Punjab-Haryana High Court
Harbans Singh And Ors. vs Mohinder Singh And Ors. on 11 March, 2003
Equivalent citations: (2003)135PLR330, AIR 2003 PUNJAB AND HARYANA 294, (2003) 3 RECCIVR 127, (2003) 4 ICC 269, (2003) 3 CIVILCOURTC 365, (2003) 3 PUN LR 330, (2004) 1 CIVLJ 55
JUDGMENT M.M. Kumar, J.
1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the "Code") challenges judgment and decree dated 20.9.2002 passed by the learned Additional District Judge Amritsar affirming the findings of fact recorded by the Civil Judge (Senior Division), Amritsar in his judgment and decree dated 23.8.1997. The Vendees of the suit land namely defendant-appellants Harbans Singh and others have felt aggrieved by the judgment and decree. Both the Courts below have held the plaintiff-respondent-1 Mohinder Singh is entitled to a decree for possession of specific performance of agreement to sell dated 12.5.1985 that was entered into by defendant-respondents 2 and 3 through their General Power of Attorney defendant-respondent-4 in respect of the suit land. According to the aforementioned contract, defendant-respondents 2 and 3 through their General Power of Attorney had agreed to sell the suit land measuring 44 kanals 1 marla at the rate of Rs. 18,0007/-per acre and Rs.22,000/- was received by them as earnest money. A direction has also been issued to defendant-respondents 2 to 4 to execute the sale deed as per the terms of the agreement to sell dated 12.5.1985 and on their failure to do so, it has to be executed by the Court through its official as per terms of the agreement to sell. Both the courts below have concurrently found that the execution of the agreement to sell dated 12.5.1985 Ex.Pl has been proved on record as the signatures of Piara Singh on the agreement to sell as well as his sample-signatures taken in the court on 11.6.1987 have been proved to be of one and the same person.The plea of forgery has been rejected. It has further been found that the plaintiff-respondent-1 has always been ready and willing to perform his part of the contract. It has also been concurrently found that the plaintiff-respondent-1 alongwith his brother Paramjit Singh and Narender Pal Singh visited the village of defendant-respondents 2 and 3 as well as of defendant-respondent-4 to get the sale deed executed. But they did not execute the sale deed. The plaintiff-respondent-1 also filed an application before the Sub-Registrar on the last date fixed for execution of the sale deed, but defendant-respondents 2 to 4 did not turn up. It has also been held that filing of suit by the plaintiff-respondent-1 against defendant-respondents 2 to 4 for permanent injunction restraining them from alienating the suit property in favour of the defendant-appellants would itself be ample proof of the fact that the plaintiff-respon-dent-1 has always been willing and ready to perform his part of the contract.
2. On the question as to whether the defendant-appellants are the bona fide purchasers of the suit property, it has been concurrently found by both the courts below that they were fully aware of the agreement to sell between the plaintiff-respondent-1 and defendant-respondents 2 to 4 and no benefit of Section 19(b) of the Specific Relief Act, 1963 could be extended to the defendant-appellants. In this regard, the views of the Lower Appellate Court read as under:
"In the sale deeds, a reference has been made to the agreement da' 1 10.12.1985 and the receipt dated 31.1.1986 but both the documents have been with-held by the defendants.In fact, no such document ever existed but the same have been referred to authenticate the sale deeds. If these documents existed, then there was no reason to withhold those documents. Even otherwise, the agreement dated 12.5.1985 in favour of the plaintiff is prior to that agreement. In view of the above discussed evidence, it is clear that after the execution of the agreement, when the plaintiff came to know that defendant No. 1 to 3 started negotiation to sell the property in favour of defendant Nos.4 to 8 he moved an application before the Sub Registrar about the stay order granted by the Court of Sh. Dhian Singh, Additional Senior Sub Judge, Amritsar, to alienate the suit property and it seems that the defendant Nos. 4 to 8 in connivance with the concerned Clerk did not put those papers before the Sub-Registrar and got the sale deeds executed from the Sub Registrar, Even otherwise, no enquiry was made by the defendant Nos.4 to 8 from the office of Sub Registrar where intimation was given by the plaintiff before the sale deeds in favour of defendant Nos4 to 8 from the residents of the village. It is a small village and the residents of the village had the knowledge about the agreement in question in favour of the plaintiff,, whereas no witness has been examined by the defendants to contradict this plea. No enquiry was made from the person who was in possession of part of the suit property. In these circumstance, I am of the opinion, that the learned trial Court has rightly reached to the conclusion that defendant Nos.4 to 8 had knowledge about the agreement in question in favour of the plaintiff, but despite that they got the sale deeds executed from defendant No. 3, attorney of dependents Nos. l and No. 2 in their favour. In these circumstances, they cannot be said to be bona fide purchasers for consideration in good faith and without notice of prior agreement in favour of the plaintiff and, accordingly, the findings given on this issue by the learned trial Court are hereby affirmed."
3. Mr. Anil Chawla, learned counsel for the defendant-appellants has argued that the plaintiff-respondent No. l could not have filed the suit from which the instant appeal has arisen i.e. Civil Suit No.263 dated 28.4.1987 because the plaintiff-respondent No. l had already filed another Civil Suit on 30.1.1986 for permanent injunction restraining defendant-respondents No.2 to 4 from alienating the suit property to the defendant-appellants. According to the learned counsel the bar envisaged by Order 2 Rule 2 of "the Code" would be attracted to the filing of subsequent suit seeking specific performance of the agreement. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of Delhi High Court in the case Kamal Kishore Saboo v. Kamal Hassan Khan, 2001(3) Civil Court Cases 132. The learned counsel has also argued that the relief claimed in the suit filed earlier for permanent injunction should be deemed to have included the relief of specific performance of the agreement which is the relief claimed in the civil suit from which the instant appeal has arisen. Another argument raised by the learned counsel is that the plaintiff-respondent himself is not sure of whether he wishes to get actual possession of the suit property or only a formal possession.
4. I have thoughtfully considered the submission made by the learned counsel based on Order 2 Rule 2 of "the Code" read with Explanation-IV of Section 11 of "the Code" and am of the view that the arguments are misconceived. The appeal is devoid of merit and is liable to be dismissed. The learned Additional District Judge has held that the relief claimed in both the suits is entirely different and, therefore, the bar created by Order 2 Rule 2 would not be attracted to the facts of the present case. It has also been held that no such plea was taken in the written statement filed by the defendant-appellant, nor the pleadings of the previous suit have been placed on record, ft is evident that the earlier suit filed on 30.1.1986 was not based on the cause of action of specific performance because such a relief had not been available to the plaintiff-respondent No. l. The date of execution of the sale deed agreed between the plaintiff-respondent No. l and defendant-respondents 2 to 4 in the agreement to sell Ex.Pl was 12.2.1986 as has been pointed out by the trial Court in the opening para of its judgment. Therefore, on 30.1.1986, the cause of action for filing the suit for specific performance of the contract was not available because the sale deed still could have been executed on 12.2.1986.
5. Even otherwise, it is well settled that unless there is specific plea to raise an objection with regard to the bar created by Order 2 Rule 2 of "the Code" and the proceedings of the first suit are produced in evidence, such a plea cannot be raised before the Appellate Court. A constitution Bench of the Supreme Court in Gurbax Singh v. Bhooralal, A.I.R. 1964 S.C. 1810 has laid down that such a plea should be specifically raised and proved. The observations of their Lordships read as under:-
"In order that a plea of a bar under Order 2, Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in Section 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2, Rule 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lucuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar under Order.2, Rule 2, Civil Procedure Code was not maintainable."
The aforementioned observations of the Constitution Bench have been approved by the Supreme Court in the case of M/s Bengal Water Proof Ltd. v, M/s Bombay Waterproof Mfg. Co., A.I.R. 1997 S.C. 1398.
6. The plea of bar to the filing of the suit for specific performance cannot be sustained as on 31.1.1986, when the plaintiff-respondents filed a suit for permanent injunction, the relief of specific performance of the agreement dated 12.5.1985 was not available to the plaintiff-respondent No. 1 because the last date for execution of the sale deed fixed in the agreement was 12.2.1986. It is this aspect of the case which clearly distinguishes the Division Bench judgment of the Delhi High Court in the case of Kamal Kishore Saboo's case (supra). In that case, when the suit for permanent injunction was filed, the cause of. action for specific performance of the agreement had already arisen and moreover, there was no plea of absence of pleadings on Order 2 Rule 2 of "the Code". Therefore, no benefit can be derived from the Division Bench judgment of Delhi High Court in Kamal Kishore Saboo's case (supra).
7. The other argument that the plaintiff-respondent is not sure of his actual or formal possession, would not require any serious consideration in view of the fact that the suit filed by the plaintiff-respondent No.l is comprehensive. Moreover, no such argument has been raised before the Courts below. It cannot, for the first time, be raised before this Court while arguing the appeal under Section 100 "the Code". Therefore, there is no substance in this argument and the same is liable to be rejected.
8. The findings of facts recorded by the Court below would not warrant any interference even if another view is possible on re-appreciation of evidence. No substantive question of law has been raised which would require admission of the instant appeal. Therefore, the appeal is devoid of any merit and is thus liable to be dismissed.
For the reasons recorded above, this appeal fails and the same is dismissed.