Punjab-Haryana High Court
Surjeet Kumar vs Anil Kumar on 8 July, 1997
Equivalent citations: (1997)117PLR636
JUDGMENT V.K. Jhanji, J.
1. This second appeal by the plaintiff has arisen out of the suit filed by him for recovery of Rs. three lacs. Both the Courts below have dismissed the suit of the plaintiff.
2. It is the case of plaintiff that respondent No. 1, namely, Anil Kumar came to him in the first week of April, 1990 and told him that he is exclusive owner in possession of land measuring 40 Killas and is badly in need of money and as such, he wants to dispose of the same at the earliest. Plaintiff alleged that keeping in view the assurance given by respondent No. 1, he agreed to purchase the same and the bargain was struck between him and respondent No. 1 and accordingly, a sum of Rs. 1,50,000/- was paid towards earnest money. It is further his case that respondent No. 1 never disclosed that he is not the exclusive owner but he is owner along with respondents 2 and 3. Plaintiff further alleged that he was always ready and willing to abide by the terms of the agreement to sell, but the respondents failed to execute the sale-deed, In order to recover the earnest money and damages, the present suit was filed by the plaintiff for recovery of Rs. three lacs, i.e. Rs. 1,50,000/- paid as eanest money and Rs. 1,50,000/- as liquidated damages. Respondents on notice of the suit raised various objections, including the one that plaintiff was never ready and willing to perform his part of the agreement. Respondent No. 1 also stated that respondents 2 and 3 had authorised respondent No. 1 to enter into agreement in question and respondents 2 and 3 had always owned the agreement executed by respondent No. 1 on their behalf. Another objection taken by the respondents was that the suit was barred under Order 2 Rule 2, Code of Civil Procedure. Both the Courts below have dismissed the suit on finding that the plaintiff was never ready and willing to perform his part of the agreement and that the suit is also barred under Order 2 Rule 2, Code of Civil Procedure.
3. In this second appeal, it has been contended by the counsel for appellant that the finding of the Courts below in regard to plaintiff being not ready and willing to perform his part of the agreement is erroneous, He also contended that the suit previously filed by the appellant was for injunction as the plaintiff apprehended that respondents were out to sell the property to some other person other than the plaintiff and therefore, cause of action in that suit being different than the one in the present file, the finding that the suit is barred under Order 2 Rule 2, Code of Civil Procedure, is also erroneous.
4. After hearing the counsel and on going through the record, I am of the view that this appeal is devoid of any merit. It is not in dispute that in the agreement, it had been stipulated that the sale-deed would be executed on 15.6.1990. Though it is the case of the plaintiff that he was ready and willing to perform his part of the agreement and he possessed the balance sale consideration, but on record the plaintiff has miserably failed to prove that on the date the sale-deed was to be executed, he possessed Rs. 22.5 lacs, i.e. balance sale consideration. In fact after the due date, plaintiff filed suit for permanent injunction restraining the respondents from, transferring and disposing of the suit land and in the alternative, prayed mandatory injunction directing the respondents to comply with the terms and conditions of agreement dated 6.4.1990. Respondents on notice of the suit, submitted that the plaintiff was never ready with the balance sale consideration or expenses for stamps and registration as on 15.6.1990 or at any time prior or after the said date. Respondents in their written statement gave an offer that they are still ready and willing to perform their part of the contract and even they asked the plaintiff to fix a date and intimate them in writing for execution of the sale-deed. Respondents averred:
"Although the plaintiff has not been ready and willing to perform his part of the contract and to pay the balance sale consideration and. to pay the stamp, registration and other allied expenses for completion of the proposed sale-deed yet in this written statement also the defendants No. 1 to 3 stated in unequivocal terms that they are ready and willing to execute the sale deed in favour, of the plaintiff as per terms and conditions and true construction thereof on receipt of balance sale consideration stamp, registration and other allied expenses with completion of formalities required for the same and for this the plaintiff may fix any day within fifteen days from this day and may intimate the defendants in writing through telegram or inland letter through registered post or in the Court in writing with copy of the said writing to the defendant No. 1 or defendants No. 2 and 3 of the day and date within such period as stated above of his intention to reach the office of Sub Registrar Panchkula with balance sale consideration, stamps, registration and other allied expenses for getting the proposed sale-deed construction thereof, also, the defendants shall treat the agreement in question as cancelled and they shall forfeit the earnest money received under the agreement as paid by the plaintiff to the defendant No. 1. Time is essence of the contract in this case and the same was not honoured by the plaintiff on 15.6.1990 and now the defendants fixing the said time make the same as essence of contract."
Despite the offer made by the respondents, plaintiff never came forward to get the sale-deed executed or pay the balance sale consideration. Infact, he got his suit for injunction dismissed. It is only thereafter that the present suit was filed for recovery, again on the ground that he was ready and willing to perform his part of the agreement. In view of non-acceptance of unequivocal offer of the respondents to execute the sale deed on receipt of balance sale consideration it is not open to the plaintiff now to state in the suit for recovery that he was ready and willing to perform his part of the agreement. The Courts below have rightly concluded that the plaintiff was never ready with the balance sale consideration. The other finding that the suit is barred under Order 2 Rule 2, Code of Civil Procedure, is also not to be interfered with. Order 2 Rule 2, Code of Civil Procedure, clearly provides that 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. It further provides that 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 reliefs so omitted. Admittedly, on the date of suit for injunction was filed, a right had accrued to the plaintiff to sue for specific performance of the contract or sue for recovery of the amount, but the plaintiff 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. Foundation of the previous suit was the alleged breach of the agreement and the foundation of the present suit is also the same. In Sidramappa v. Rajashetty and Ors., AIR 1970 S. C. 1059, the Apex Court in context of Order 2 Rule 2, Code of Civil Procedure, has held that the requirement of Order 2 Rule 2, 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 wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.
5. In view of the aforesaid binding precedent, no case is made out for interference. Consequently, the appeal is to be dismissed and it so ordered. No costs.