Madras High Court
Sri. P.Kumaran vs Sri. V.Ramaswami
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 8TH DAY OF AUGUST 2014 THE HON'BLE Mr. JUSTICE R.S.RAMANATHAN A.NO.3212 OF 2008 IN C.S.NO.121 OF 2007
1.Sri. P.Kumaran, No.1/828, 91/726), Kumaran Street, Padiyanallore, Red Hills, Chennai 600 052
2.Sri P.Chakravarthy, No.1/828 ,91/726), Kumaran Street, Padiyanallore, Red Hills, Chennai 600 052 ...Plaintiffs
-vs-
1. Sri. V.Ramaswami, S/o. Late Veeraswami, No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adayar, Chennai 20
2.Smt. Sarojini Ramaswami, W/o. V.Ramaswami, No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adayar, Chennai 20
3.Mrs. R.Geetha, D/o. V.Ramaswami No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020
4.Mrs. R.Bhamini, D/o. V.Ramaswami No.162/54 Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020
5. Dr. Uma Ramaswami, D/o. V.Ramaswami, No.162/54 Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020 ...Defendants A.NO.3212 OF 2008:
Sri. V.Ramaswami, S/o. Late Veeraswami, No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adayar, Chennai 20 ...Applicant/1st Defendant
-vs-
1.Sri. P.Kumaran, No.1/828, 91/726), Kumaran Street, Padiyanallore, Red Hills, Chennai 600 052
2.Sri P.Chakravarthy, No.1/828 ,91/726), Kumaran Street, Padiyanallore, Red Hills, Chennai 600 052 ...Respondents/Plaintiffs
3.Smt. Sarojini Ramaswami, W/o. V.Ramaswami, No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adayar, Chennai 20
4.Mrs. R.Geetha, D/o. V.Ramaswami No.162/54, Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020
5.Mrs. R.Bhamini, D/o. V.Ramaswami No.162/54 Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020
6. Dr. Uma Ramaswami, D/o. V.Ramaswami, No.162/54 Justice V.Ramaswami Street, Kamaraj Avenue, Adyar, Chennai 600 020 ...Respondents(Defendants 2-4) This Application praying that this Hon'ble Court be pleased to reject the plaint for non-disclosure of cause of action and lack of it.
This Application coming on this day before this court for hearing the court made the following order:
The first defendant in C.S.No.121 of 2007 is the applicant and the Application is filed to reject the plaint for non-disclosure of cause of action and lack of it.
2. The respondents 1 and 2 / plaintiffs filed the suit C.S.No.121 of 2007 for the following reliefs:-
praying for a judgment and decree against the defendants directing the defendants to execute the sale deed conveying the plaint schedule property to the plaintiffs by receiving the balance sale consideration of Rs.5,90,50,000/- (Rs.1,50,000/- per cent for 4.27 acres giving credit to Rs.50,00,000/- received as advance by the defendants) and in the event of the defendants failing to execute the sale deed, the sale deed may be executed by this Hon'ble Court or by any Officer nominated or appointed by this Hon'ble Court and in the event of the decree for specific performance not being granted directing the defendants to pay a sum of Rs.1,30,00,000/- (Rs.50,00,000/-) paid as advance Rs.10,00,000/- received by the first defendant on 1.1.2006, Rs.25,00,000/- received by the first defendant on 29.4.2006 and Rs.45,00,000/- representing the cost of filling up the property with gravel) with 18% interest from the date of suit till payment and a pay a further sum of Rs.1,00,00,000/- as damages for deceit and fraud, and to award the cost of the suit
3. It is seen from the plaint filed by the respondents 1 and 2 that the defendants are the owners of the suit property and the first plaintiff entered into an agreement of sale on 05.02.2005 for purchase of the suit property for a total consideration of Rs.7,00,50,000/- at the rate of Rs.1,50,000/- per cent and though the document of title produced by the applicant showed that the extent is 4.25 cents, the applicant claimed to be in possession of 4.67 cents and on that basis the total consideration was fixed and advance of Rs.50,00,000/- was paid. Thereafter, on 1.1.2006, an agreement of sale was entered into between the first plaintiff and the defendants and the sale consideration was the same as mentioned in the first agreement dated 5.2.2005 and it was agreed that the advance of Rs.50,00,000/- paid under the agreement dated 05.02.2005 would be adjusted towards advance for the second agreement also. It is further stated that the first defendant / applicant also received the sum of Rs.10,00,000/- as consideration for the second agreement of sale though that was not acknowledged in writing. Thereafter, on 29.4.2006, the third agreement was entered into between the second plaintiff and the defendants for sale consideration and it was agreed that the amount of Rs.50,00,000/- paid by the first plaintiff under the first agreement dated 5.2.2005 is to be adjusted towards the advance for the third agreement also. It is further stated that the first defendant / applicant demanded a further sum of Rs.25,00,000/- as consideration for the third agreement dated 29.4.2006 and that was also paid but the same was also not mentioned in the agreement and there was no acknowledgement to that effect. It is further stated that the property on the ground is having only an extent of 4.19 acres against the extent of 4.27 acres mentioned in the sale deed and also against 4.67 acres as claimed by the defendants while entering into the agreement of sale. However, the plaintiffs agreed to a consideration at the rate of Rs.1,50,000/- per cent for the entire extent of 4.27 acres as mentioned in the document of title. On 9.9.2006, the plaintiffs' counsel sent three draft sale deeds for different extents of land and there was no response from the first defendant/applicant. The plaintiffs also met the first applicant and requested him to honour the commitment and execute the sale deed for an extent of 4.27 acres at the rate of Rs.1,50,000/- per cent. The plaintiffs also filled the land with gravel at a cost of Rs.45,00,000/-. On 28.9.2006, the first plaintiff met the first defendant / applicant and requested him to receive the balance sale consideration and execute the sale deeds and the first defendant insisted that part of the sale consideration should be paid by cash and remaining sum by demand draft and the first defendant further demanded a sum of Rs.25,00,000/- and the first defendant agreed to pay a sum of Rs.1.50 per cubic foot towards filling up of gravel by the plaintiffs against the claim of Rs.40,00,000/- by the plaintiffs. On 3.10.2006, the second plaintiff sent a letter to the first defendant requesting him to execute the sale deed. In reply, on 6.10.2006, the second plaintiff received a registered letter dated 1.10.2006 sent by the applicant / first defendant cancelling the agreement of sale and forfeited the advance amount. Therefore, the suit was filed for specific performance of the contract dated 29.4.2006 and in the alternative, other relief was sought for by the plaintiffs and the relief prayed for is stated in the earlier part of this order.
4. The first defendant / applicant filed a written statement and also filed the present Application to reject the plaint. Though the applicant prayed for rejection of the plaint for non-disclosure of cause of action and lack of it, in the affidavit, they contended that the suit is liable to be rejected for misjoinder of parties and the suit is also hit by multifariousness. The other allegations in the affidavit filed in support of the application are not at all necessary for the purpose of the disposal of the Application and therefore, they are not stated herein.
5. In Paragraphs 10,11, and 15 of the affidavit filed in support of the Application, the applicant raised various pleas regarding misjoinder of parties and misjoinder of cause of action and the suit is also hit by multifariousness. It is specifically stated that the suit if filed for specific performance for agreement of sale dated 29.4.2006 entered into between the second plaintiff and the applicant/defendant and the first plaintiff is not a party to the agreement of sale and therefore, the suit is bad for misjoinder of parties. There is no cause of action for the first plaintiff to get himself impleaded in a suit for specific performance of contract entered into between the second plaintiff and the defendants. It is further stated that the suit is also bad for misjoinder of cause of action and the plaintiffs attempted to combine several causes of action that are separate, independent and disjoint. The plaintiffs cannot institute a single suit making a consolidated claim when the causes of action are independent and different. The claim of the first plaintiff is independent of the second plaintiff and combining two different and independent causes of action by two different individuals as against common defendants is not permissible in law. The claim of Rs.45,00,000/- incurred towards the cost of filling up of of the land has nothing to do with the enforcement of agreement of sale and it relates to a totally independent transaction covered by the letter of the first defendant / applicant dated 23.12.2004 and that cannot be prayed as an alternative relief in the suit for specific performance and therefore, on that ground, the suit is bad for misjoinder of causes of action. The claim of Rs.1crore as damages for the deceit and fraud is also a distinct and separate claim and no averments are made in the plaint to sustain that claim and no cause of action was disclosed for claiming the amount of Rs.1 crore on the ground of deceit and fraud and the plaint is silent about the basis or justification for that demand and therefore, the suit is liable to be rejected on the ground that the plaint does not disclose any cause of action.
6. The plaintiffs filed counter affidavit and contended that the plaint cannot be rejected on the alleged ground of misjoinder of cause of action and lack of it. The plaint allegations may be read as part of cause of action and the plea raised in the agreement relates to specific terms of the contract and that can be decided during the trial and therefore, the plaint cannot be rejected.
7. Mr.T.R.Mani, learned Senior Counsel appearing for the applicant submitted that though the Application was filed to reject the plaint on the ground of misjoinder of causes of action and lack of it, having regard to the averments made in the affidavit filed in support of the Application to reject the plaint, the applicant has raised the plea of misjoinder of parties and the misjoinder of cause of action and hit by multifariousness and therefore, on all these grounds, the plaint is liable to rejected. He further submitted that Order VII, Rule 11(a) of the CPC, stipulates that plaint has to be rejected when it does not disclose any cause of action and clauses "b" to "f" deals with various other contingencies. The grounds enumerated under Order VII, Rule 11(a) of the CPC for rejection of plaint are not exhaustive and only illustrative and a plaint can be rejected when the averments prove that it is a clear case of abuse of process of Court. The plaint can also be rejected when it is hit by multifariousness and therefore, the present plaint is liable to be rejected on the ground of misjoinder of causes of action and misjoinder of parties and also on the ground of multifariousness. He submitted that admittedly, the suit was filed to enforce the agreement of sale dated 29.4.2006 entered into between the second respondent/second plaintiff and the applicant / first defendant and respondents 3 to 6. The first plaintiff was not a party to the suit agreement for sale. However, in the prayer, the plaintiffs seek the relief of specific performance by directing the defendants to execute the sale deed to the plaintiffs though the first plaintiff is not entitled to the said relief and therefore, the first plaintiff is not a necessary party to the suit and he has been purposefully made as the first plaintiff and the first plaintiff is neither a necessary or a proper party, and the suit is liable to be dismissed on the ground of misjoinder of parties. He further contended that the plaintiffs claimed a sum of Rs.1crore as damages on the ground of deceit and fraud and no allegation has been made in the plaint to sustain the relief of Rs.1crore as damages on the ground of deceit or fraud and in the absence of any details regarding the fraud or deceit, the plaintiffs are not entitled to claim that amount. He further submitted that the relief for damages in respect of deceit and fraud is based on separate cause of action and even according to the plaint, the second plaintiff is the agreement holder and if at all, any damages were sustained, only the second respondent could have sustained and the first plaintiff cannot claim any damages along with the second plaintiff and therefore, the relief of Rs.1crore as damages on the ground of deceit and fraud cannot be claimed by the first plaintiff and that relief has nothing to do with the main relief of specific performance and the same cannot be asked as an alternative relief and it is based on a separate cause of action and therefore, the plaint is liable to be rejected on the ground of misjoinder of causes of action.
8. The learned Senior Counsel further submitted that the relief of claim of Rs.1,30,00,000/- cannot be considered as an alternative relief in a suit for specific performance having regard to the breakup of the amount stated in the prayer. The learned Senior Counsel submitted that as per the prayer the claim of Rs.1,30,00,000/- comprises of Rs.50,00,000 paid as advance, Rs.10,00,000/- received by the first defendant/applicant on 1.1.2006 and Rs.25,00,000/- received by the first defendant on 29.4.2006 and Rs.45,00,000/- the representing the cost of filling up the property with gravel and admittedly, there is no document in writing for the payment of Rs.10,00,000/- and Rs.25,00,000/-. Admittedly, the agreement dated 01.01.2006 was between the first plaintiff and the defendants and the agreement dated 29.4.2006 was between the second plaintiff and the defendants. While praying for the relief of specific performance, in respect of the agreement dated 29.4.2006 entered into between the second plaintiff and the defendants, the claim for refund of Rs.10,00,000/- alleged to have been paid by the first plaintiff, while executing the agreement dated 01.01.2006 which was subsequently cancelled, cannot be claimed as an alternative relief on the basis of superseded agreement dated 1.1.2006, and therefore, it amounts to misjoinder of cause of action. He further submitted that the claim of Rs.45,00,000/- towards the cost of filling up the suit property with gravel cannot be claimed as an alternative relief. Even according to the plaint allegation, after the suit agreement was entered into, the first plaintiff filled up the land with the gravel at a cost of Rs.45,00,000/-. In Paragraph 21 of the plaint, it is stated that the first plaintiff told the first defendant/applicant herein that he has spent a sum of Rs.40,00,000/- in filling up the land with gravel. The first defendant/applicant herein agreed to pay a sum Rs.1.50 per cubic foot towards filling up the land with gravel and therefore, the claim of Rs.45,00,000/- towards the cost of filling up the land with gravel is based on a separate cause of action and it has nothing to do with the suit for specific performance and therefore, the claim for Rs.45,00,000/- towards the cost of filling up the land with gravel cannot be clubbed with the present suit for specific performance and on that ground also the suit is bad for misjoinder of causes of action. He therefore submitted the plaint is liable to be rejected on the ground of misjoinder of causes of action and misjoinder of parties and also the plaint is hit by multifariousness and therefore, the plaint is liable to be rejected.
9. In support of his contention, the learned Senior Counsel appearing for the applicant relied on the following judgments :-
1. Appa Rao v. Secretary of State [A.I.R.1935 Madras 389]
2. Bishundeo Narain & another v. Seogeni Rai & others [A.I.R.(38) 1951 Supreme Court 280]
3. Nithayya Thevar v. Subramanian Ambalakarar [1970 (1) MLJ 400]
4. T.Arivandandam v. T.V.Satyapal and another [AIR 1977 SUPREME COURT 2421]
5.Muddada Chayanna v. G.Veerabhadrarao and others [AIR 1979 ANDRHA PRADESH 253]
6.Sivananda Roy v. Janaki Ballav Pattnaik and others [AIR 1985 ORISSA 197 (1)]
7.Azar Hussain v. Rajiv Gandhi [AIR 1986 SUPREME COURT 1253]
8. Sanjay Kaushish v. D.C.Kaushish and others [AIR 1992 DELHI 118(1)]
9.Mallikarjunaiah v. H.C.Gowramma [AIR 1997 KARNATAKA 77]
10.I.T.C.Limited v. Debts Recovery Appellate Tribunal and others [1998 AIR SCW 237]
11.Rajasthan High Court Advocates Association v. Union of India And others [AIR 2001 SUPREME COURT 416]
12.Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi and others [(2005) 5 Supreme Court Cases 46]
13. Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others [AIR 2005 SUPREME COURT 2392]
14.Wipro Limited and another v. Oushadha Chandrika Ayurvedic India (P) Ltd and others [AIR 2008 MADRAS 165 (DB)]
15.M.Raja Appar & Ors. v. M.Gnanasambandam (deceased by L.Rs.)[AIR 2009 MADRAS 159]
10. Mr.V.Raghavachari, learned counsel appearing for the third respondent also supported the contention of the learned Senior Counsel and submitted that the suit is bad for misjoinder of parties and misjoinder of causes of action and therefore, the plaint is liable to be rejected on the ground of multifariousness. He submitted that there is no basis for claiming the relief of Rs.1 crore as damages on the ground of deceit and fraud and even assuming that the plaintiffs are entitled to claim that amount, it is a separate cause of action and that cannot be clubbed along with the suit for specific performance and there are no averments in the plaint or in the documents filed along with the plaint to sustain the claim of damages of Rs.1 crore on the ground of deceit and fraud. Similarly, the claim of Rs.45,00,000/- for filling up land with gravel is also a different cause of action and it has nothing to do with the relief for specific performance and therefore, the plaint is liable to be dismissed on the ground of misjoinder of cause of action, misjoinder of parties. Admittedly, the first plaintiff is not a party to an agreement of sale which is the subject matter of the suit and therefore, he cannot claim any relief of damages and there is no common question of law or fact between the first plaintiff and the defendants and admittedly, the agreement of sale entered into between the first plaintiff and the defendants on 5.2.2005 and on 1.1.2006 were superseded and the suit agreement dated 29.4.2006 was entered into between the second plaintiff and the defendants and therefore, there is no common link or nexus between the first plaintiff and the applicant and the relief sought for in the suit is in respect of damages and therefore, the suit is bad for multifariousness and on that ground, the plaint is liable to be dismissed. The learned counsel relied upon the following judgments in support of his contention:
1. Jaswantrai Jethalal Vaidya v. Vimal [MANU/GJ/0071/1963 = AIR 1963 GUJ 152]
2. Babu Lal v. M/s.Hazari Lal Kishori Lal [AIR 1982 SUPREME COURT 818]
3. Ram Bahadur Thakur (P) Ltd., v. A.Velliangiri and 3 others [1989-2-L.W.133]
4.Rafiuddin Nuruddin Musalman v. Abduyl Karim Abdul Reheman and Ors. [2005(4) MhLj 646]
5.Sm.Nagendra Bala Debi and others v. Provash Chandra and others [AIR 1953 Calcutta 185]
6.Lobsang Khampa and others v. Sunam Ram [AIR 1977 Himachal Pradesh 23]
7. Sri Shanmuga Rajeswara Sethupathi, Raja of Ramnad v. State of Madras represented by the Revenue Secretary to the State of Madras [AIR 1957 MADRAS 570]
8.Rama Rao and another v. Bashu Khan Saheb and two others [1998 (II) CTC 363]
11. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the respondents 4 to 6 also argued on the same line as that of the learned Senior Counsel Mr.T.R.Mani, and the learned Senior Counsel Mr.Rajagoapalan, reiterated the very same points to reject the plaint.
12. Mr.V.Selvaraj, learned counsel appearing for the respondents 1 & 2 / plaintiffs, submitted that as per the provisions of Order I, Rule 9 CPC, the suit cannot be defeated by reason of misjoinder or non-joinder of parties and a suit can be rejected only on the ground of non-joinder or misjoinder of necessary parties. Therefore, the plaint is not liable to be rejected on the ground that the first plaintiff has been impleaded in the suit and there is no privity of contract between the first plaintiff and the defendants and the plaint is therefore liable to be rejected on the ground of misjoinder of the first plaintiff in the suit for specific performance of an agreement of sale entered into between the second plaintiff. He further submitted that a person to be impleaded as a party need not be a necessary party and a proper party can also be impleaded in a suit and, according to the plaint allegations, the first and the send agreements of sale dated 5.2.2005 and 1.1.2006 were entered into between the first plaintiff and the defendants and a sum of Rs.50,00,000/- paid under the first agreement of sale was agreed to be adjusted towards the sale consideration and agreed to be treated as advance for the suit agreement dated 29.4.2006. Therefore, the first plaintiff is a proper party to the suit proceedings. He further submitted that as per the agreement for sale dated 29.4.2006, the defendants agreed to convey the suit property in favour of the purchaser, namely, the second plaintiff or his nominee/s. Therefore, having regard to the terms of agreement, the defendants are liable to execute the sale deed either in favour of the second plaintiff or his nominee/s and it is stated in Paragraph 3 of the plaint that the plaintiffs are brothers and the plaintiffs are jointly doing real estate business with their father and even though the suit agreement of sale was between the second plaintiff and the defendants, the first plaintiff also joined negotiation and the amount paid by the first plaintiff under two earlier agreements of sale, namely, Rs.50,00,000/- was adjusted towards the sale consideration under the suit agreement of sale and therefore, the first plaintiff can be considered as a proper party. Therefore, it cannot be stated that the suit is bad for misjoinder of parties. He further submitted that as per Order II, Rule 2 CPC, every suit shall include the whole of the claim which the plaint is entitled to make in respect of cause of action, and Order II, Rule 3 provides that a plaintiff may unite in the same suit several causes of action against the same defedant or the same defendants jointly and plaintiffs having cause of action in which they are jointly interested against the same defendants may unite such cause of action in the same suit. He therefore contended that having regard to the allegations made in the plaint that the first plaintiff and the second plaintiff are doing real estate business with their father and earlier two agreements have been executed between the first plaintiff and the defendants and the advance paid under the earlier two agreements was adjusted for the suit agreement for sale and the defendants agreed to execute sale deed in favour of the second plaintiff or his nominee/s and an amount of Rs.10,00,000/- was paid under the second agreement dated 1.1.2006 and Rs.25,00,000/- was paid under the third agreement which was acknowledged by him and therefore, the first plaintiff has also got cause of action against the defendants and therefore, it cannot be contended that the suit is bad for the misjoinder of parties. He also contended that the suit is also not bad for misjoinder of causes of action and the relief of damages of Rs.1crore on the ground of deceit and fraud is an ancillary relief to the main relief of specific performance and Rs.1crore was claimed as damages on the ground of deceit and fraud committed in not executing the sale deed by practising fraud and cancelling the agreement. Similarly, a sum of Rs.1,30,00,000/- was also claimed as alternative relief when the Court is unable to grant the relief for specific performance. By way of alternative relief, the plaintiffs have only claimed the amount paid under the agreements of sale and also the amount incurred by them in developing the property believing that they would get the property by purchasing and therefore, the alternative claim of Rs.1,30,00,000 /- cannot be said to be arising under a different cause of action. In the suit for specific performance, the plaintiff is entitled to seek alternative relief of damages, namely, return of the advance amount and the amount incurred by them in developing the property after agreement of sale was entered into. Therefore, the said relief cannot be stated to be a different cause of action. He therefore, submitted that the contention of the defendants that the plaint is liable to be rejected on the ground of misjoinder of parties, misjoinder of cause of action and the suit is bad for multifariousness cannot be sustained as the plaintiffs have stated their case in detail and at this stage, the plaint cannot be rejected on the ground of misjoinder of parties and misjoinder of causes of action and therefore, the application is liable to be dismissed.
13. In support of his contention, the learned counsel relied upon the following judgments:-
1. Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter Colelge and others [ AIR 1987 SUPREME COURT 1242 (1)]
2.M/s.Raptakos Brett and Co.Ltd., v. Ganesh Property [AIR 1998 SUPREME COURT 3085]
3. Assembly of God Church v. Ivan Kapper and another [2004 A I H C 2450]
14. Before discussing the arguments of both sides, it is proper to appreciate the pleadings, namely, the plaint allegations and the allegation made in the affidavit filed in support of the application to consider the relief sought for. As stated supra, the suit is filed for specific performance of agreement for sale dated 29.4.2006 entered into between the second plaintiff and the defendants. It is also stated in the plaint that the plaintiffs are doing real estate business along with their father and the first plaintiff entered into an agreement of sale on 5.2.2005 and 1.1.2006 with the defendants for purchase of the suit property and paid a sum of Rs.50,00,000/- as advance for first agreement of sale dated 5.2.2005 and while cancelling the first agreement of sale dated 5.2.2005, the sum of Rs.50,00,000/- paid as advance was agreed to be adjusted as advance for the second agreement of sale dated 1.1.2006 and the second agreement of sale was also cancelled and the third agreement of sale dated 29.4.2006, the suit agreement, was entered into and the sum of Rs.50,00,000/- paid in the first agreement of sale was agreed to be retained as advance. The suit agreement dated 29.4.2006 clearly states that the defendants agreed to execute the sale deed after receipt of consideration in favour of the purchaser, namely, the second plaintiff or his nominee/s. Therefore, the defendants agreed to execute the sale deed in favour of the purchaser or his nominee/s. Therefore, there is nothing wrong in joining the first plaintiff in the suit and praying for decree and specific performance in favour of the plaintiffs as the first plaintiff will also come under the phrase of nominee/s and therefore, the contention of the learned Senior Counsel for the applicant that the first plaintiff cannot be allowed to join in a suit for specific performance of agreement for sale between the second plaintiff and the defendants and the plaintiffs are not jointly entitled to the relief of specific performance cannot be accepted.
15. Further, under Order I, Rule 1 CPC, all persons may be joined in one suit as plaintiff where any right to relief in respect of the same act or transaction or series of acts or transaction is alleged to exist in such persons, whether jointly, severally or in the alternative; and if such persons brought separate suits, any common question of law or fact would arise. Further, as per Order I, Rule 4 CPC, judgment may be given without any amendment for such one more of plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to. Therefore, considering Order I, Rule 4, even though, the first plaintiff was joined in the array of parties as plaintiff, even accepting the case of the defendants that there is no privity of contract between the first plaintiff and the defendants and the defendants are not bound to execute any sale deed in favour of the first plaintiff and therefore, the prayer sought for directing the defendants to execute the sale deed in favour of the plaintiff is not sustainable, the Court is at liberty to grant relief of specific performance in favour of the second plaintiff alone. Considering Order I, Rule 9 CPC that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, the argument of the learned Senior Counsel for the applicant and the learned counsel appearing for the respondents 3 to 6 that the first plaintiff is not a necessary party or property party to be impleaded in the suit and the suit is bad for misjoinder of parties for having impleaded the first plaintiff and therefore, the plaint is liable to be rejected on that ground, cannot be accepted and the same is liable to be rejected.
16. Further, as per Order I, Rule 1 CPC all persons may be joined in one suit as plaintiffs where any right to relief in respect of the same act or transaction or series acts or transactions is alleged to exist in such persons whether jointly, severally or in the alternative and if such persons brought separate suits, any common question of law or fact would arise. In this case also, the relief in relation to damages is arising out of the series of acts or transactions between the plaintiffs and the defendants and according to the plaint allegations while executing the second agreement for sale a sum of Rs.10,00,000 was paid but there was nothing in writing and the second agreement of sale was also superseded and the third agreement of sale was executed, and therefore, the relief of damages for Rs.10,00,000/- under the agreement for sale dated 1.1.2006 and Rs.25,00,000 paid under the agreement for sale dated 29.4.2006, form part of same series of transactions between the plaintiffs and the defendants and a common question of law would arise and therefore, the plaintiffs are justified in clubbing those said relief for damages in the same suit.
17. Further, as per Order II, Rule 2 CPC, every suit shall include the whole of the claim if the plaintiff is entitled to make in respect of the cause of action and as per Order II, Rule 3 CPC, the plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or same defendants jointly unite such causes of action in the same suit. Therefore, Order II, Rule 3 CPC clubbing of causes of action by the plaintiff against the same defendants or same defendants jointly and in a case where the plaintiffs having cause of action in which they are jointly interested against the same defendants or same defendants jointly, they can file a single suit in respect of those causes of action. Though the first plaintiff was a party to the first and second agreements which were superseded and the second plaintiff was a party to the third agreement which is the subject matter of the suit, it is the case of the plaintiffs that the amount paid under the agreement of sale dated 1.1.2006, namely, Rs.10,00,000/-, paid by the first plaintiff and another sum Rs.25,00,000/- paid by the second plaintiff on 20.4.2006 were to be adjusted towards total sale consideration in respect of the suit agreement. Therefore, the plaintiffs have got a joint claim against the defendants and admittedly, the suit is filed by the plaintiffs for the relief of specific performance to execute the sale deed in their favour and therefore, the plaintiffs are jointly interested in adjusting the said amount towards the sale consideration and therefore, in the event of denying the relief of specific performance, the plaintiffs are entitled to claim that amount against the same defendants and therefore, it cannot be contended that the suit is bad for misjoinder of causes of action in relation to the claim of Rs.10,00,000 and Rs.25,00,000 claimed damages as alternative relief.
18. Further, as per the order II, Rule 4 (b) CPC, claims for damages for breach of any contract under which the property or any contract is held may be joined in a suit. Further, under Order II, Rule 6 CPC, where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as my be expedient in the interest of justice. Therefore, the suit cannot be rejected on the ground of misjoinder of cause of action and the Court has got power to order separate trials by exercising power under Order II, Rule 6 CPC. Therefore, even if the arguments of the learned Senior Counsel for the applicant and the learned counsel appearing for the respondents 3 to 6 are to be accepted that different and unconnected causes of action are clubbed in one suit and therefore, the suit is bad for misjoinder of causes of action, having regard to provision of Order II, Rule 6 CPC, the Court has got power to order separate trial and on that ground suit cannot be rejected. However, having regard to the reasons stated above, in my opinion, there is no misjoinder of cause of action. Having regard to the provisions of Order II, Rule 2, 3 and 6 CPC, even assuming that the first plaintiff has got separate cause of action and the second respondent has got separate cause of action against the defendants, as contended by the learned Senior Counsel appearing for the applicant and the learned counsel appearing for respondents 3 to 6, such cause of action can be joined, considering the fact that both the plaintiffs are jointly interested in such cause of action and therefore, the plaint cannot be rejected on that ground.
19. The main contention of the learned Senior Counsel appearing for the applicant, Mr.T.R.Mani, to sustain his contention that the suit is bad for misjoinder of causes of action is in relation to the claim for damages of Rs.1crore on the ground of deceit and fraud. The learned Senior Counsel contended that there is no allegation in the plaint regarding the manner in which deceit and fraud were practised upon by the defendants over the plaintiffs and as a matter of fact, no allegation has been made and in the absence of any claim, Rs.1 crore as damages cannot be sustained. According to me, if there is no allegation to substantiate the claim of damages of Rs.1 crore on the ground of deceit and fraud, the Court can refuse to grant the relief and that cannot be a ground for rejecting the plaint. The other contention of the learned Senior Counsel is that the relief of damages of Rs.1crore on the ground of deceit and fraud cannot be considered as an alternative relief or ancillary relief in a suit for specific performance and therefore, the suit is bad for misjoinder of cause of action and therefore is liable to be rejected. According to me, the relief of damages of Rs.1crore is an ancillary relief to the relief of specific performance having regard to the allegations made in the plaint that the defendants unjustifiably cancelled the agreement for sale dated 29.4.2006 and refused to execute the agreement of sale deed. Hence, it cannot be contended that the relief is based on different cause of action. Even assuming that it is based on different cause of action as contended by the learned Senior Counsel, having regard to the provisions of Order II, Rule 2 CPC, clubbing of such joint cause of action is permissible and even if the Court comes to the conclusion that such cause of action will embarrass, the Court can direct separate trials and that is not a ground to reject the plaint.
20. In T. Arivandandam vs T. V. Satyapal & Another [ AIR 1977 SUPREME COURT 2421), it is held that if on a meaningful-nor formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order VII Rule 11, C.P.C.
21. In Wipro Limited and another v. Oushadha Chandrika Ayurvedic India (P) Ltd., and Others [AIR 2008 MADRS 165 (DB)], it is held that only the averments made in the plaint should be taken into consideration to reject the plaint on any ground and the pleas taken by the defendant in the written statement should not be considered at that stage.
22. In Azhar Hussain vs Rajiv Gandhi AIR 1986 SUPREME COURT 1253, it has been held that even in an ordinary Civil litigation the Court can reject a plaint if it does not disclose any cause of action.
23. Cause of action has been discussed in the judgment rendered in Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others [AIR 2005 SUPREME COURT 2392] in the following Paragraphs 24 to 27 :-
24.Osborn's Concise Law Dictionary defines 'cause of action' as the fact or combination of facts which give rise to a right or action.
25.In Black's Law Dictionary it has been stated that the expression cause of action is the fact or facts which give a person a right to judicial relief.
26. In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of facts that give rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.
27. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.
24. In Rajasthan High Court Advocates Association v. Union of India and others [AIR 2001 SUPREME COURT 416], cause of action has been discussed in Paragraph 17 as follows:-
The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in cause of action. It has to be left to be determined in each individual case as to where the cause of action arises...
25. Bearing in mind the principles laid down by the Hon'ble Supreme Court with regard to cause of action, in my opinion, the plaint discloses cause of action for the relief of specific performance. Even though the applicant filed this Application to reject the plaint on the ground that it does not disclose any cause of action, it was argued by the learned Senior Counsel for the applicant as well as the learned counsel for the third respondent that the suit is bad for misjoinder of cause of action and the two arguments cannot go together. Either the suit must fail for non-disclosure of any cause of action or on the ground of misjoinder of cause of action. Therefore, when it is alleged that the suit is bad for misjoinder of causes of action, indirectly, the applicant as well as the third respondent admit that there are causes of action but those causes of action cannot be joined in a suit and therefore, the suit is liable to be rejected on the ground of misjoinder of causes of action.
26. It is also contended by the learned Senior Counsel that the suit is also bad for misjoinder of parties and the applicant has no cause of action for filing the suit for specific performance and the relief is sought in favour of the plaintiff, also using the word plaintiffs in the prayer. Therefore, the plaint is liable to be rejected as stated supra. As per the agreement of sale, the vendors, namely, defendants, agreed to execute the sale deed in favour of the purchaser or his nominee/s. Therefore, when the second plaintiff wants the sale deed to be executed in favour of himself and the first plaintiff, it cannot be questioned and the vendors are bound to execute the sale deed if the second plaintiff is entitled to succeed in the suit. Further, a suit cannot be defeated on the ground of misjoinder of parties or misjoinder of causes of action. In this connection, it is pertinent to refer to the judgment reported in 1992 (2) SCC 524 in the matter of Ramesh Hirachand Kundammal v. Municipal Corporation of greater Bombay:-
14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., 1956(1) All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated :-
"The test is `May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."
Further, in the judgment reported in 1992 (2) SCC 524 in the matter of Ramesh Hirachand Kundammal v. Municipal Corporation of greater Bombay, it is held as follows:-
We also note the fact that the Applications have been filed by Respondents 7 to 12 only to delete their names and not to dismiss the suit. Further, more, the question as to whether a party is necessary or proper will have to be decided on the materials produced at the time of deciding the Suit and not otherwise. More over, such a procedural irregularity would not have the effect of wiping out the entire Suit as contended by the learned Senior Counsel appearing for Respondents 7 to 12. It is use to reproduce the following passage of Allsop, J., rendered in Ratan Sen alias Ratan Lal v. Suraj Bhan and others, AIR (31) 1844 A11. 1:
Even if there was a misjoinder of parties or causes of action that would not justify any interference with the decree in Appeal. The question, however, remains whether there was any misjoinder. All persons may be joined as defendants against whom any right to relief arising out of the same act is alleged to exist (Order 1, Rule 3). It seems to me that a relief is claimed against any person who is interested in denying the right to be relief.
27. As regards the plea of fraud and damages claimed on the ground of fraud and deceit, it is the contention of the learned Senior Counsel appearing for the applicant that in the absence of any specific allegations regarding fraud and deceit or coercion, the plaint is liable to be rejected on that ground. The learned Senior Counsel relied upon the judgment reported in A.I.R (38) 1951 Supreme Court 280 in the matter of Bishundeo Narain and another v. Seogeni Rai & others and AIR 1998 AIR SCW 237 in the matter of I.T.C.Limited vs. Debts Recovery Appellate Tribunal and others in support of his contention.
28. In this connection, it is relevant to rely upon the judgment reported in AIR 1987 SUPREME COURT 1242(1) in the matter of Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College and others relied upon by the learned counsel for the respondents 1 and 2. In that judgment, it is held as follows:-
It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair split- ting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. (italics supplied)
29. In the judgment reported in AIR 1998 SUPREME COURT 3085 in the matter of M/s.Raptakos Brett and Co.Ltd., v. Ganesh Property, it has been held that pleadings in the plaint should be read as a whole and on a conjoint reading of Paragraphs of the plaint if the cause of action can be culled out, the plaint cannot be rejected on the ground that it does not disclose any cause of action. Therefore, we will have to find out from the reading of the entire plaint whether the plaintiffs have made out a case of fraud and deceit and even though the exact word of fraud and deceit are not used if a conjoint reading of the plaint would disclose that fraud has been committed or fraud has been pleaded then the suit cannot be rejected on that ground.
30. It is stated that the extent of the suit property is mentioned as 4.27 acres in the document of title and it was claimed by the defendants that the actual extent of the property was 4.67 acres and when the plaintiff measured the property, the extent was found to be 4.19 acres. It is further stated in Paragraph 17 of plaint that the first defendant was attempting to create documents to resile from the agreement. In Paragraph 21, it is alleged that the first defendant obtained receipts from the plaintiff as if he had paid for filling up the suit schedule property with gravel. When admittedly, the plaintiffs did the job of spending more than Rs.40,00,000/- and when the plaintiffs demanded the defendants to execute the sale deed, the defendants sent a letter cancelling the agreement and therefore, it is stated in Paragraph 24 that the first defendant was not fair and was acting deceitfully. Whether the allegations are true and would satisfy the ingredients of fraud and deceit have to be decided during trial and at this stage, I cannot decide on that issue. Further, even assuming that there is no allegation of fraud or deceit as submitted by the learned Senior Counsel for the applicant, it is settled law that a suit cannot be rejected in part. Therefore, the contention of the learned Senior Counsel for the applicant that the plaint does not disclose any cause of action or pliant is liable to be rejected for misjoinder of parties or misjoinder of causes of action and also on the ground of multifariousness cannot be accepted.
31. Though the learned counsel appearing for the third respondent advanced elaborate arguments stating that there was misjoinder of causes of action and also relied upon the judgments as stated supra, admittedly, the third respondent has not filed any counter. Nevertheless, his arguments were taken into consideration. For the reasons stated above, in my opinion, the plaint cannot be rejected on the ground of misjoinder of causes of action even assuming that there are misjoinder of causes of action as alleged by the counsel for the third respondent.
32. In the result, I do not find any merit in the submission of the learned Senior Counsel appearing for the applicant and the learned counsel for the third respondent and therefore, the Application is dismissed. No order as to costs.
sd/.R.S.R.J
08.08.2014
//Certified to be a true copy//
Dated this the day of 2014.
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From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.