Punjab-Haryana High Court
Rao Narain Singh (Deceased) And Ors. vs Smt. Durga Devi (Deceased) And Ors. on 27 August, 1997
Equivalent citations: (1997)117PLR760
JUDGMENT V.K. Jhanji, J.
1. This is plaintiffs' second appeal directed against the judgment of the Court below whereby suit of the plaintiffs for possession by way of specific performance of the agreement of sale dated 21.12.1984 relating to the house in dispute has been dismissed.
2. In brief, the facts are that one Durga Devi now represented after her death by her daughter and daughter's daughter (respondent (i) & (ii) herein) was the owner of the house measuring 475 sq. yards in Ballabgarh. According to the plaintiffs, she agreed to sell the house to the plaintiffs for a consideration of Rs. 2.12,000/- and in this regard, executed agreement of sale on 21.12.1984. At the time of execution of the agreement, plaintiffs paid a sum of Rs. 5,000/- as earnest money and the remaining consideration was to be paid before the Sub-Registrar at the time of Registration of the said sale-deed. In respect of half portion of the house, plaintiffs were to get the sale-deed executed and registered on or before 31.3.1985 on payment of half of the amount and for the remaining half portion, plaintiffs were to get the sale-deed executed and registered on or before 30.6,1985. It is the case of the plaintiffs that they had always been ready and willing to perform their part of the contract in accordance with the terms of agreement of sale and for that matter, they approached Durga Devi to execute the sale-deed in accordance with the terms of the agreement, who in turn with a malafide intention demanded a sum of Rs. 5000/- over and above the sale consideration already agreed between the parties, but the plaintiffs did not agree to the said unjust and illegal demand of Durga Devi. It is further the case of the plaintiffs that Durga Devi was informed through telegram dated, 27.3.1985 to come to the office of the Sub-Registrar on 29.3.1985, because 30.3.1985 and 31.3.1985 were holidays, and to execute the sale-deed in favour of the plaintiffs but she did not come present as requested. Instead she threatened to sell the suit property in favour of a third party and so, under compelling circumstances two suits for injunction for restraining her from selling the suit property to the third party, were filed. Plaintiffs also averred in their plaint that after the institution of suits, plaintiffs came to know that Kulbhushan, respondent No.2 (defendant No.2 in the suit) had filed an application before the Deputy Commissioner, Faridabad, Under Section 41 of the Indian Stamp Act, seeking permission to make up the deficiency on the amount of stamp duty in respect of agreement of sale dated 2.10.1984 regarding the house in dispute. Plaintiffs objected to the course adopted by respondent No.2. The Deputy Commissioner, Faridabad, rejected the application and did not make any endorsement on the said agreement. Plaintiffs alleged that agreement dated 2.10.1984 set up by respondent No.2 is a forged and fictitious document and has been created in collusion with Durga Devi. Plaintiffs thus, prayed that they are entitled to the decree for specific performance of the contract of sale dated 21.12.1984 and in the alternative, decree for recovery of Rs. 2,12,000/- as damages. On notice of the suit, Durga Devi and Kulbhushan (respondents 1 and 2 respectively) contested the suit by filing separate written statement. 'In her written statement, Durga Devi alleged that prior to the agreement of sale in favour of the plaintiffs, she on 2.10.1984 had contracted to sell with Kulbhushan (respondent No.2) the house in dispute for a consideration of Rs. 2,12,000/-. She further submitted that Kulbhushan had paid Rs. 1000/- as earnest money at the time of execution of the agreement and further paid Rs. 4000/- on 12.10.1984. She also submitted that Kulbhushan was put in possession of the house in part performance of the contract. In regard to the agreement of sale in favour of plaintiffs, she submitted that one Subhash Grover, a deed-writer of Ballabgarh, was doing the business of real estate with Rao Narain Singh, appellant No.1, and Radhey Sham Gupta, husband of plaintiff No.2. She submitted that Subhash Grover was well acquainted with her since long. The said Subhash Grover along with plaintiff No.l and husband of plaintiff No.2 contacted her many a times for selling her house to them and she told them about agreement dated 2.10.1984 with Kulbhushan but they induced her to enter into agreement to sell and on their inducement, she signed agreement to sell dated 21.12.1984 in favour of the plaintiffs. She in her written statement has given in detail the manner in which she was induced, and submitted that she being an old lady genuinely believed in the utterances made by three of them. She also submitted that she herself was not in a position to discover the truth and thus, failed to appreciate the true facts, meanings and scope of agreement of sale dated 21.12.1984. She, therefore, submitted that plaintiffs had obtained the alleged agreement of sale dated 21.12.1984 without her free consent. Defendant No.2 Kulbhushan apart from taking the preliminary objection with regard to suit being barred under Order 2 Rule 2, Code of Civil Procedure, in his separate written statement, submitted that Durga Devi had entered into agreement of sale in respect of the property for Rs. 2,12,000/-. He submitted that an earnest money of Rs. 1000/- was paid at the time of execution of the agreement and Rs. 4000/- on 12.10.1984, and in part performance of the contract she delivered possession of the house in her possession to him. Defendant No.2 further submitted that plaintiffs had the knowledge of agreement of sale dated 2.10.1984 and therefore, any subsequent agreement was of no consequence. Plaintiff in their, replication denied the averments made in the written statements and reiterated what they had submitted in their plaint.
3. On the pleadings of the parties, the following issues were framed: -
1. Whether the defendant No.1 executed an agreement to sell dated 21.12.84. If so, to what terms? OPP.
2. Whether the defendant No.1 received a sum of Rs. 5000/- as earnest amount as part of sale price? OPP.
3. Whether the plaintiffs have been ready and willing to perform their part of the contract? OPP.
4. Whether the defendant No.2 in collusion with the defendant No.1 forged a writing purported to be an agreement to sell? OPP.
5. Whether the defendant No.2 had prior knowledge about the agreement dated 21.12.84. If so, to what effect? OPP.
6. Whether the defendant No.1 is a pardanashin lady. If so, to what effect? OPP.
6A. If issue No.6 is proved, whether the agreement dated 21.12.84 is an outcome of free consent? OPP.
7. Whether the plaintiffs are debarred from filing the suit by their own acts conduct, if so, what effect? OPD.
8. Whether the plaintiffs have no locus-standi to file the suit? OPD.
9. Whether the defendant No.2 is in possession of the disputed property in part performance of the agreement. If so, to what effect? OPD.
10. Relief.
On 22.3.1986 and 6.6.1996, the following additional issues were framed:-
1-A. Whether the agreement dated 2.10.84 is forged and fabricated and was created after 21.2.84. If so, to what effect? OPP.
9-A. Whether the suit is barred u/o 2 Rule 2 C.P.C. and by principle of resjudicata? OPD-2.
Trial Court on appreciation of evidence on record found that Durga Devi had executed agreement of sale dated 21.12.1984 in favour of plaintiffs. However, trial Court at the same time also held that agreement dated 2.10.1984 was not forged, fabricated or created after 21.12.1984 as was alleged by the plaintiffs, meaning thereby that the agreement in favour of defendant No.2 was found to be valid. Trial Court also concluded that the agreement of sale in favour of the plaintiffs was voidable on the option of Durga Devi as being a result of fraud and misrepresentation. The issue in regard to suit being barred under Order 2 Rule 2, Code of Civil Procedure, was also decided against the plaintiffs. Since the agreement in favour of defendant No.2 was prior in date to the agreement executed by Durga Devi in favour of plaintiffs, suit of the plaintiffs was dismissed. In appeal before the District Judge, on re-appreciation of evidence the finding of the trial Court in regard to both the agreements was affirmed. The learned District Judge, however, did not agree with the trial Court that the agreement in favour of the plaintiffs was a result of fraud and misrepresentation. The learned District Judge though observed that the execution of the agreement in favour of plaintiffs was somewhat under suspicious circumstances, but in absence of any evidence in regard to fraud and misrepresentation the agreement could not have been vitiated. Hence, the present second appeal by the plaintiffs.
4. It has been contended by the counsel for the plaintiffs that the Courts below have failed to consider and appreciate that the agreement in favour of defendant No.2 was set up only in order to frustrate the agreement of sale in favour of the plaintiffs. Counsel contended that agreement dated 2.10.1984 in favour of defendant No.2 was on a plain paper and only a sum of Rs. 1000/- was stated to have been paid at the time of execution of the agreement. He contented that it is beyond one's comprehension that Durga Devi would be influenced for entering into agreement of sale for the second time in favour of the plaintiffs for a paltry and insignificant enhanced amount of Rs. 2000/- only. He also pointed out that in case there had been agreement dated 2.10.1984 in favour of defendant No. 2, then what was the necessity to execute another agreement of sale dated 23.8.1985 (i.e. during the pendency of the suit). Counsel further contended that the very fact that the agreement dated 2.10.1984, receipt for Rs. 1000/- of the same date, and another receipt dated 12.10.1984 by which payment of Rs. 4000/- was made by defendant No.2 to Durga Devi, is scribed by the same deed-writer and witnessed by the same witnesses, makes it clear that all these documents were executed at one and the same time. Counsel also made reference to the subsequent agreement dated 23.8.1985, Exh. D-30, to contend that the same is also scribed by the same deed-writer. Plaintiffs' counsel also contended that the findings of the Courts below in regard to the suit being barred under Order 2 rule 2, Code of Civil Procedure, is also erroneous inasmuch as the suit for permanent injunction filed by the plaintiffs was based on different cause of action, whereas the present suit for specific performance was on account of breach of contract by Durga Devi.
5. Against this, Mr. B.S. Gupta, Sr. Advocate, for the defendants, submitted that both the Courts below on appreciation of evidence on record have returned the finding of fact in regard to execution of agreement of sale in favour of defendant No.2. He submitted that the suit has rightly been dismissed as the agreement of sale in favour of defendant No.2 is prior in time to the agreement set up by the plaintiffs. He further contended that the Courts below have rightly held that the suit filed by the plaintiffs is barred under Order 2 Rule 2, Code of Civil Procedure, because the day when the suits for injunction were filed, a right had also accrued to the plaintiffs to sue for specific performance of the contract. Plaintiffs having omitted to sue for specific performance of the contract, their subsequent suit on the same cause of action has rightly been held to be barred under Order 2 Rule 2, Code of Civil Procedure.
6. After hearing the learned counsel for the parties, I am of the view that there is no merit in the appeal. Trial Court as well as the first appellate Court after appreciating the oral as well as documentary evidence on record have found that the execution of agreement dated 2.10.1984 by Durga Devi in favour of Kulbhushan, defendant No.2, was not manoeuvred to defeat the rights of the plaintiffs under agreement of sale dated 21.12.1984. The Courts further found that the agreement in favour of defendant No.2 was duly executed on 2.10.1984. For coming to this finding, apart from others following facts and circumstances were taken into consideration :-
(i) Durga Devi had admitted the execution of agreement dated 2.10.1984.
(ii) There was sworn testimony of Ram Chander, scribe of the document, as well as of Ram Avtar Arya, attesting witness to the agreement.
(iii) The assertion made by defendant No.2 that agreement dated 2.10.1984 was executed in his favour by Durga Devi.
(iv) No circumstances on record to show that Ram Chander was swayed by any consideration in espousing the cause of defendant No.2.
(v) Before filing of the written statement but after institution of the suit, Durga Devi had filed suit for injunction against defendant No.2 for restraining him not to recover rent from the tenants till the execution of the sale-deed. In that suit, she admitted the execution of agreement in favour of defendant No.2.
(vi) Durga Devi had also admitted that defendant No.2 had paid her a further sum of Rs. one lac through bank draft vide agreement dated 23.8.1985 and taken symbolic possession from her of the remaining portion of the house in dispute of different suit.
(vii) Before filing the present suit, plaintiff, Rao Narain Singh, had filed suit on 16.4.1985 for grant of injunction and after the Court had refused to grant injunction, suit for injunction was got dismissed as withdrawn.
(viii) Suit No. 167 of 1985, Exb.-14, was filed by the plaintiffs against Durga Devi in the month of April/May, 1985, wherein' she had filed written statement and asserted therein that she had contracted to sell the property in suit in favour of defendant No.2 on 2.10.1984.
(ix) Various ejectment petitions filed by Kulbhushan against different tenants in respect of the portion of the house in dispute.
(x) The continuous occupation of house by defendant No.2 after the execution of the agreement.
From the above, it is apparent that the finding of the Courts below in regard to the execution of agreement in favour of defendant No.2 is based upon the evidence led by the respective parties. This Court in second appeal can interfere only when the last Court on fact records a finding based on no evidence or on misreading1 Of the evidence or without considering the entire evidence on record. In the present case, the Courts have given reasons in support of the conclusion arrived at in regard to execution of agreement of sale in favour of defendant No.2, Once the courts below have answered the issue on the basis of oral as well as documentary evidence, I am afraid, it is not open to this Court to re-appreciate that evidence. Otherwise too, even if on facts proved on record two views are possible, the High court in second appeal would not substitute its view with the one taken by the Courts below. Consequently, I am unable to agree with the counsel for the plaintiffs that agreement in favour of defendant No.2 is shrouded by suspicious circumstances.
7. For assailing the issue in regard to suit being barred under Order 2 Rule 2, Code of Civil Procedure, counsel for the plaintiffs referred to judgment of this Court in Bhagwan Kaur v. Harinder Pal Singh, (1992-1)101 P.L.R. 643 and contended that the cause of action in the earlier suit differs from the present suit which is for specific performance of the agreement to sell and therefore, the Courts below ought to have decreed the suit. Order 2 Rule 2, Code of Civil Procedure, reads as under: -
(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) 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) 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.
Order 2 rule 2, Code of Civil Procedure, is based on the principle that the defendant should not be twice vexed for one and the same cause. The rule is directed to prevent splitting of claims and remedies. In Mohammad Khalil Khan and Ors. v. Mahbub Ali Mian and Ors., A.I.R. 1949 P.C. 78, the Privy Council after summarising the case law on the subject laid down the following principles:
(1) The correct test in cases falling under Order 2, Rule 2, is "whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit." (Moonshee Buzloor Ruheem v. Shumsunnissa Begum) (1867-II M.I.A. 551: 2 Sar 159 P.C. (supra).
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Read v. Brown) (1869-22 Q.B.D. 128 : 58 L.J.Q. 120) (supra).
(3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey) (1884-14 Q.B.D. 141 : 53 L.J.Q.B. 476 (supra).
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey) (1884-14 Q.B.D. 141 : 53 L.J.Q.B. 476) (supra).
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers "to the media upon which the plaintiff "asks the Court to arrive at a conclusion in his favour." (Miss. Chand Kaur v. Partap Singh) (15 LA. 156 : 16 Cal. 98 P.C.) (supra). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2), where plaintiff made various claims in the same suit.
In Sidramappa v. Rajashetty and Ors., AIR 1970 S.C. 1059, the Apex Court on reference to Privy Council decision in Mohd. Hafiz v. Mohd. Zakaria, AIR 1922 PC 23, held that the requirement of Order 2 rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. Cause of action is a cause of action 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 wide relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.
8. Applying the aforesaid principle laid down by the Privy Council and the Apex Court, I find that the suit filed by the plaintiffs has rightly been held to be barred under Order 2 Rule 2, Code of Civil Procedure. As per agreement dated 21.12.1984, plaintiffs after paying half of the amount were to get the sale deed qua half of the property executed in their own name by 31.3.1985 and regarding the remaining half, they were to get the sale deed executed by 30.6.1985. It is the case of the plaintiffs themselves that before 31.3.1985, they approached Durga Devi to execute the sale-deed in their favour in respect of half portion of the house, but she demanded a sum of Rs. 5000/- over and above the amount of sale consideration fixed under the agreement. In para 3 of the plaint plaintiffs have stated that they did not agree to the illegal demand of Durga Devi and so, she was informed through telegram dated 27.3.1985 to come to the office of Sub Registrar on 29.3.1985 for execution of the sale-deed in accordance with the terms of the agreement. Further, according to the plaintiffs, Durga Devi did not come present as requested. The first suit for injunction was filed by the plaintiffs on 16.4.1985. In the suit (Ex. D-32) for injunction, in para 7 the plaintiffs had specifically averred that "the plaintiffs have always been ready and willing to perform their part of the contract and are still willing to do so but defendant has failed to perform her part of the contract and is not agreeable to execute the sale-deed as stipulated". In para 8, plaintiffs averred "that the defendant was approached several times but she has finally refused to accede to the reasonable and legal request of the plaintiffs about two days ago. Hence this suit". Again in para 9, plaintiffs averred "that there is no equally efficacious remedy available to the plaintiffs than to file the present suit for permanent injunction. The defendant has threatened to alienate the house in dispute in favour of third parties immediately and in case she succeeds in doing so, irreparable loss would be caused to the plaintiffs and they would be involved in another litigation was well. Money compensation would not afford adequate relief to them. In regard to cause of action, it was averred "that the cause of action arose about 18 days ago, again about two days ago on the final refusal of the defendant". In the suit for injunction filed on 16.4.1985, an application for ad-interim injunction was filed but interim relief was not granted to the plaintiffs. Plaintiffs, on 30.4.1985, filed another suit for permanent injunction for restraining defendant, Durga Devi from alienating the house in dispute. The plaint of the second suit, Ex. D-34, was a verbatim copy of the plaint in the first suit. A reading of the paragraphs of the plaints of the first suit and the second suit, as quoted above, makes it clear that on the day when the suit for injunction was filed, a right had accrued to the plaintiffs to sue for specific performance of the contract on account of breach committed by the defendant in not executing the sale-deed on or before the date fixed in the agreement. Plaintiffs had not been merely apprehending that Durga Devi would sell the house to a third party, but there was a real threat that she would not execute sale-deed in their favour. It is for that matter they averred in their suit that on being approached, she refused to execute the sale-deed in favour of the plaintiffs finally two days before the filing of the suits for injunction. The foundation of the previous two suits for permanent injunction was the agreement to sell dated 21.12.1984 and final refusal by Durga Devi to execute the sale-deed in favour of the plaintiffs. The basis of the suit for specific performance of the contract is again the agreement to sell dated 21.12.1984 and the breach of the agreement committed by Durga Devi. Plaintiffs not only omitted to sue for specific performance of the contract or for recovery of the earnest money/liquidated damages but also did not seek any leave of the Court to sue for such relief afterwards. By filing earlier suits for injunction the plaintiffs had disentitled themselves from filing the suit for specific performance subsequently because the cause of action in both the suits was the same. The judgment in Bhagwan Kaur's case (supra) cited by the counsel for plaintiffs has no application to the facts of the present case; firstly because in the said case, neither such a plea was raised in the written statement nor issue was struck by the trial Court in that regard. Secondly, it could not be shown if the plaintiffs were present on the date when the suit was dismissed and therefore, it could not be ascertained whether the suit was dismissed under Order 9 rule 3, or under Order 9 rule 8, Code of Civil Procedure.
9. Resultantly, the appeal being without any merit shall stand dismissed. There shall be no order as to costs.