Kerala High Court
* Mathew vs Elikutty on 16 November, 2018
Equivalent citations: AIRONLINE 2018 KER 938
Author: A.Hariprasad
Bench: A.Hariprasad
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940
AS.No. 484 of 1998
AGAINST THE DECREE AND JUDGMENT DATED 28-02-1997 IN OS
NO.166/1994 of ADDITIONAL SUB COURT, PALAKKAD
APPELLANT (PLAINTIFF):
* MATHEW,
S/O.DEVASIA, NOW RESIDING AT VALLIYOTTIL,
MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD
DISTRICT.
(DIED. LRS IMPLEADED)
ADDL.APPELLANTS 2 - 7 IMPLEADED
2 THRESIAKUTTY MATHEW
W/O.LATE MATHEW, RESIDING AT VALLIYOTTIL,
MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD
DISTRICT.
3 SEBASTIAN MATHEW @ JOY
S/O.LATE MATHEW, DO. DO.
4 BENNY MATHEW
S/O. DO. DO. DO.
5 MARY PAUL
D/O. DO. DO. DO.
6 SIGI SAJI
D/O. DO. DO. DO.
AS No.484 of 1998 2
7 JOMON MATHEW
S/O. DO. DO. DO.
*LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 7 VIDE
ORDER DT. 05.07.2018 IN I.A. 875/2017
ADDL.A2 TO A7 BY ADVS. SRI.P.R.VENKETESH
SRI.KEERTHIVAS G.
RESPONDENTS (DEFENDANTS):
1 ELIKUTTY
W/O.ULAHANNAN, RESIDING AT THANICHUVATTIL,
KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA
TALUK, ERNAKULAM DISTRICT.
2 SIMMY,
S/O.ELIKUTTY RESIDING AT DO. DO.
3 SHONE,
S/O.ELIKUTTY, RESIDING AT DO. DO.
4 JOMON, AGED 13 YEARS(MINOR)
(MINOR 4TH RESPONDENT IS REPRESENTED BY GUARDIAN
HER MOTHER THE 1ST RESPONDENT)
R1 TO R4 - BY ADV.SRI.ABRAHAM VAKKANAL
(SENIOR ADVOCATE)
R1 -BY ADVS.SRI.DIJO SEBASTIAN
SMT.VINEETHA SUSAN THOMAS
SRI.PAUL ABRAHAM VAKKANAL
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11.10.2018, THE
COURT ON 16.11.2018 DELIVERED THE FOLLOWING:
C.R.
A.HARIPRASAD, J.
--------------------------------------
A.S.No.484 of 1998
--------------------------------------
Dated this the 16th day of November, 2018
JUDGMENT
Finer points touching Section 11 and Order II Rule 2 of the Code of Civil Procedure, 1908 (in short, "the Code") arise for consideration. In fact, a decision thereon will resolve the issues in this case fully and finally, as the questions of fact are subservient to the legal issues.
2. This appeal arises out of O.S.No.166 of 1994 before the Sub Court, Palakkad. Original appellant was the plaintiff. He died pending the appeal; his legal representatives are additional appellants 2 to 7. The suit is one for specific performance of Ext.A3 contract dated 18.09.1993, executed between the plaintiff and the 1 st defendant, for herself and on behalf of her children (defendants 2 to 4), who were minors at that time. This suit was tried by the court below along with O.S.No.164 of 1994. Details regarding O.S.No.164 of 1994 are relevant only for the purpose of considering whether the present suit is hit by the principles in Order II Rule 2 and Section 11 of the Code.
3. Brief facts relevant about O.S.No.164 of 1994 are that it was a AS No.484 of 1998 4 suit for prohibitory injunction simplicitor, filed by the defendants in this suit (respondents herein) against the plaintiff (original appellant). O.S.No.164 of 1994 was filed with the averments that the defendants therein tried to trespass upon the property involved in Ext.A3 contract and reduce the property into their possession. Trial court, after jointly trying the suits, found that the original appellant (plaintiff) was not entitled to get a relief of specific performance of Ext.A3 contract and his suit was dismissed. Consequently, O.S.No.164 of 1994 filed by the respondents was decreed. Aggrieved by the decree in O.S.No.164 of 1994, the original appellant preferred an appeal before the District Court, Palakkad as A.S.No.43 of 1998. The judgment in the above appeal has been produced by the appellants along with I.A.No.4447 of 2010 in this appeal. District Court's judgment would show that the appeal was dismissed in limine at the stage of admission hearing under Order XLI Rule 11 of the Code. It was observed by the District Judge that the trial Judge was fully justified in decreeing O.S.No.164 of 1994. It was further found by the District Judge that none of the observations by the trial Judge in O.S.No.164 of 1994 would operate as res judicata in O.S.No.166 of 1994 because there was no issue regarding the right of the appellant for a decree for specific performance of Ext.A3. With these observations, the appeal was dismissed in limine.
4. Now, coming to the facts in the suit for specific performance of AS No.484 of 1998 5 Ext.A3, it has to be mentioned first that Ext.A3 is a disputed document. Plaintiff in the suit would contend that himself and the 1 st defendant entered into a contract for sale of the plaint schedule property on 18.09.1993. Admittedly, the properties scheduled to the plaint belonged to the 1 st defendant and her deceased husband, Ulahannan. They purchased the properties through five sale deeds. It is the assertion in the plaint that the 1 st defendant for herself and on behalf of her minor children executed Ext.A3. Price agreed to between the parties was `62,000/- per acre. An amount of `1,00,000/- was paid by the plaintiff to the 1 st defendant as advance sale consideration. It was decided by the parties that balance sale consideration would be paid promptly and at that time the properties would be measured out. The transaction should be completed on or before 30.03.1994. According to the plaint averments, the properties were measured on 13.12.1993 in the presence of the 1st defendant's brother and two other persons. It was found on ground that an excess extent of 57 cents was available. Plaintiff would contend that he had taken all steps to get the sale deed executed. He had sold his property for raising necessary funds in anticipation of the transaction. On 03.01.1994, he approached the 1st defendant, but she was not ready to discharge her obligations under Ext.A3. Thereafter some mediators intervened, but without any success. Plaintiff herein had filed O.S.No.37 of 1994 against the 1st defendant for preventing any breach of terms in Ext.A3 AS No.484 of 1998 6 agreement. Plaintiff was ready and willing to perform his part of the agreement and he is still willing to discharge his obligations. Since the defendants failed to perform their part, the suit is filed.
5. Defendants stoutly opposed the plaint claim. The plaintiff had filed a suit for prohibitory injunction as O.S.No.37 of 1994, which was dismissed on 24.08.1994. Plaint schedule properties admittedly belonged to the 1 st defendant and her minor children. It was a fact known to the plaintiff that the 1st defendant did not have any right to alienate the minors' shares. No permission under the Guardians and Wards,1890 was obtained by either of the parties from the District Court concerned. Ext.A3 is not beneficial to the minors' interest. According to the averments in the written statement, the plaintiff along with his friends came to the residence of the 1 st defendant and forcefully got Ext.A3 signed by her under duress. 1 st defendant's brother-in- law Mathai also came along with the plaintiff and threatened her. Without revealing the true facts, she was forced to sign Ext.A3 document. Value of the properties shown in Ext.A3 was much lesser than the actual market value prevailed at the material time. Ext.A3 reveals an unconscionable bargain. The suit is barred under Order II Rule 2 of the Code since the prayer for specific performance was not claimed by the plaintiff at the first opportunity in O.S.No.37 of 1994. Plaintiff's attempt is to make an unlawful gain by compelling specific performance of Ext.A3, which is legally bad for mis- AS No.484 of 1998 7 representation, threat, fraud and coercion.
6. Court below proceeded with trial of the cases by taking O.S.No.166 of 1994 as the leading case. Two witnesses were examined on the side of the plaintiff and one on the side of the defendants. Exts.A1 to A3 and B1 to B6 series are the documents produced by the parties. Ext.C1 is the advocate commissioner's report.
7. Heard the learned counsel appearing for the appellants and learned senior counsel appearing for the contesting respondents.
8. In the first place, I shall deal with the legal questions arising for determination. Learned senior counsel contended that this suit for specific performance is barred under Order II Rule 2 of the Code. This contention is on the basis of Ext.B1, a carbon copy of the plaint in O.S.No.37 of 1994 and Exts.B2 and B3, copies of the decree and judgment respectively in the above suit. It is argued that the above documents would show that the claim in the present suit was abandoned by the plaintiff without any justification and without obtaining any leave of the court. The cause of action for the present suit was available to the plaintiff at the time of filing O.S.No.37 of 1994. Hence the plaintiff is precluded from instituting any fresh suit in respect of that cause of action. These aspects will be clear from the plaint averments as well as from the paragraph revealing cause of action for the suit.
9. Pivotal point is about application of Order II Rule 2 of the Code. AS No.484 of 1998 8 Learned senior counsel contended that since the cause of action for the present suit was available to the plaintiff at the time of filing O.S.No.37 of 1994 and still he intentionally omitted to claim all the reliefs claimable by him at that time, the present suit is hit by Order II Rule 2 of the Code. Per contra, learned counsel for the appellants contended that if we apply the correct principles of law, it can be seen that a bar under Order II Rule 2 of the Code is not attracted in this case. I shall examine these contentions meticulously. Before that let me extract the provision for clarity:
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- 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 AS No.484 of 1998 9 afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
Sub-rule (1) of Order II Rule 2 of the Code deals with the frame of suit and it enables a plaintiff to abandon or relinquish a part of his claim before instituting the suit. The provisions in Order II Rule 2 indicate that if the plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit. This provision is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order II Rule 2 of the Code is to avoid multiplicity of proceedings. Statement of law in Sub-rule (2) to Order II Rule 2 of the Code is clear; where the 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. This is an absolute bar.
10. Sub-rule (3) of the above provision gives no room for any doubt regarding its extent and operation. A person entitled to more than one relief in respect of the same cause of action may sue for all or any such reliefs. But, if AS No.484 of 1998 10 he omits, he shall not afterwards sue for any relief so omitted, unless he had omitted to sue with the leave of the court. In other words, if a plaintiff omits, without obtaining a leave of the court to sue in respect of all reliefs arising out of the cause of action available to him at the time of filing the suit, he shall not afterwards sue for any relief so omitted. As mentioned above, the principles enunciated in Order II Rule 2 of the Code are based on a public policy and with a salutary object that no person shall be vexed twice for the same cause. It is therefore clear that the bar should be determined having regard to the facts and circumstances in each case.
11. Any discussion on this topic will be incomplete without referring to a lucid pronouncement by a Constitution Bench of the Supreme Court in Gurbux Singh v. Bhooralal (AIR 1964 SC 1810). Relevant portions in paragraphs 6 and 7 of the judgment are quoted hereunder:
"6. In order that a plea of a bar under O.2 R.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 AS No.484 of 1998 11 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 basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O.2 R.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. ...............
7. ......... Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O.2 R.2, Civil Procedure Code cannot be made out except on proof of the plaint in the AS No.484 of 1998 12 previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. ............"
12. Reverting to the relevant facts, the properties scheduled to Ext.B1 are the same properties included in the present suit. In Ext.B1 there are specific assertions by the plaintiff (original appellant) that he obtained possession of the properties pursuant to Ext.A3 contract. In paragraph 5, it has been specifically averred that on 03.01.1994 the plaintiff approached the sole defendant in O.S.No.37 of 1994 with balance sale consideration for executing a sale deed pursuant to Ext.A3. At that time, she refused to fulfil her obligations under Ext.A3. Thereafter some mediators intervened and then also the defendant unequivocally expressed her unwillingness to go ahead with the terms in Ext.A3. Apart from these recitals in Ext.B1, it is mentioned AS No.484 of 1998 13 that the cause of action for the suit arose on 03.01.1994 when the defendant denied her obligations under Ext.A3 and thereafter on 08.01.1994, again when she repeated her adamant stand that she would not honour the agreement. It is discernible from Ext.B1 that in clear terms the defendant had put the plaintiff to notice about her demur in honouring her obligations under Ext.A3.
13. In this context, Article 54 of the Limitation Act, 1963, extracted hereunder, will be relevant:
Description of suit Period of Limitation Time from which period begins to run
54. For specific Three years The date fixed for the performance of a performance, or, if no contract. such date is fixed, when the plaintiff has notice that performance is refused.
14. Admittedly, the deadline fixed for performance was 30.03.1994. Ext.B1 suit was filed by the plaintiff on 13.01.1994. In one view of the matter, at the time of filing Ext.B1 suit, the time stipulated for performance of the contract was not over; but it is crystal clear from the averments in Ext.B1 plaint that even on 13.01.1994 the plaintiff was fully aware and had notice that AS No.484 of 1998 14 the defendant in O.S.No.37 of 1994 (1st defendant in the present suit) had refused to perform her part of the agreement. Going by Article 54 of the Limitation Act, time for filing a suit for specific performance started running before 13.01.1994, when the defendant had informed the plaintiff that she was not willing to perform her part in Ext.A3. Factually, there cannot be a dispute to the statement that the plaintiff had the cause of action for the present suit even at the time of filing Ext.B1 suit.
15. Ratio in Gurbux Singh's case has been followed in many decisions. Since the decision in Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited ((2013) 1 SCC 625) has some bearing in this case, I shall refer to the line of reasoning therein.
16. In Virgo Industries's case, the plaintiff instituted two suits before the Madras High Court seeking a decree of permanent injunction restraining the defendant from alienating, encumbering or dealing with the plaint schedule property to any third party. Reliefs were claimed on the basis of two agreements for sale entered into between the plaintiffs and defendant on 27.07.2005 in respect of two different parcels of immovable property. In each of the aforementioned suits, the plaintiffs have stated that under the agreements for sale, different amounts were paid to the defendant; yet on the pretext of some restrictions on alienation of the land, issued by the Central Excise Department on account of pending revenue demands, the defendant AS No.484 of 1998 15 attempted to frustrate the agreements in question. Term fixed for performance of the contract was six months from the date of execution of the agreements. The period prescribed was not over at the time of filing the suits. The plaintiffs had not claimed a relief of specific performance of the agreements. Accordingly, they sought leave of the court to omit to claim the relief of specific performance and liberty to sue for the said relief at a later point of time, if necessary. However, it is not discernible if the leave asked for was granted. Thereafter the suit for specific performance was filed. While so, the defendant in both the suits moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints on the ground that the provisions contained in Order II Rule 2 of the Code barred both the suits. It was contended that the cause of action for both the suits was the same, viz., the refusal and reluctance of the defendants to execute the sale deeds in terms of the agreements. Therefore, at the time of filing the first set of suits, it was open to the plaintiffs to claim the relief of specific performance. Plaintiffs had not sought the said relief, nor leave was granted by the Court. In such circumstances, according to the defendant, the suits filed by the plaintiffs for specific performance were barred under Order II Rule 2 of the Code. High Court took the view that on the date of filing the suits for injunction, the time stipulated in the agreements between the parties for execution of the sale deeds was not expired. It was therefore decided that the AS No.484 of 1998 16 cause of action to seek the relief of specific performance had not matured. High Court ultimately took the view that the provisions in Order II Rule 2 of the Code were not attracted to render the subsequent suits non-maintainable. High Court further took a view that the petition under Article 227 of the Constitution was not maintainable as the defendant had the remedy of approaching the trial court under Order VII Rule 11 of the Code.
17. In the above factual context, the Supreme Court after considering the decision in Gurbux Singh's case held thus:
"10. The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order 2 Rules 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. ........"
11. The cardinal requirement for application of the AS No.484 of 1998 17 provisions contained in Order 2 Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust ((2012) 8 SCC 706). The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Laws of England (4 th Edn.). The following reference from the above work would, therefore, be apt for being extracted hereinbelow:
"'Cause of action' has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular action on the AS No.484 of 1998 18 part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, nor merely the technical cause of action."
Finally the Supreme Court concluded in the following manner:
"The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in R.Vimalchand v. Ramalingam ((2002) 3 MLJ 177) holding that the provisions of Order 2 Rule 2 CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2 Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 CPC as already discussed by us, namely, that Order 2 Rule 2 CPC seeks to avoid multiplicity of litigations on the same cause of action. If that is the true object of the law, on which we do not entertain AS No.484 of 1998 19 any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 2 Rule 2 CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scare, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram (ILR (1894) 16 All
165) and by the Bombay High Court in Krishnaji Ramchandra v. Raghunath Shankar (AIR 1954 Bom 125)."
The appeals were allowed and the order passed by the High Court was set aside.
18. This decision was followed by a division bench of this Court in Sasidharan Nair v. Kunju Mohammed Unni (2017 (3) KLT 751). Decision rendered in Rathnavathi v. Kavita Ganashamdas ((2015) 5 SCC 223) relied on by the learned counsel for the appellants was referred to and distinguished in Sasidharan Nair's case.
19. Learned counsel for the appellants contended that the ratio in Rathnavathi (supra) will apply to this case and bar under Order II Rule 2 of the Code will not be attracted herein. I shall briefly examine the facts involved AS No.484 of 1998 20 in Rathnavathi. Dispute in the case related to a dwelling house. Suit house was purchased by the 2nd defendant from Bangalore Development Authority (BDA). On 15.02.1989, 2nd defendant entered into an agreement with the plaintiff for sale of the suit house at a total consideration of `3,50,000/-. Plaintiff paid `50,000/- as advance towards the sale consideration. On 07.01.2000 the plaintiff filed a civil suit initially against three defendants seeking permanent prohibitory injunction restraining them from interfering with the plaintiff's possession over the suit house. It was averred in the plaint that the plaintiff later paid the entire balance consideration of `3,00,000/- towards the sale price and obtained receipts acknowledging the payment. Again it was contended that the plaintiff was put in actual possession of the suit house and on the date of suit also, she was in possession of the house. She further contended that improvements were made therein by spending money. In the plaint, it was contended that the plaintiff was ready and willing to perform her part of the agreement to get the sale deed executed in her favour. However, 2nd defendant for reasons best known to her did not execute the sale deed despite having received full sale consideration from the plaintiff. 1 st defendant who was a total stranger to the contract and having no right, title or interest in the suit house, on 02.01.2000 came to the house along with 2nd defendant and other anti-social elements and threatened the plaintiff to dispossess her from the suit house. The highhanded act was repeated once more. Plaintiff AS No.484 of 1998 21 thereafter lodged a complaint in the police station concerned. Since they did not take any action, she filed a suit for injunction.
20. Defendants contested the suit admitting the factum of entering into a contract with the plaintiff. However, they contended that the plaintiff did not pay balance consideration as alleged. According to them, the 2nd defendant on 25.10.1995 had cancelled the agreement dated 15.02.1989 by sending a legal notice to the plaintiff and then sold the suit house to the 1 st defendant on 09.02.1998 for `4,00,000/-.
21. On 31.03.2000 the plaintiff filed another civil suit against the defendants for specific performance of the contract dated 15.02.1989. Defendants contested that suit too admitting execution of the contract with the plaintiff. But they contended that the plaintiff was not ready and willing to perform her part of the contract and she did not pay the balance consideration as agreed to between the parties. In this context, the question of bar under Order II Rule 2 of the Code was considered by the Supreme Court. The decisions in Gurbux Singh and Virgo Industries were referred to by the Court. It was observed that bar under Order II Rule 2 of the Code was not attracted because of the distinction in the causes of action for filing two suits. It was noticed by the Supreme Court that at the time when the plaintiff filed the first suit for injunction, there was no material available with her to know that the 2nd defendant had done any act in repudiation of the contract. From the AS No.484 of 1998 22 facts given in the decision, it is not clear if there was any time fixed for performance of the contract as envisaged under Article 54 of the Limitation Act, 1963. Moreover, no pleading and evidence was available to the effect that the 2nd defendant had put the plaintiff on notice about the refusal of performance. In this backdrop, the Supreme Court found that the first suit for injunction was based on a specific cause of action available to the plaintiff at that time and when that suit was filed, the plaintiff was not having a cause of action for a suit for specific performance of the contract. Only when the defendants filed a written statement in the first suit expressing their refusal to perform the contract, the cause of action for the second suit arose. On this reasoning, the Supreme Court found that bar under Order II Rule 2 of the Code was not attracted in that case. The special factual features in the case are totally dissimilar with the facts in this case. It is axiomatic that ratio in every precedent should be understood and applied in the factual background in which it was rendered. It is therefore clear that the principle in Rathnavathi's case cannot be blindfoldedly applied to this case.
22. Another decision relied on by the learned counsel for the respondents is Sucha Singh Sodhi v. Baldev Raj Walia ((2018) 6 SCC 733). On 11.10.1996 the original plaintiff, since dead and represented by legal representatives (appellants 1 to 4), filed a suit against the 1st respondent for permanent prohibitory injunction. The plaint was founded on the allegation, AS No.484 of 1998 23 inter alia, that the 1st respondent was the owner of a house and on 27.02.1996 he had agreed to sell the said premises to the original plaintiff for `11,50,000/- and out of the total amount, he had paid a sum of `2,00,000/- by way of advance. It was further alleged that the original plaintiff was placed in possession of the premises and subsequently in May, 1996, the original plaintiff paid `36,000/- more to the 1st respondent towards the sale consideration. On 10.10.1996 the 1st respondent threatened to dispossess the original plaintiff from the suit premises and attempted to do so. Hence the suit for permanent prohibitory injunction was filed.
23. 1st respondent filed a written statement contending that he had already transferred the suit properties to 2nd respondent. Therefore remedy of the original plaintiff would be to file a suit for specific performance of the agreement. In the light of these contentions on 27.11.1998 the original plaintiff made a statement in the court expressing his willingness to withdraw the first suit. Trial court allowed the original plaintiff to withdraw the suit for injunction by passing a detailed order. Thereafter the suit for specific performance of the agreement was filed by the original plaintiff. Subsequent purchaser was also made a party to the suit. Both the defendants disputed the suit on various grounds, including the ground under Order II Rule 2 of the Code. The Supreme Court after considering the facts and circumstances held that the cause of action for the two suits are different and the cause of action for the AS No.484 of 1998 24 suit for specific performance was not available to the plaintiff at the time of filing the first suit. Here also the factual situation is different from the facts in this case. As pointed out earlier, from Ext.B1 plaint, it can be clearly seen that much before the time agreed to for performance of Ext.A3 was over, the 1 st respondent by her words and deeds expressly clarified that she was unwilling to perform her obligations under the contract. That has been clearly pleaded in Ext.B1 plaint. That has been shown as one of the reasons for accrual of the cause of action for the suit. Since these facts are strikingly clear from Ext.B1 plaint, the appellants cannot take shelter under the ratio in Rathnavathi and Sucha Singh Sodhi mentioned above. That apart, in Sucha Singh Sodhi's case, the 1st suit was withdrawn with the permission of the court before filing a suit for specific performance. In this case, Ext.B1 plaint was dismissed as not pressed which can be seen from Exts.B2 and B3. Therefore, argument advanced by the learned counsel for the appellants that the principles in Rathnavathi and Sucha Singh Sodhi will come to the rescue of the appellants cannot be accepted. From the pleadings in Ext.B1, it will be clear that the plaintiff had consciously abandoned the relief of specific performance despite accrual of a cause of action for such a suit in his favour on the date of filing Ext.B1. He had abandoned the first suit without seeking leave under Order XXIII Rule 1 of the Code. For all the above said reasons, I find that the suit is barred by Order II Rule 2 of the Code.
AS No.484 of 1998 25
24. Yet another question is regarding bar of res judicata. As mentioned at the outset, this suit was jointly tried along with O.S.No.164 of 1994 and a common judgment was passed. Going by the valuation, appeal against the judgment and decree in O.S.No.166 of 1994 could be maintained only before this Court and hence the appellants rightly filed it here. The other suit, viz., O.S.No.164 of 1994, could be taken in appeal to the District Court only. Hence A.S.No.43 of 1998 was filed before the District Court, Palakkad. Judgment in the above appeal by the District Judge has been produced along with I.A.No.4447 of 2010. In the interlocutory application, registration copies of title deeds in the names of 1 st defendant and her husband have been produced. Another document produced is the copy of the plaint in O.S.No.164 of 1994. Since these documents are relevant for adjudication of this appeal and also that no new document is attempted to be produced, I find the additional evidence under Order XLI Rule 27 of the Code should be received, especially when these documents are undisputed documents. And contesting defendants failed to produce their title deeds at the time of trial. Hence additional documents produced along with the interlocutory application are received and marked as Exts.A4 to A10.
25. Coming back to the question of res judicata, it is vehementally argued by the learned senior counsel for the respondents that the appeal is hit by Section 11 of the Code since it is filed against the judgment and decree AS No.484 of 1998 26 passed in a suit which was jointly tried with another suit, appeal against which was dismissed in limine by the District Court, and that dismissal has become final without any challenge. It is therefore contended that the issues involved in O.S.No.164 of 1994, which were determined in A.S.No.43 of 1998 by the District Court, Palakkad, attained finality and therefore the same issues cannot be re-agitated. Per contra, learned counsel for the appellants contended that the issues in O.S.No.164 of 1994 and the issues in the present suit, viz. O.S.No.166 of 1994 are different and a final decision in O.S.No.164 of 1994 has no bearing on the issues involved in this case. Hence the question of res judicata does not arise.
26. True, issues were not satisfactory framed by the trial court in both the cases. In O.S.No.164 of 1994, an issue regarding possession of the properties with reference to Ext.A3 agreement should have been framed. Nevertheless, in the course of discussion on the issue framed in O.S.No.166 of 1994 as to whether the plaintiff was entitled to any decree for specific performance, the issues involved in both the cases have been elaborately considered and decided. It is also clear from the records that the parties have adduced evidence with full knowledge of the rival contentions and arguments were also advanced on the questions involved in both the suits. When parties understood each other's contentions as borne out from pleadings and adduced evidence, non-framing of a pertinent issue may not vitiate the trial. A AS No.484 of 1998 27 comprehensive finding was entered in both the suits that the plaintiff in O.S.No.166 of 1994 (original appellant) was not entitled to get specific performance of Ext.A3 agreement. It is true that the plea of fraud, misrepresentation, etc. raised by the respondents against Ext.A3 had been rejected by the trial court. Still, involvement of minors in Ext.A3 deterred the trial court from granting a decree for specific performance in favour of the original appellant. Trial court entered a finding that since Ext.A3 agreement cannot be enforced, apprehension of the plaintiff in O.S.No.164 of 1994, that the defendant might trespass upon the property, was found to be genuine and reasonable. Hence O.S.No.164 of 1994 was decreed. It is therefore clear that consideration for the grant of permanent prohibitory injunction decree in O.S.No.164 of 1994 is intrinsically intertwined with the findings in O.S.No.166 of 1994.
27. A full bench of this Court in Janardhanan Pillai v.
Kochunarayani Amma (1976 KLT 279) has pronounced on the question of res judicata when two suits between the same parties substantially with the same questions are decided by a common judgment. Impact of filing an appeal only from one of the decisions was the pointed question decided by the full bench. It held thus:
"Stated in simple form the principle of this rule is that when once there has been a decision between the parties to a suit this AS No.484 of 1998 28 rule will preclude the trial of a fresh suit for the same relief between the same parties. So is the case with a defendant setting up the same plea in a subsequent suit between the same parties. The suit or issue must have been heard and finally decided in order to constitute res judicata. "Former" in Explanation I denotes a suit which is decided prior to the suit in question irrespective of whether it was instituted earlier or later. The rule applies not only to Original Suits but also to appeal suits. These are matters on which there is no controversy.
11. If there are two suits in which the matter directly and substantially in issue are the same that the earlier decision in one of the suits bars a fresh decision in the other suit is evident from the provisions in S.11 of the Code of Civil Procedure. Therefore, when there are two suits in which substantially the same question arises for decision and they are decided by a common judgment or by judgment in the main case that being incorporated in the second case and when only one of the judgments is subjected to appeal what would be the effect of the failure to appeal against the other judgment? Could it be said that these two judgments, having been rendered at the same time, one cannot be said to be the decision in a former suit? It is AS No.484 of 1998 29 true that the party has right of appeal against the decision in both the suits and if such right of appeal is exercised in regard to only one of the decisions, does the other decision become final so as to debar an independent consideration of the appeal so taken? These are the questions which call for examination in these Second Appeals.
12. In cases where two or more suits between the same parties relating substantially to the same matter are decided and only one of them is challenged by way of appeal, we fail to see how it can be said that the decisions are simultaneous and hence there can be no bar of res judicata. If the party takes up in appeal only one of the decisions, the others become final. The question, then, for consideration would be whether these decisions which have become final operate as res judicata. The question of res judicata would arise for determination only when the appeal against the connected decision is taken up for consideration. That will necessarily be at a subsequent point of time. At that moment there would be earlier decisions which have become final. The question whether the decision from which appeal has been filed and the decisions which have become final were rendered simultaneously would then be really irrelevant. Within AS No.484 of 1998 30 the meaning of Explanation I of S.11 of the Code of Civil Procedure the decision which becomes final by being not appealed against becomes an earlier decision in a matter directly and substantially in issue in the former suit and operates as res judicata. This is notwithstanding the very serious consequences that the party who has filed appeal against one only of the two decrees may have to face. It is not as if his right of appeal becomes unavailable to him because of the bar of res judicata. He has the right to have his appeal taken up and considered, but he cannot get relief to the extent the question in issue which calls for decision in the appeal cannot be considered on the merits by reason of the bar of res judicata. The very rule of res judicata is a technical rule which precludes a party who may have a case from prosecuting his case with a view to obtain relief. It serves the larger interest of public policy by promoting the rule that there must be an end to litigation and a security to the litigant. No man should be vexed twice over the same cause is a rule founded on ancient precedents dictated by wisdom. If the party to the decree would be bound by the decree if he does not challenge the decree he must face the consequences of his failure to appeal against it, such consequence being the finality AS No.484 of 1998 31 thereof. Such finality would debar a decision afresh on the question even if it be in an appeal against a simultaneous decision. We do not see justification to import any rule of expediency to the context."
28. Learned counsel for the appellants argued that the observation by the full bench to the effect that "it is not as if the appellant's right of appeal becomes unavailable to him because of the bar of res judicata, he has the right to have his appeal taken up and considered, but he cannot get relief to the extent the question in issue which calls for decision in the appeal cannot be considered on merits by reason of the bar of res judicata" would indicate that the question regarding entitlement to a decree for specific performance cannot depend on the questions decided in a suit for prohibitory injunction. I am afraid, I cannot accept this contention. As pointed out earlier, the trial court's decision in both the cases revolved around Ext.A3. Although Ext.A3 was found to be properly executed by the 1 st defendant, its enforceability was found against. Moreover, contrary to the recitals therein, the plaintiff in O.S.No.164 of 1994 was found to be in possession of the property. It is a well settled legal principle that even a wrong decision by a competent court, which has become final, may operate as res judicata, unless challenged and got reversed in an appeal or other proceedings. Here, in O.S.No.164 of 1994, rightly or wrongly the trial court found that the original appellant, as a AS No.484 of 1998 32 defendant in that suit, was liable to be injuncted by a permanent prohibitory injunction decree from trespassing into the plaint schedule property and that finding was based on his disentitlement to get a decree for specific performance of Ext.A3. Even if one assumes that the view taken by the trial court was wrong, allowing the dismissal of appeal in limine to attain finality would operate as res judicata in this proceedings.
29. Same principle has been enunciated by the Supreme Court in Premier Tyres Ltd. v. Kerala State Road Transport Corporation (1993 (2) KLT 130) which was followed by a large number of decisions of this Court including Mathew v. Rajan (2016 (1) KLJ 526). On a perusal of the impugned judgment and Ext.A4 judgment by the District Court in A.S.No.43 of 1998, it can be seen that the issues involved in the suit for injunction and the suit for specific performance overlapped to a large extent and the core issue in both the suits was about acceptability and enforceability of the terms and conditions in Ext.A3 agreement. Therefore, I am of the view that allowing the judgment and decree in O.S.No.164 of 1994 to attain finality will prevent this Court from hearing and disposing of this appeal on merit by virtue of the principles of res judicata embodied in Section 11 of the Code.
30. Foregone discussions will make it clear that there are legal bars in hearing and disposing this appeal on merit. So much so, facts assume no importance in this case. It is seen from the records that two witnesses were AS No.484 of 1998 33 examined on the side of the plaintiff and one on the side of the defendants. Documents originally produced by the plaintiff before the trial court and the additional documents would show that the properties belonged to the 1 st defendant and her husband were agreed to be sold to the plaintiff as per Ext.A3 agreement. The testimony of witnesses were correctly analysed by the court below to find that the vitiating circumstances set up by the 1 st defendant against Ext.A3 had gone unestablished. Court below, on noticing that minors' interest over the property was also agreed to be sold pursuant to Ext.A3 without obtaining any sanction under law, thought that it was a major hurdle in specifically enforcing the contract. Principles in Section 12 of the Specific Relief Act, 1963 were also considered by the court below. These factual issues are not seriously challenged at the time of hearing. As pointed out earlier, fate of the appeal mainly depends on the legal issues raised for determination.
31. Aforementioned discussions would show that the conclusion arrived at by the court below for dismissing the contentions of the respondents that the suit is barred under Order II Rule 2 of the Code cannot be sustained. Hence that finding has to be set aside. I do so.
32. In order to surmount the difficulty faced by the appellants on account of the trial court's clear finding that minors' interest could not be specifically enforced, the appellants preferred I.A.No.1492 of 2011 in this AS No.484 of 1998 34 appeal seeking amendment of the plaint. This application, filed after 17 years of commencement of the suit, is strongly opposed by the respondents. This application cannot be allowed at this stage and that too at this distance of time for the following reasons. First of all, it violates the general rule in the proviso to Order VI Rule 17 of the Code. Interdiction in the proviso intends to prevent a belated amendment application filed without bonafides after commencement of trial. In this case, it has been filed much beyond the stipulated time. It is true that the apex Court has made pronouncements to the effect that the restrictions imposed by the proviso to Order VI Rule 17 of the Code on the power of the court to amend the pleadings are only directory in nature. Facts and circumstances in this case do not prompt this Court to allow such a belated amendment. It is relevant to note that the suit was filed in the year 1994. It was finally decided in the year 1997. The appeal was filed in the year 1998. And the amendment application was filed only in the year 2011. In these factual background, it is relevant to remember the principle that belated amendments, which are not bonafide, cannot be allowed to unsettle the rights accrued in favour of a party to a litigation. It cannot be said in the facts and circumstances in this case that the application for amendment was filed in good faith at this distance of time. Catena of decisions, including Banta Singh v. Harbhajan Kaur (AIR 1974 Punjab and Haryana 247(FB)), are available to buttress the proposition that in order to exercise the court's discretion to AS No.484 of 1998 35 allow an amendment, it must be established that the applicant acted in good faith.
33. On a perusal of the application for amendment it can be seen that in the original plaint there was no alternative prayer sought for return of advance amount paid. It is clear from Section 22 of the Specific Relief Act, 1963 (in short, "the Act") that unless such a prayer is made, the court shall not grant such a relief. I am aware of the legal position that an amendment to the plaint to this extent can be sought for at any time, meaning thereby that it can even be sought in this appeal. But other aspects in the amendment application running to numerous meticulous details, which, if allowed, will result in substitution of the original pleadings by a new case. It is seen from the application that the appellants now seek enforcement of the contract against 1st defendant's interest in the properties. At the time of argument, learned counsel submitted that the appellants are prepared to forgo all reliefs against the item of property which belonged to deceased Ulahannan. In other words, the relief of specific performance is confined to four items of properties standing in the name of the 1st defendant alone. It is also conceded by the learned counsel that the appellants do seek reliefs against the properties outstanding in title and possession to the 1 st defendant alone, covered by four documents, and they do not intend to lay any claim in respect of the properties agreed to be assigned or actually assigned by the 1 st defendant to AS No.484 of 1998 36 some strangers prior to the suit. In fact, what was allegedly agreed to be sold by the 1st defendant to the plaintiff was only the properties left behind after disposal to other parties. Appellants filed a statement indicating the above facts before this Court.
34. Court below had considered the implication of Section 12 of the Act. It entered a finding that the extent of the property over which the erstwhile minors are having right and the extent to which the 1 st defendant is having right could not be clearly understood either from the pleadings in the plaint or from the evidence adduced by the plaintiff. That was also one of the circumstances which prompted the court below to deny the relief of specific performance. In the wake of the stand now taken by the appellants, application of the principles under Section 12 of the Act pales into insignificance because the appellants are now seeking specific performance of Ext.A3 contract only in respect of the properties owned by the 1st defendant, who was admittedly a major at the time of contract. Therefore, the principles laid down by the Supreme Court in P.C.Varghese v. Devaki Amma Balambika Devi and others ((2005) 8 SCC 486) overruling a division bench decision of this Court in Devaki Amma v. Varghese (2000 (3) KLT 330) are of no application to the situation churned out by the stand now taken by the appellants that they do not require erstwhile minors' interest in the properties. Other decisions cited at bar by the learned counsel for the appellants AS No.484 of 1998 37 declaring the principles under Section 12 of the Act are also inapplicable to the facts in this case. Therefore, I do not elaborate on them.
35. As mentioned earlier, fate of the case is sealed by virtue of the finding that the suit is hit by Order II Rule 2 and Section 11 of the Code. Therefore, the factual questions, which ought to yield to the legal issues, are insignificant. Hence I find no reason to allow the amendment sought for at this stage for the aforementioned reasons. The application, therefore, is dismissed.
36. At the time of argument, learned senior counsel for the respondents submitted that even though the plea for return of advance amount was not made by the original plaintiff, the respondents are prepared to return the advance amount received from the original appellant with a reasonable interest. On the contrary, the learned counsel for the appellants contended that the original appellant was desirous of purchasing the property and he was not interested in getting the advance amount returned. It is also argued on behalf of the appellants that value of money has been considerably diminished from 1994 to 2018 and return of advance amount therefore may not be a justiciable relief to the appellants.
37. Having regard to the legal and factual positions discussed above and also the fact that the appellants are not entitled to get the plaint amended exhaustively at this distance of time, I find the appellants are not entitled to AS No.484 of 1998 38 get a decree for specific performance of Ext.A3. The appeal is devoid of any merit. Hence the substantive relief of a decree for specific performance of Ext.A3 is declined to the appellants.
38. However, as the learned senior counsel agreed on behalf of the respondents before this Court that they are prepared to return the advance amount received from the original appellant with a reasonable rate of interest, I hereby direct the respondents to pay `1,00,000/- (Rupees one lakh only) to the appellants with 9% interest from the date of Ext.A3 till this date. If the amount is not paid to the appellants within a period of one month from the date of this judgment, the appellants are entitled to execute that portion of the decree and in that event, it will carry 6% future interest from the date of decree of this Court till realisation.
Appeal is dismissed, subject to the above directions.
Parties are directed to suffer their costs.
A.HARIPRASAD, JUDGE.
cks AS No.484 of 1998 39 APPENDIX APPELLANT'S EXHIBITS:
EXT.A4- TRUE COPY OF THE JUDGMENT IN AS NO.43/98 DATED 18.6.98 PASSED BY THE COURT OF DISTRICT JUDGE, PALAKKAD EXT.A5-TRUE COPY OF THE REGISTERED JENM ASSIGNMENT DEED NO.1887/91 AT THE SRO, ALATHUR EXT.A6-TRUE COPY OF REGISTERED JENM ASSIGNMENT DEED NO.2664/1988 DATED 21.6.1988 AT THE SRO, ALATHUR EXT.A7- TRUE COPY OF REGISTERED JENM ASSIGNMENT DEED NO.2700/1988 DATED 22.6.1988 AT THE SRO, ALATHUR EXT.A8-TRUE COPY OF DOCUMENT NO.3131/1988 DATED 12.8.1988 OF SRO, ALATHUR EXT.A9-TRUE COPY OF DOCUMENT NO.2699/1988 DATED 22.6.1988 OF SRO, ALATHUR EXT.A10-TRUE COPY OF THE PLAINT IN OS NO.164/1994 FILED BEFORE THE SUB COURT, PALAKKAD.
//TRUE COPY// AS No.484 of 1998 40 A.HARIPRASAD, J.
A.S.No.484 of 1998 JUDGMENT 16th November, 2018 AS No.484 of 1998 41