Punjab-Haryana High Court
Smt. Bhagwan Kaur vs Shri Harinder Pal Singh on 26 September, 1991
Equivalent citations: (1992)101PLR643
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT B.C. Verma, C.J.
1. This letters patent appeal is by the defendant Shrimati Bhagwan Kaur, widow of the original defendant Bhagwan Singh against the judgment and decree of the learned Single Judge whereby the plaintiff's suit for specific performance of the contract for sale of certain agricultural land as per the agreement dated April 11, 1969, has been decreed, it may be mentioned that the suit was dismissed by the trial Court.
2. Some necessary facts are that vide agreement dated April 11, 1969, Bhagwan Singh (since deceased) agreed to sell agricultural land measuring 55 bighas comprised in Khasra No. 176 in village Dhamomajra for a consideration of Rs. 82,500/-. A sum of Rs. 5,000/- was paid as earnest money and the balance was agreed to be paid after defendant got the land partitioned. The agreement also stipulated for payment of Rs. 40,000/- as penalty for non-performance of the agreement. Since the defendant neither initiated the partition proceedings nor executed the sale deed in favour of the plaintiff despite demand, the suit for specific performance of the agreement to sell was filed. The averment in the plaint is that the plaintiff-respondent was ever ready and willing to perform his part of the contract on payment of the balance sale price. It may also be mentioned that at one stage the defendant Bhagwan Singh alienated a part of the land and threatened to continue to alienate further and, therefore, the plaintiff-respondent brought a suit claiming injunction against Bhagwan Singh, deceased, seeking to restrain him from alienating the suit land. That suit was, however, dismissed for default of appearance on January 1.1, 1971, whereafter instead of getting that suit restored, the plaintiff respondent filed the present suit on January 14, 1971. The suit was resisted by the defendant only on the ground that no such agreement to sell the land was executed. The receipt of the earnest money by him from the plaintiff in pursuance thereof was also denied. A plea was also raised that the plaintiff was estopped from filing the personal suit because of the dismissal of the earlier suit. On such a written statement, the following issues alone were struck by the trial court:
(1) Whether the defendant executed an agreement of sale dated 12.4.1969 in favour of the plaintiff and received Rs. 5,000/- as earnest money?
(2) Whether the suit is barred by the principal of estoppel?
(3) Whether the plaintiff was willing and ready to perform his part of contract?
(4) Relief.
3. The trial court held that the agreement was executed as alleged by the plaintiff, that the plaintiff was ready and willing to perform his part of the contract and that the plaintiff was not estopped from riling the present suit. However, the relief of specific performance was denied to him on the grounds that the defendant had alienated some land prior to the filing of the suit and had also alienated some land during the pendency of the suit and that the subsequent vendees had not been made parties to the suit The relief of specific performance was also declined because the suit land was not got partitioned by the defendant as stipulated in the agreement. The trial court, thus, granted a decree for the return of Rs. 5,000/- and also awarded Rs. 3,000/- as damages.
4. The plaintiff-respondent preferred an appeal before the Court. It was registered as Regular First Appeal No. 232 of 1975. The appeal was allowed by the learned Single Judge vide judgment dated September 22, 1983. It maintained all the findings recorded by the trial Court on the issues framed and held that there was no impediment to the grant of the decree for the specific performance, as per agreement. The plaintiff's suit was consequently, decreed.
5. Shri J.R. Mittal, the learned counsel for the appellant, raised the following grounds in support of the appeal.
6. According, to the learned counsel, the suit of the plaintiff was barred under Order IX Rule 9, Code of Civil Procedure (hereinafter called the Code). This contention has to be rejected on the short ground that it could not be shown if the appellant was present on the date when the suit was decreed and, therefore, it cannot be ascertained if the suit was dismissed under Order IX Rule 3 or under Order IX Rule 8 of the Code. Apart from this, such a plea was not raised in the written statement and precisely for that reason, no issue was struck by the trial Court in that regard.
7. The learned counsel also contended that the suit is barred under Order II Rule 2(2) of the Code. This contention has also to be rejected on the ground that such a plea was never raised. However, since the plea was argued at some length on the basis of certain authorities by the learned counsel, we propose to discuss its merits as well. The contention is that in the earlier suit filed by the plaintiff seeking injunction against the appellant, the relief of specific performance should also have been claimed, since the same was available to him. We are not inclined to accept this contention also. Order II Rule 2(2) of the Code reads as under:-
"2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-Explanation..."
It may be seen from its plain terms that what this rule provides is that the plaintiff may be precluded from claiming that portion of the claim which he intentionally omits to sue or which he intentionally relinquishes. It may be mentioned that the plaint in the earlier suit had not been filed. However, from a narration of facts in the judgment of the learned Single Judge, it appears that the cause of action in the earlier suit was the alienation made or threatened to be made by the defendant-appellant. May be that while narrating the facts, the plaintiff also made a mention of the agreement to sell but then it is evident that the cause of action was not founded upon that agreement. The alienations made by the defendants necessited the filing of the suit and formed the cause of action. The cause of action mentioned in Order II rule 2(2) of the Code obviously means the cause of action for which the suit was brought. In order that the cause of action in both the suits may be the same it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same, but also that the infringement of his right at the hands of the defendant must have arisen, in substance, out of the same transaction as held by the Privy Council in Mohammad Khan v. Mahbub Ali Mian, A.I.R. 1949 P.C. 78. a rough test although not a conclusive one, as to whether the cause of action in subsequent suit is the same as that in the former suit is to see whether the same evidence will sustain both suits. Regard has to be had to the allegations in both the suits. It need not be emphasised that in a suit for specific performance, it is necessary for the plaintiff to aver and prove his readiness and willingness to perform his part of the contract which was apparently not necessary to be pleaded in the earlier, suit filed by the plaintiff claiming injunction. We may usefully refer to a Division Bench decision of the Lahore High Court in Lachha Mal-Sardari Mal v. Hirde Nath, A.I.R. 1925 Lah. 459 D.B. There also, the plaintiff who had an agreement of sale in his favour filed a suit for injunction against the defendants. That suit was held as not maintainable and dismissed. Subsequent suit for specific performance of the agreement was held to be maintainable and Order II Rule 2 of the Code was ruled as no bar to the maintainability of the subsequent suit for specific performance. This Division Bench precisely answers the issue against the appellant and in favour of the respondent.
8. In support of his contention, the learned counsel for the appellant cited a decision of the Privy Council in Naba Kumar Hazra v. Radhashyam Mahish, A.I.R. 1931 P.C. 229. In the said case, the claim in the earlier suit was founded upon the mortgage and the decree was for the conveyance of the property, but there was no order for accounts. That claim was not pressed there. The second suit was on the allegations that after the execution purchase of the properties, the defendants received certain rents and profits which they had not accounted for and for which the claim was made. Such a suit was held as not maintainable as barred by Order II rule 2 of the Code. It was observed that the cause of action in the subsequent suit was the same as in the previous suit. The right to rent and profits vested on the same foundation of facts and law as the right to have the purchases of the decree and of the property declared to be purchased for the mortgagors. This decision, therefore, hardly helps the case of the appellant. We have indicated above that in the present case, the foundation for the claim of specific performance is not the same as was in the earlier suit restraining the alienation. This decision is, therefore, clearly not applicable to the present case. Instead we notice that the Supreme Court in Gurbax Singh v. Bhooralal, A.I.R. 1964 S.C. 1810, clearly laid down that a plea of bar of a suit under Order II rule 2 of the Code, if brought, should be satisfactorily established by the defendant and cannot be presumed on the basis of any inferential reasoning. The pleadings in the earlier suit have to be filed in the subsequent suit. Admittedly, in the present case the pleadings in the earlier suit, were not filed and that omission is sufficient to disentitle the defendant-appellant to raise such a plea. The defence so raised, therefore, has rightly been negatived.
9. Yet another contention raised has been that a part of the suit land was earlier alienated, and during the pendency of the suit also, certain alienations were made. We do not see how anything in favour of the appellant can turn upon such a suggestion when no such plea was ever raised in the written statement. If any such plea was raised, the plaintiff could have well demonstrated that the alleged alienations were only nominal or fictitious. Nothing, therefore, turns upon such a plea.
10. It was also urged that the suit was premature inasmuch as the conditions as to the prior partition of the suit land in terms of agreement was not fulfilled. Such a plea was also not raised in the trial Court No issue was struck or tried in this regard and, therefore, the appellant cannot be permitted to raise such a plea at a later stage Even so, the learned Single Judge has elaborately considered this argument and has rightly found that despite the alienations made, the defendant-appellant was still in possession of more land than that was agreed to be sold. Be that as it may, we cannot hear the defendant-appellant to raise such a defence, now particularly in a suit for specific performance.
11. Lastly, it was urged that a condition should be appended to the decree that the sale deed will be executed only after the defendant seeks partition. The learned counsel for this proposition, relied upon the decision in Manavalan v. Marry, (1980) M.L.J. 43. That decision is distinguishable on its own facts. In that case, the plaintiff, whose suit for specific performance of the contract contained reciprocal promises, wanted to erect a building on the plot of land agreed to be sold to her. For this purpose, the defendant was required to make an application for obtaining permission from the local authorities. The defendant did not obtain the necessary sanction although the plaintiff made all efforts to get the necessary application signed by the defendant. The Court held that the contract of sale subject to the sanction of the plan by the municipal corporation was not a contigent contract capable of being enforced only when the plan is sanctioned. It was observed that the agreement in unmistakable terms provided that the sale shall be gone through only if the plan is sanctioned by the Corporation. It was for that reason and in view of the specific terms in the agreement that the Supreme Court added in the decree of the trial Court that the sale deed should be executed by the defendant only after the plan is sanctioned by the Corporation. Agreement, Exhibit P. 2, in the present case is not so. All that is recited therein is that the possession shall be given to the plaintiff after getting the land legally partitioned by the Court within a month. This feature distinguishes the decision relied upon. However, as we have stated earlier, such a defence was not raised and it can well be presumed that the defendant-appellant waived that condition.
12. Thus, all the contentions raised in support of the appeal by the learded counsel for the appellant have no force and are hereby rejected. The appeal is dismissed with costs.
13. Before parting with this appeal, it may be added that the respondent has withdrawn all the amount deposited by him in the trial Court for seeking specific performance of the contract in terms of the judgment and decree, passed by the learned Single Judge in his favour. He may now deposit that amount in the trial Court within a period of one month from today.