra Nandan Goswami and another1 wherein it has been held that when a previous suit is filed to recover rent for one year, though rent for three years had become due, subsequent suit against the defendants to recover rent for remaining two years was not maintainable. In the facts and circumstances of the case it was held that so far as defendant No.1 was concerned, Order II Rule 2 operated as a complete bar to the subsequent suit but so far as defendant No.2 was concerned, Order II Rule 2 was not directly applicable.
29. Mr. Kamdar has further placed reliance on the decision of the Andhra Pradesh High Court in the case of Kalisetti Subbarayudu and others vs. Pagadala Balaramayya2 wherein it has been held that where all the plaintiffs in the previous suit were entitled to file the previous suit being jointly interested against the defendant within the meaning of Order II Rule 3 and could not have contended that Order II Rule 2 would not be a bar to a subsequent suit by them, the fact that only one of the plaintiffs in the previous suit filed the subsequent suit would not in law make any difference.
30. Mr. Kamdar has relied on the decision of the Delhi High Court in the case of Kamal Kishore Saboo vs. Nawabzada Humayun Kamal Hasan Khan3 wherein it has been held that in a suit for permanent injunction restraining the 1 AIR (34) 1947 Calcutta 11 2 AIR 1955 Andhra 194 3 AIR 2001 Delhi 220 ::: Downloaded on - 09/06/2013 15:04:54 ::: -29- respondents from alienating suit properties where the relief of specific performance is omitted, subsequent suit for specific performance is not maintainable.
31. Reference is made by Mr. Kamdar to the decision of the learned single Judge of this Court in the case of Gajanan R. Salvi vs. Satish Shankar Gupte and others1 wherein it has been held that provisions of Order II Rule 2 is aimed for avoiding multiplicity of the suit and the Court is required to see in substance what is the foundation in the previous suit as well as in the subsequent suit.
32. Mr. Kamdar further relied on the decision of the Gauhati High Court in the case of Smt. Usha Rani Banik vs. Haridas Das and others2 wherein it has been held that when earlier title suit is filed for confirmation of possession and permanent injunction, subsequent suit for specific performance of oral contract of sale is not maintainable in view of Order II Rule 2 of the Code.
33. It cannot be disputed that part of the cause of action in both the suits is substantially the same. The previous suit is filed for injunction but the said prayer is based on the basis of the agreement executed between the plaintiff and defendant Nos. 1 and 2. It cannot be disputed that in the 1 AIR 2004 Bombay 455 2 AIR 2005 Gauhati 1 ::: Downloaded on - 09/06/2013 15:04:54 ::: -30- aforesaid suit prayer for specific performance could have been sought for. The plaintiff was also aware about the same and, therefore, application at Exh. 7 was submitted in the previously instituted suit seeking leave to file suit for specific performance. As per the Division Bench judgment of this Court in the case of Canning Mitra (supra), such leave was required to be obtained prior to filing of the subsequent suit. It is not in dispute that the second suit was filed without obtaining prior leave under Order II Rule 2 (3). In our view, the learned trial Judge was justified in rejecting the plaint under Order VII Rule 11
(d) of the Code.
34. It is required to be noted that the entire case of the plaintiff is based on the agreement entered into between the plaintiff and defendant Nos. 1 and
2. In this view of the matter, even though it is true that subsequently the plaintiff came to know that defendant Nos. 1 and 2 have also entered into an agreement with defendant No. 220, the soul of the plaintiff's suit is the agreement executed between the plaintiff and defendant Nos. 1 and 2. Since the said prayer is omitted in the previously instituted suit, without obtaining appropriate leave under Order II Rule 2, subsequent suit was not maintainable.
Looking to the nature of the transaction, in our view, before instituting the suit for specific performance i.e. the subsequent suit, prior leave was required to be obtained. Considering the aforesaid aspects of the matter, in our view, the institution of the second suit without obtaining leave was bad-in-law. In that ::: Downloaded on - 09/06/2013 15:04:54 ::: -31- view of the matter, the learned Civil Judge, Senior Division, was justified in dismissing the plaint so far as second suit is concerned.
35. However, the question as to whether the learned Civil Judge, Junior Division, was justified in rejecting the application at Exh. 7 for seeking leave under Order II Rule 2 (3) of the Code. At this stage, reference is required to be made to the observations made by a Division Bench of this Court on 10 th December, 2008 which provides as under:
" This appeal arises from Special Civil Suit No. 292 of 2008.
The said suit has been rejected by the Civil Judge, Senior Division on the ground that the suit is not maintainable in view of the provisions of order II Rule 2 (3) and, therefore, the court has invoked the power under clause (d) of Rule 11 of Order VII of the Code of Civil Procedure. Earlier to this suit, the plaintiff had filed Regular Civil Suit No. 450 of 2006 for perpetual injunction and in the said suit along with the application for temporary injunction, the petitioner has filed an application under Order II Rule 2 (3) which is Exh. 7 in that suit.
2. However, all the parties have reported to this Court that the said Court has not passed the final order on the said application. In view of the provisions of Order II Rule 2 (3), the passing of an order on that application is very much necessary.
3. We direct the Joint Civil Judge, Junior Division, Kalyan to dispose of the said application Exhibit-7 from Regular Civil Suit No. 450 of 2006 after hearing the parties. The application shall be disposed of within a period of one month from the date of receipt of this order. While deciding the said application, the Joint Civil Judge, Junior Division, Kalyan, shall not take into consideration and he shall not be influenced by the orders which have been challenged in this ::: Downloaded on - 09/06/2013 15:04:54 ::: -32- appeal."
In view of the aforesaid observations, in our view, the learned Civil Judge, Junior Division should have considered the observations made by the Division Bench in its proper perspective. It is required to be noted that the subordinate Court is bound to carry out the directions and/or observations made by the High Court and the directions given by the High Court should not have been ignored totally by the leaned trial Judge. It is required to be noted that in spite of the observations of the Division Bench as pointed out earlier, the learned trial Judge rejected the application at Exh. 7 by relying upon the decision given in the subsequent suit, though the appeal against the same was pending and the order was stayed in Appeal.
36. It is not in dispute that the plaintiff had already submitted an application at Exh. 7 in the first suit. In the said application, the plaintiff has clearly mentioned that the plaintiff has filed the suit for injunction simplicitor reserving their right to file a substantive suit for specific performance of the suit agreement. It is mentioned that the cause of action arising out the acts done and omitted to be done by the defendants also gave rise to the plaintiff to file a substantive suit for declaration that the alleged termination of the suit agreement by the defendants is unlawful and illegal. Plaintiff has, therefore, ::: Downloaded on - 09/06/2013 15:04:54 ::: -33- decided to split the cause of action and thereby reserved their right to file the substantive suit for the declaration, specific performance and consequential relief against the defendants with the leave of the Court as per Order II Rule 2 (3) of the Code and requested to grant leave in the interest of justice to file a substantive suit against the defendants. It is required to be noted that at the time when substantive suit was filed, application at Exh. 7 was pending before the Civil Judge, Junior Division and it was not decided one way or the other and in spite of the direction of the Division Bench, as referred to above, the learned Civil Judge, Junior Division, has still considered the order passed by the learned Civil Judge, Senior Division, though appeal against the same was pending at the relevant time, which is being disposed of by this judgment.
37. It is required to be noted that simply because the subsequent suit is dismissed on the ground that the same is not maintainable for want of leave under Order II Rule 2 (3) of the Code, in our view, after obtaining such leave, a fresh suit can always be filed as when a suit is dismissed on the technical ground and if leave is subsequently granted, there is no reason as to why after obtaining such leave subsequent suit cannot be filed. The defect is technical in nature and after curing the defect naturally a substantive suit can be filed. In a case where a suit is dismissed against the Government for want of notice under Section 80 of the Code, after requisite notice, a substantive suit after curing such defect can always be filed. In our view, after obtaining such leave a ::: Downloaded on - 09/06/2013 15:04:54 ::: -34- subsequent suit can be filed which can be said to be a third suit in this case. In the instant case, as pointed out earlier, if the leave is not granted as prayed for by the plaintiff, the plaintiff will have no remedy to ask for specific performance of the agreement as the first suit is for injunction in which even the trial Court has rejected the amendment of the plaint seeking relief for specific performance.
We agree with the learned Counsel Mr. Madon's submission that the plaintiff is totally non-suited so far as prayer for specific performance is concerned and in none of the two suits even issues have been framed and the plaint is ultimately rejected on the basis of the application submitted by the defendants. Since the real dispute between the parties is in connection with the agreement executed by defendant Nos. 1 and 2 in favour of the plaintiff and when the plaintiff filed a suit for injunction and in the pending suit having filed an application at Exh. 7 for obtaining leave, in our view, considering the facts and circumstances of the case and considering the nature of the dispute, the leave is required to be granted to the plaintiff in the first suit to file a substantive suit for specific performance. The trial Court has, therefore, gravely erred in rejecting the application at Exh. 7.
38. In our view, considering the facts of the case as indicated above, leave is required to be granted to the plaintiff to sue for specific performance as it cannot be said that by granting such leave the plaintiff may get any unfair advantage or impose an unfair burden on the defendants. On the contrary, by ::: Downloaded on - 09/06/2013 15:04:54 ::: -35- refusing such leave, the plaintiff will be totally non-suited at the threshold of the proceedings. In our view, jurisdiction of the Court cannot be said to be ousted simply because the second suit is dismissed on the technical ground that the prior leave was not obtained. The plaintiff has merely omitted a relief for specific performance for which an application was already filed and in view of the same, the leave as sought for by the plaintiff is required to be granted.
39. Considering the aforesaid aspect, though we agree with the order passed by the learned Civil Judge, Senior Division, in rejecting the plaint as cause of action is substantively the same in both the suits and since the plaintiff has omitted the prayer for specific performance in the first suit, the suit which was filed before obtaining such leave , which should have been obtained prior in time, the learned Judge has rightly rejected the plaint, however, we set aside the order passed by the learned Civil Judge, Junior Division, Kalyan at Exh. 7.
We, therefore, allow the Petition and grant leave to the plaintiff to file substantive suit for specific performance under Order II Rule 2 (3) of the Code.
It is for the plaintiff to file now a substantive suit for specific performance.
40. In view of the above, we see no merit in the First Appeal. The same is accordingly dismissed.
41. For the foregoing reasons, the Rule in the Writ Petition is made ::: Downloaded on - 09/06/2013 15:04:54 ::: -36- absolute. There shall, however, be no order as to costs.
42. In view of the dismissal of the Appeal, no orders are required to be passed in Civil Application Nos. 5173 of 2008 and 5896 of 2008 and the same are accordingly disposed of.
P. B. MAJMUDA1R, J.
ig R.V. MORE, J.
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