Punjab-Haryana High Court
Dalip Singh vs Mehar Singh And Ors. on 18 August, 1998
Equivalent citations: (1998)120PLR261
JUDGMENT V.K. Jhanji, J.
1. This is defendant's second appeal directed against the judgment and decree of first Appellate Court whereby on acceptance of appeal preferred by the plaintiff, suit of the plaintiff for specific performance of agreement dated 25.5.1987 has been decreed. Trial Court had dismissed the suit on the ground that the same is barred under Order 2 Rule 2, C.P.C.
2. Dalip Singh defendant (appellant herein) was the owner of land measuring 69 Kanals 10 Marias i.e. the suit land. He entered into an agreement to sell dated 25.5.1987 with the plaintiff. Under the agreement, sale consideration was fixed at Rs. 1,70,000/-. At the time of execution of agreement, plaintiff paid Rs. 1,25,000/- as the earnest money. Defendant No. 1 was to execute sale deed on or before 25.7.1987. Later on the said date was changed to 25.8.1998. It is the case of the plaintiff that before execution of the agreement, defendant No. 1 was to get income tax clearance certificate from the Income Tax Department and was also required to get mutation of suit land sanctioned in his favour because he had received the land through a Civil Court decree passed in Civil Suit No. 122 of 19.3.1984 in case titled Dalip v. Sarti. Plaintiff alleged that he served three registered A/D notices dated 17.8.1987, 19.8.1987, 20.8.1987 and telegram dated 19.8.1987 calling upon the Defendant No. 1 to execute sale deed in terms of agreement to sell. Defendant No. 1 did not give any reply to the same nor did he give any information as to whether he had obtained the Income-Tax clearance certificate and got sanctioned the mutation in his name or not. Plaintiff alleged that on 24.8.1987 he came to know that defendant No. 1 had purchased three stamp papers of the value of Rs. 3,250/-, Rs. 3,250/- and Rs. 6,000/for selling the land to defendants No. 2 to 4. Plaintiff averred that on coming to know of this, he appeared before the Sub-Registrar and informed him that the defendant No. 1 had already executed an agreement to sell in his favour. Plaintiff further averred that on presentation of the sale deed by the defendant No. 1 in favour of defendants No. 2 to 4. Sub-registrar refused to register the sale deeds. Since plaintiff was apprehending that the defendant No. 1 may sell the land to someone else, he filed suit for injunction on 27.8.1987 and interim injunction was granted in his favour restraining defendant No. 1 from transferring the suit land to any one else. Despite interim injunction, defendant No. 1 transferred the property in favour of defendants No. 2 to 4. Because of transfer of land, plaintiff was left with no alternative but to file suit for specific performance of the agreement to sell. The said suit was filed on 24.11.1987 at Panipat. Suit for injunction was withdrawn on 10.12.1987 i.e. subsequent to the filing of suit for specific performance. Later, it transpired that the Court competent to entertain the suit for specific performance was Civil Judge, (Sen;or Divn.), Gohana, Sub-Division of Panipat. Therefore, plaint was returned accordingly on return, the same was presented before Civil Judge (Senior Div,), Gohana on 21.3.1989.
3. Upon notice, defendant No. 1 denied the execution of agreement to, sell. He also said that plaintiff was not ready and willing to perform his part of the agreement. Defendant No. 2 to 4 in their joint written statement took up similar pleas. In addition, they took up the plea that they are bona fide purchasers for consideration.
4. On the pleadings of the parties, the following issues were found:-
1. Whether defendant No. 1 entered into an agreement for sale on 25.5.1987 in respect of the suit land with the plaintiff? OPP.
2. Whether the plaintiff is entitled for specific performance of the contract dated 25.5.1987? OPP.
3. Whether the suit is not maintainable in the present form? OPD.
4. Whether the plaintiff has no locus standi to file the present suit? OPD.
5. Whether the suit is barred by limitation? OPD.
6. Whether the plaintiff has suppressed the material facts of the case. If so, its effect? OPD.
7. Whether the defendants No. 2 to 4 are bona fide purchasers. If so, its effect? OPD.
8. Relief.
5. Trial Court held that defendant No. 1 had entered into agreement of sale on 25.5.1987 in respect of suit land with the plaintiff and plaintiff was always been ready and willing to perform his part of the obligation under the agreement. Defendants No. 2 to 4 were held not to be bona fide purchasers. The trial Court further held that the transfer in their favour is hit by doctrine of lis pendens. Trial Court, however, dismissed the suit by saying that suit is barred under Order 2 Rule 2, C.P.C. In appeal by the plaintiff, first Appellate Court did not agree with the finding of the trial Court that suit is barred under Order 2 Rule 2, C.P.C. and the finding in this regard being erroneous was set aside. On all other issues, finding of the trial Court was affirmed. Resultantly, suit for the plaintiff was decreed. Hence this second appeal by defendant No. 1 (vendor) alone.
6. Mr. S.C. Kapur, Senior Advocate, appearing on behalf of defendant No. 1 has contended that the Courts below erred in holding that the plaintiff was ready and willing to perform his part of the agreement. It is contended that plaintiff had not appeared in the office of the Sub-Registrar on 25.8.1987, the last date fixed for execution of sale deed and that shows that the plaintiff was not ready and willing to perform his part of the agreement.
7. I find no merit in this contention of the learned counsel. It has come on the record that before 25.8.1987 i.e. the last date fixed for execution of sale deed, defendant No. 1 purchased three stamp papers of the value of Rs. 3,250/-, Rs. 3,250/- and Rs. 6,000/- for executing sale deeds in favour of defendants No. 2 to 4. Plaintiff, on coming to know that defendant No. 1 is intending to sell land in favour of defendants No. 2 to 4, appeared before the Sub-Registrar and submitted before him that defendant No. 1 had already entered into an agreement with him and was not competent to sell land to someone else. Plaintiff has also proved on record various registered notices and telegram which he had sent to defendant No. 1 calling upon him to execute sale deed and receive the balance sale consideration but defendant No. 1 did not care to give reply to those notices and telegram. Upon notice of the present suit, defendant No. 1 instead of admitting the execution of the agreement has gone to the extent of denying the vary execution of the agreement. This clearly shows that it was defendant No. 1 who was not keen to execute sale deed in favour of plaintiff whereas plaintiff was always ready and willing to perform his part of the obligation under the agreement.
8. Mr. S.C. Kapur next contended that the first Appellate Court has committed serious legal error in holding that the provisions of Order 2 Rule 2, C.P.C. do not apply to the case in hand because suit for specific performance was instituted during the pendency of suit for injunction. It is contended that plaintiff, on the date he filed suit for injunction, had become entitled to sue for specific performance of the agreement but omitted to seek relief in this regard. Counsel contended that the plaintiff had not sought leave of the Court to sue for specific performance of the agreement afterwards and, therefore, plaintiff is not entitled to the relief of specific performance of the agreement.
9. In answer to these submissions, it is contended by Mr. U.S. Sahni, Advocate, counsel for the caveator-plaintiff that reasons given by the first Appellate Court for holding the suit not to be barred under Order 2 Rule 2, C.P.C. may not be sustainable but conclusion in regard to suit being not barred under Order 2 Rule 2, C.P.C. is correct. It is contended that defendant No. 1 had neither taken any plea with regard to bar of the subsequent suit under Order 2 Rule 2, C.P.C. nor the cause of action for filing suit for specific performance of agreement had accrued to the plaintiff on the date the suit for injunction was filed.
10. The contention that first Appellate Court committed error in holding that bar of Order 2 Rule 2, C.P.C. is not applicable simply on the ground that latter suit had been instituted during the pendency of the earlier suit, appears to be correct. The requirement of Order 2 Rule 2, C.P.C. is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of cause of action. A cause of action means the cause of action for which suit was brought. In Sidramappa v. Rajshetty, A.I.R. 170 S.C. 1059, it has been held that a cause of action is that which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief, then that to which he limits his claim, he cannot afterwards seek to sue for the balance relief by independent proceedings unless leave of the Court had been sought. The expression 'afterwards' can be construed only with reference to what preceeds it viz. omits to sue. When so construed, the point of time for the purpose of determining the bar under Order 2 Rule 2, C.P.C. is the date of the institution of the suit. If the plaintiff fails to omit any portion of the claim which he is entitled to make, or omits one of the reliefs, in case he is entitled to more than one reliefs in respect of cause of action, he is not entitled to sue for the portion of the claim or the relief so omitted in a subsequent suit though may have been filed during the pendency of the first suit.
11. The contention of learned counsel for the defendant that suit filed by the plaintiff is barred under Order 2 Rule 2, C.P.C. however, is not sustainable on two counts. Firstly, the plea of applicability of Order 2 Rule 2, C.P.C. and the subsequent suit being barred, was not taken by the defendants in their written statement filed in response to the notice of the suit nor any issue was framed on such a. plea. The sine qua non for applicability of Order 2 Rule 2, C.P.C. is that a person entitled to more than one reliefs in respect of same cause of action has omitted to sue for some relief without the leave of the Court. When an objection regarding bar under ; Order 2 Rule 2, C.P.C. is taken, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject-matter of previous action. In the absence of pleadings or proof of the identity on cause of action, defendant cannot be permitted to raise the plea of bar of (sic) under Order 2 Rule 2, C.P.C. In the present suit, neither there are pleadings in regard to suit being barred under Order 2 Rule 2, C.P.C. nor any issue was framed or any opportunity was given to the parties to lead evidence in this regard.
12. Secondly, bar of Order 2 Rule 2, C.P.C. would become applicable if both the suits are based on same cause of action. As already seen, Order 2 Rule 2, C.P.C. requires unity of all claims based on the same cause of action in one suit. If the identity of causes of action is established, the rule would immediately become applicable and it will have to be held that since the relief claimed in the subsequent suit was omitted to be claimed in the earlier suit, without the leave of the Court in which previous suit was filed, subsequent suit is liable to be dismissed as the defendants in both the suits- cannot be vexed twice by two separate suits in respect of the same cause of action but it does not contemplate unity of distinct and separate causes of action. If, therefore, subsequent suit is based on different cause of action, the rule will not operate as a bar.
13. In the present case, agreement to sell dated 25.5.1987 provided that before execution of sale deed, vendor would obtain Income-tax clearance certificate and get mutation of land sanctioned in his favour. It is only on fulfilment of two conditions that cause of action would have accrued to the plaintiff to seek execution of sale deed on payment of balance sale consideration. Defendant No. 1 was required to send intimation to the plaintiff about fulfilment of these two conditions well before the date fixed for the execution of the sale deed which admittedly he never did. On the other hand, defendant No. 1 tried to sell land to defendants No. 2 to 4 on 24.8.1987 and for that purpose, purchased stamp papers and scribed sale deeds in favour of Defendants No. 2 to 4. In this situation, it could not be held that cause of action for filing suit for specific performance had accrued to the plaintiff on 25.8.1987/27.8.1987 or that defendant No. 1 was ready and willing to execute the sale deed in favour of the plaintiff on the said date. It is only in the written statement filed in response to the suit for permanent injunction that defendant No. 1 revealed that he had obtained income-tax clearance certificate and got the mutation sanctioned. On having been informed that the two conditions have been fulfilled, cause of action accrued to the plaintiff to sue for specific performance of agreement and, immediately thereafter suit for specific performance was filed. Thus, in the present case, the cause of action in the subsequent suit was entirely different. The causes of action in the two suits being not identical, bar under Order 2 Rule 2, C.P.C. was inapplicable.
14. The judgments cited by the learned counsel in Ishar Dass v. Kanwar Bhan, (1991-2)100 P.L.R. 578, Surjit Kaur v. Anil Kumar, (1997-3)117 P.L.R. 636 and Smt. Ralli v. Satinderjit Kaur, (1998-1)119 P.L.R. 666 are not applicable to the facts of the present case are clearly distinguishable. In the said cases, it had been proved on facts that the causes of action in the previous suit and the subsequent suit were identical.
15. In the result, the appeal fails and is dismissed.