Madras High Court
Neela Sports Development And ... vs Vadhula Engineering Co.Pvt Limited on 1 February, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
AS.No.839 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
AS.No.839 of 2009
Neela Sports Development and Educational Trust
by its Managing Trustee, C.Neela Sivalingasamy Appellant
Vs
1. Vadhula Engineering Co.Pvt Limited
by its Director, A.V.Sankaran, Coimbatore
2. A.V.Sankaran, Director,
Vadhula Engineering Co.Pvt Limited
Coimbatore
3. Shanmuganathan Kanakavalli Medical Education
and Research Foundation, by its Trustee
Kanakavalli Shanmuganathan
4. A.Jeyakumar, Manager
Neela Sports Development Educational Trust
Tirunelveli Respondents
Prayer:- This Appeal Suit has been filed, under Section 96 of CPC, against the
order dated, 20.12.2007 made in IA.No.648 of 2006 in OS.No.549 of 2004, by
the Additional District Sessions Judge (FTC-III) Coimbatore.
For Appellant : Mr.V.Selvaraj, SC
For Respondents : Mr.S.Mukunth, SC
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AS.No.839 of 2009
JUDGEMENT
(Judgement of the Court was made by S.S.SUNDAR, J.)
1. The 1st Plaintiff in OS.No.549 of 2004, on the file of the Additional District Sessions Court (FTC No.III) Coimbatore, is the Appellant in the above appeal. This appeal is directed against the order passed in the application in IA.No.648 of 2006 in OS.No.549 of 2004, filed under Order 7 Rule 11 of CPC, by the 3rd Defendant in the suit, rejecting the plaint in OS.No.549 of 2004.
2. The brief facts, which are necessary for disposal of this appeal, are as follows:-
a) The 1st Defendant is a Private Limited Company, represented by its Director, the 2nd Defendant. The suit property is the property of the 1st Defendant. The Appellant entered into a sale agreement, dated 29.01.2003, with the 1st Defendant in respect of the suit property. As per the sale agreement, the total sale consideration agreed to be paid was Rs.4 lakhs per acre and a sum of Rs.1,50,000/- was paid as advance. Out of the balance of sale consideration payable, it is stated that the Plaintiff has to pay a sum of Rs.15 lakhs, within 20 months from the date of the agreement towards discharge of the mortgage. The remaining balance of the sale consideration, namely, a sum of Rs.9,10,000/- was to be paid within three months after discharge of mortgage.2/22
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b) The Appellant specifically pleaded that he was always ready and willing to perform his part of the contract and to pay the balance of sale consideration towards discharge of the mortgage in respect of the suit property. It is specifically stated that the Plaintiffs moved the Defendants 1 and 2 to take early steps to get the mortgage discharged by paying the mortgage loan and make the property free from all encumbrances. Stating that the Defendants failed to make arrangements to discharge the mortgage, the suit for specific performance came to be filed. However, it is admitted that before filing the present suit for specific performance, the Appellant earlier filed a suit in OS.No.2199 of 2004, on the file of the Principal District Munsif, Coimbatore, for permanent injunction, against the same Defendants, restraining them from in any manner encumbering the suit property and from disturbing the possession and enjoyment of the suit property by the Plaintiffs. It is the case of Appellant that they reserved their right to file a suit for specific performance of the agreement, dated 29.01.2003, even in the previous suit and that the Plaintiff had no cause of action to file a suit for specific performance, seeking execution of a sale deed, as the mortgage loan was not discharged.
c) During the pendency of the suit, the 3rd Defendant, who is the 1st Respondent in this appeal, filed an application in IA.No.648 of 2006, for rejection of the plaint under Order 7 Rule 11 of CPC only on the ground that the suit for specific performance in OS.No.549 of 2004, is barred 3/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 under Order 2 Rule 2 of CPC. The Trial Court allowed the said application filed under Order 7 Rule 11 of CPC and rejected the plaint, holding that the second suit is not maintainable in terms of Order 2 Rule 2 of CPC. Aggrieved by the same, the above appeal is preferred by the 1st Plaintiff.
3. The learned counsel for the Appellant submitted that the Trial Court decided the issue, without understanding the scope and ambit of Order 2 Rule 2 of CPC and the decided cases. The learned counsel then submitted that the cause of action for filing a suit for injunction is entirely different from the cause of action for filing a suit for specific performance and that therefore, the suit for injunction filed with an intention to prevent alienation and to protect possession of the Plaintiff is not hit by the provisions of Order 2 Rule 2 of CPC. The learned counsel then pointed out that the suit agreement specifically provides time after 29.09.2004 to pay further amount for discharge of the mortgage and to seek performance. Since the time granted to the parties to perform their mutual obligations under the agreement had not expired, the learned counsel submitted that the suit for specific performance can be filed only when the time comes for payment of balance. The learned counsel for the Appellant also relied upon a few judgements of this Court and the Honourable Supreme Court in support of his arguments.
4. The appeal was contested by the 3rd Defendant, who has filed the application in IA.No.648 of 2006 in OS.No.549 of 2004 before the Trial Court, under Order 7 Rule 2 of CPC, to reject the plaint.
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5. The learned counsel for the contesting Respondent, on the other hand, referred to the plaint in OS.No.2199 of 2004 and the specific averments in the earlier plaint to the effect that the Defendants committed breach of contract and thereby the Plaintiff was put to serious trouble in proceeding further with the sale agreement. The learned counsel also relied upon a few judgements to support his arguments.
6. Having regard to the pleadings, evidence and the submissions of the learned counsel on either side, the following point arises for consideration in this appeal.
● Whether the plaint in OS.No.549 of 2004 is liable to be rejected, as the suit is barred under Order 2 Rule 2 of CPC?
7. It is well settled that the Court is not supposed to travel beyond the pleadings in the plaint when an application is filed under Order 7 Rule 11 of CPC. It is not in dispute that the 1st Defendant is the owner of the property, measuring an extent of 6.40, which is the subject matter of suit agreement. As per the agreement, the total sale consideration was Rs.25,60,000/-. A sum of Rs.1,50,000/- is acknowledged as advance, as per plaint averments. Out of the balance amount, Rs.24,10,000/-, it is stated that the Plaintiffs agreed to discharge the mortgage, by paying a further sum of Rs.15,00,000/-, within a period of 20 months from the date of the agreement. The remaining balance of Rs.9,10,000/- was required to be paid within three months from the date of discharge of the mortgage.
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8. In the plaint in OS.No.2199 of 2004, it is stated as follows:-
“6. At this juncture, the Plaintiffs submit that it was all along ready and willing to complete the sale by paying balance sale price, provided the Defendants have to take steps to discharge the mortgage loan over the said property. Whereas, the Plaintiffs after the sale agreement, moved with the Defendants to take early steps to get the mortgage discharged by paying the mortgage loan amount and thereby to make the property free of all encumbrances. In fact, the Defendants though initially at the time of execution of the sale agreement agreed, thereafter dodged every now and then.
7. The Plaintiffs submit that though it is in possession of the suit property, it could not effectively deal with the same towards its improvement due to existence of encumbrance of mortgage over the said property. Thus despite the attempts made by the Plaintiffs, the Defendants did not evince any interest to complete the sale. Even the Defendants failed to make arrangement to have discussion with the mortgagee of the Defendants. Thus, the Plaintiffs were put to serious trouble in proceeding further with respect of the said sale agreement.
8. Further, as the period of sale agreement till exists and the first period of 20 months expires only on 29.09.2004, the Plaintiffs at present has no cause of action to file the suit for specific performance by paying ad-valorem Court fee seeking the relief for execution of sale deed pertaining to the suit property. Besides, there exists a mortgage loan over the said property which also another encumbrance and the Plaintiff also does not know the mortgage.
9. While things stand thus, now the Defendants 1 and 2 have been making attempts to alienate the suit property behind the back of Plaintiffs by suppressing the existence of sale agreement dated 29.01.2003 executed between the Plaintiffs and the Defendants, for which the Defendants are not entitled.”
9. In the cause of action paragraph of the plaint in OS.No.2199 of 2004, it is stated as follows:-
“13. The cause of action for the suit arose on 08.03.1990 when the suit property was purchased by the Defendants, on 29.01.2003, when the Defendants entered into sale agreement with the Plaintiffs to sell the suit property and on earlier dated when the advance of Rs.1,50,000/- paid by the Plaintiffs and thereby the Defendants delivered vacant possession of the suit property on 29.01.2003 and 6/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 on subsequent dates when the Defendants continuing possession of the suit property, on 18.04.2004 when the Defendants attempted to dispossess the Plaintiffs with intent to cause encumbrance over the suit property by attempting to alienate the same which was thwarted and the Plaintiffs apprehension that the Defendants may at any time to dispossess the Plaintiffs and the property situated all at Coimbatore within the jurisdiction of this Honourable Court.”
10.Therefore, it is not stated in the first plaint as well as in the cause of action paragraph, about the repudiation or breach of contract by the Defendant.
11.Whereas in the plaint in OS.No.549 of 2004, the Plaintiffs has stated as follows:-
“7. The Plaintiffs submit that though they are in possession of the suit property, it could not effectively deal with the same towards its improvement due to existence of encumbrance of mortgage over the said property. Thus, despite the attempts made by the Plaintiffs, the Defendants 1 and 2 did not evince any interest to complete the sale. Even the Defendants 1 and 2 failed to make arrangement to have discussion with the mortgagee of the Defendants and also dragged the issue. Thus, the Plaintiffs were put to serious trouble in proceeding further with respect of said sale agreement.
8. Further, as the period of sale agreement existed and the first period of 20 months expires only on 29.09.2004, the Plaintiffs had no cause of action to file the suit for specific performance seeking relief for execution of sale deed pertaining to suit property at first. Besides, there existed a mortgage loan over said property which also another encumbrance and the Plaintiffs also do not know the mortgagee.
While things stand thus, as the Defendants 1 and 2 made attempts to alienate the suit property behind the back of the Plaintiffs by suppressing the existence of the sale agreement dated 29.01.2003 executed between the Plaintiffs and the Defendants, for which the Defendants are not entitled, the Plaintiffs filed a suit in OS.No.2199 of 2004 on the file the learned Principal District Munsif of Coimbatore seeking relief restraining the Defendants from in any way encumbering the suit property and also not to disturb the peaceful possession and enjoyment of the suit property by the Plaintiffs by reserving a right to file a suit for specific performance of sale agreement dated 29.01.2003. The learned Principal District Munsif Court was also pleased to grant interim orders in IA.No.1174 of 2004 and IA.No.1175 of 2004 to that effect.
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9.Whereas, after the suit, the Defendants 1 and 2 entered into appearance by filing counter statements that the other Director, namely, V.M.Sundaram was died and also sold the property to third Defendant herein and thus, the Plaintiffs came to know that they were defrauded by the Defendants. The learned Principal District Munsif also posted the case to 09.08.2004 for orders in aforesaid IAs.
10. The Plaintiffs also submit that the Defendants taking advantage that no sale deed was executed in favour of the Plaintiffs, by suppressing the said sale agreement, made attempts to sell the suit property to third party in order to cause encumbrance over the suit property for which the Defendants are not entitled. A police complaint was lodged on 23.04.2004 against the 2nd Defendant to that effect at Thudiyalur Police Station. Even a step more on 18.06.2004 the Defendant 1 and 2 made attempts to dispossess the Plaintiffs with ulterior motive to gain illegally, which was duly thwarted by the intervention of neighbours. The Plaintiff's personal efforts to meet the Defendants in person to solve the issue also proved futile. The whereabouts of the third Defendant also could not able to find out by the Plaintiffs and subsequently, after filing the suit OS.No.2199 of 2004 came to know that he was died. Hence, the Plaintiffs had no other option except to file a suit for permanent injunction in OS.No.2199 of 2004 to restrain the Defendants from in any way selling or encumbering or alienating the suit property to any persons and also not to interfere with the peaceful possession and enjoyment of the suit property by Plaintiffs since such apprehension still exists.
11. The Plaintiffs submit that after filing the suit in OS.No.2199 of 2004, they came to know that the Defendants 1 and 2 defrauded the Plaintiff and also the 3rd Defendant having known the existence of sale agreement between the Plaintiffs and the Defendants 1 and 2 created concocted documents of alleged sale deed for which they are not entitled. The alleged sale deed as produced by the 3rd Defendant itself is well evident that it was not a bona fide purchaser.”
12.Further in the cause of action paragraph 15 in the plaint in OS.No.549 of 2004, it is stated as under:-
“15. The cause of action for the suit arose on 08.03.1990 when the suit property was purchased by the Defendants 1 and 2 on 29.01.2003, when the Defendants entered into sale agreement with Plaintiffs to sell suit property and on earlier dates when the advance money of Rs.1,50,000/- paid by the Plaintiffs and thereby the Defendants delivered vacant possession of the suit property on 8/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 29.01.2003 and on subsequent dates when the Defendants are continuing in possession of the suit property on 1806.2004, when the Defendants attempted to dispossess the Plaintiffs with intend to cause encumbrance over suit property by attempting to alienate the same which was thwarted and the Plaintiff's apprehension that the Defendants may at any time dispossess Plaintiffs and thereby the suit in OS.No.2199 of 2004 was filed on subsequent dates when the Plaintiffs came to know that the Defendants all colluded with each other and thereby created concocted documents to defeat the right of Plaintiffs to seek specific performance of the agreement and the property situated all the Coimbatore within the jurisdiction of this Honourable Court.”
13.The Plaintiff has stated that on 18.06.2004, the Defendants attempted to dispossess the Plaintiff with an intention to cause encumbrance over the suit property and also stated that the Plaintiffs came to know that the Defendants have colluded with each other and thereby created concocted documents to defeat the rights of the Plaintiffs to seek specific performance of the agreement.
14.From the averments in the plaint, this Court has no difficulty to hold that the only change in the subsequent plaint is about the execution of the sale deed by the Defendants 1 and 2 in favour of the 3rd Defendant. The allegations against the Defendants 1 to 3 about the collusion to defraud the Plaintiffs are specifically stated in the second plaint, while praying for specific performance of the agreement against the Defendants 1 and 2 and the subsequent purchasers. Whereas the first suit is against the vendors. Even though the subsequent purchasers were also impleaded later, the suit for injunction is only on the averment that the Plaintiff was in possession, pursuant to the agreement and that possession is sought to be disturbed by the Defendants. In the first plaint, there is no averment as to the repudiation of 9/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 the contract. Whereas in the second plaint, the Plaintiff has stated that the property has been sold in favour of the third parties and that the 3rd Defendant has purchased the property knowing fully well the existence of the suit agreement. Above all, it it stated that there is yet another mortgage loan, which is not disclosed by the Defendants in both the plaints.
15.This Court and the Honourable Supreme Court had occasions to deal with similar situation and distinguished the cause of the action for filing a suit for bare injunction and the cause of action for filing a suit for specific performance.
16.In 2022 6 CTC 419 (R.Kasilingam Vs. S.P.Vadivelu and others), one of us has dealt with a similar situation and explained the position with reference to particular facts, relying upon the judgement of the Honourable Supreme Court reported in 2015 5 SCC 223 (Rathnavathi and another Vs. Kavita Ganashamdas). In 2022 6 CTC 419, it was held as under:-
“38. The object of Order 2 Rule 2 of CPC is to avoid multiplicity of proceedings. Whenever a plaintiff files a suit on the basis of cause action referred to in the plaint, it is his/her legal obligation to seek every relief he is entitled to against the defendant / defendants which had accrued to him on the cause of action alleged in the plaint. If a person is entitled to two or more reliefs on the cause of action shown in the plaint, he is entitled to claim both the reliefs. However, if he relinquishes any portion of the relief which he is entitled to on the cause of action pleaded, he cannot file a second suit for further relief on the same cause of action before any other Court. It has been held by the Honourble Supreme Court in several cases that the sine qua non for invoking Order 2 Rule 2[2] of CPC against the plaintiff is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff in the previous suit on the same cause of action pleaded in the previous suit against the defendant and yet, the plaintiff did not claim. In the present case, the plaint that was filed by the plaintiff/appellant herein in the previous suit in OS.No.432/2003 is 10/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 marked as Ex.A11.
39. The learned counsel for the appellant relied upon the judgement of the Supreme Court in the case of Rathnavathi and Another V. Kavita Ganashamdas reported in 2015 [5] SCC 223, wherein the Hon-ble Supreme Court has held as follows:-
“26. One of the basic requirements for successfully invoking the plea of Order 2 Rule 2 CPC is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the defendants (appellants herein) are not entitled to raise a plea of bar contained in Order 2 Rule 2 CPC to successfully non~suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants.
27. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order 2 Rule 2 CPC could be allowed to be raised by the defendants and how it was sustainable on such facts.
28. We cannot accept the submission of the learned Senior Counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order 2 Rule 2 CPC.
29. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order 2 Rule 2 CPC.
It is the cause of action which is material to determine the applicability of bar under Order 2 Rule 2 CPC and not merely the pleadings. For these reasons, it was not necessary for the plaintiff to obtain any leave from the court as provided in Order 2 Rule 2 CPC for filing the second suit.
30. Since the plea of Order 2 Rule 2 CPC, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, 11/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the legal provisions applicable for grant of reliefs in both the suits.
31. In the light of foregoing discussion, we have no hesitation in upholding the finding of the High Court on this issue. We, therefore, hold that the second suit (OS No. 2334 of 2000) filed by the plaintiff for specific performance of agreement was not barred by virtue of the bar contained in Order 2 Rule 2 CPC.”
40. However, the learned counsel for the contesting respondents relied upon the judgement of the Hon-ble Supreme Court in the case of Vurimi Pullarao Vs. Vemari Vyankata Radharani reported in AIR 2020 SC 395, wherein the Hon-ble Supreme Court has held as follows:-
“13. On the other hand, supporting the view which weighed with the trial court, the appellate court and the High Court, it has been urged by Mr Satyajit A Desai, that the plaint in the earlier suit contains a clear reference to the agreement to sell, to the payment of consideration and to the notice of performance that was issued by the plaintiff. Not only this, para 2 of the plaint contained a specific recital of the fact that the plaintiff intended to institute a suit for specific performance before the Court of the Civil Judge, Senior Division, Khamgaon. Despite this, it was submitted that the plaintiff omitted to seek leave of the court under Order 2 Rule 2(3). This, it was submitted, must necessarily result in the bar under the provision being attracted. The learned counsel submitted that the distinction with the situation as it arose before the Constitution Bench in Gurbux Singh [Gurbux Singh v. Bhooralal, AIR 1964 SC 1810] is that in the present case, the plaint in the earlier suit was duly marked as an exhibit without any objection from the plaintiff. The learned counsel in that regard has also relied upon on the decisions of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. [Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd., (2013) 1 SCC 625 : (2013) 1 SCC (Civ) 679] and Pramod Kumar v. Zalak Singh [Pramod Kumar v. Zalak Singh, (2019) 6 SCC 621 : (2019) 3 SCC (Civ) 370] .
14. Order 2 Rule 2 is extracted below:
?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.12/22
https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 (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 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.?
15. Order 2 Rule 2(1) is premised on the foundation that the whole of the claim which a plaintiff is entitled to make in respect of a cause of action must be included. However, it is open to the plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the court. Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation. Hence, a plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim. A plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2). Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a plaintiff who omits to sue for all the reliefs, without the leave of the court, shall not afterwards sue for any relief so omitted. The leave of the court will obviate the consequence which arises under Order 2 Rule 2(3). In the absence of leave being sought and granted, a plaintiff who has omitted to sue for any of the reliefs to which they were entitled to sue in respect of the same cause of action would be barred from subsequently suing for the relief which has been omitted in the first instance. The grant of leave obviates the consequence under Order 2 Rule 2(3). But equally, it is necessary to note that Order 2 Rule 2(2) does not postulate the grant of leave. In other words, a plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished.--
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41. The term -cause of action- should be understood to mean every material or the bundle of facts that are necessary leading to the relief prayed for in a suit. For proper appreciation of the legal issue, it is relevant to refer to the cause of action pleaded in two plaints, namely, the plaint in OS.No.432/2003 and the plaint in OS.No.27/2007. The cause of action pleaded in OS.No.432/2003 reads as follows:-
“”VIII.The cause of action for the suit arose on 22.11.2002 the date on which the plaintiff and defendant entered into a sale agreement with regard to the suit property and the plaintiff has paid a sum of Rs.10,00,000/~ as advance and part payment of the sale consideration and the plaintiff was put in possession of the suit property on the same date, and on 07.11.2003 when the defendant attempted to interfere with the plaintiff-s peaceful possession and enjoyment of the suit property and in all subsequent dates when the threat continues all at punjai Lakkapuram village, Erode Taluk, within the jurisdiction of this Honourable Court wherein the suit property is situate.
The cause of action paragraph in OS.No.27/2007 reads as follows:-
“12.Cause of suit arose on 22.11.2002 when the 2nd defendant as the Power Agent of the 1st defendant entered into written agreement of sale with plaintiff and received Rs.10,00,000/~ as advance and part of sale consideration on 23.04.2003 when the 2nd defendant on behalf of the 1st defendant received a further sum of Rs.2,00,000/~ as further advance and further part of sale consideration, on 10.12.2003 when the plaintiff issued a legal notice calling upon the defendants to perform their part of the Agreement dated 22.12.2002 and on all subsequent dated when the defendants failed to execute the sale deed at Lakkapuram Village, Erode, Taluk, where the suit property is situated within the jurisdiction of this Hon-ble Court.
42. Before filing the previous suit, this Court finds no material to infer that the appellant herein had any knowledge of possible repudiation of the Sale Agreement by 1st defendant. Therefore, in the previous suit, the appellant has simply referred to the Sale Agreement and possession being handed over to him on the date of Agreement and pleaded about the attempt being made by the defendants to interfere with the appellant-s peaceful possession and enjoyment of the suit property on 07.11.2003. However, in the suit for specific performance in OS.No.12/2007, the appellant has referred to the legal notice issued by him and the failure of defendants to execute the Sale Deed 14/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 as per the Agreement. Therefore, this Court is of the firm view that the cause of action alleged in the previous suit seeking the prayer for injunction is entirely different and that the appellant could not have sought for specific performance at the time when the previous suit was filed, if the Court has to test the real cause of action as stated in the plaint.”
17. The first suit is filed even before the time for performance is not expired. Though there is no bar to file a suit for specific performance, even before the time for performance is not expired, the cause of action for specific performance normally arose only when the vendors repudiate the contract or fail to perform their part of the contract. Though this Court see no difference in the second plaint except the event of sale by the Defendants 1 and 2 in favour of the 3rd Defendant, this Court finds that the issue whether the Plaintiff was expected to file a suit for specific performance even on the date when he filed the suit for permanent injunction, can be concluded only by considering the express terms of the agreement and the understanding of the parties before and at the time of entering into the suit agreement. In the present case, the suit agreement is not even produced and the suit agreement has not been considered by the Trial Court.
18.In 2018 6 SCC 733 (Sucha Singh Sodhi (dead) by LRS Vs. Baldev Raj Walia and another), the Honourable Supreme Court, following its earlier judgement reported in 2015 5 SCC 223 (Rathnavathi Vs. Kavita Ganashamdas), has held as follows:-
“29. Our answer to the aforementioned question is in favour of the plaintiffs (appellants) and against the defendants (respondents). In other words, our answer to the aforementioned question is that the plaintiff could not claim the relief of specific performance of agreement against the defendants along with the relief of permanent injunction in the 15/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 previous suit for the following reasons:
29.1. First, the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa. In other words, a plaintiff cannot claim a relief of specific performance of agreement against the defendant on a cause of action on which he has claimed a relief of permanent injunction.
29.2. Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering in the plaintiff's possession over the suit premises accrues when Defendant 1 threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1(c) of the Code which deals with the grant of injunction.
The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (see Part VII Articles 85, 86 and 87 of the Limitation Act). On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date (see Part II Article 54 of the Limitation Act).
29.3. Third, when both the reliefs/claims, namely, (1) permanent injunction, and (2) specific performance of agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of action.
30. This Court in Rathnavathi v. Kavita Ganashamdas [Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC (Civ) 736] had the occasion to examine this very question on somewhat similar facts in detail. This Court after taking into account the earlier decisions of this Court which dealt with this question held in paras 22 to 31 that bar contained in Order 2 Rule 2 of the Code on such facts is not attracted against the plaintiff so as to disentitle him from filing the subsequent suit to claim specific performance of agreement against the defendants in relation to the suit property.
31. We apply the law laid down in Rathnavathi [Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC (Civ) 736] and hold 16/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 that the suit filed by the original plaintiff for specific performance of agreement against the respondents (defendants) is not barred by Order 2 Rule 2 of the Code and is held maintainable for being tried on merits.”
19.The learned counsel for the Respondents relied upon the judgement of the Honourable Supreme Court reported in 2020 14 SCC 110 (Vurimi Pullarao Vs. Vemari Vyankata Radharani), particularly paragraphs 16 to 20, which read as under:-
“16. The rationale underlying in Order 2 Rule 2 has been dealt with in several judgements including in the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian [Mohd. Khalil Khan v. Mahbub Ali Mian, 1948 SCC OnLine PC 44 : (1947-48) 75 IA 121] , the Privy Council held : (SCC OnLine PC) “(1) The correct test in cases falling under Order 2 Rule 2, is ‘whether the claim in the new suit is, in fact, founded upon a cause of action distinct from that which was the foundation for the former suit’.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement (3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.” (emphasis in original)
17. In order to attract the applicability of the bar enunciated under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arisen to the plaintiff when enforcement of the first claim was sought before the court.
18. In Virgo Industries (Eng.) (P) Ltd. [Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd., (2013) 1 SCC 625 : (2013) 1 SCC (Civ) 679] , the provisions of Order 2 Rule 2 came up for consideration 17/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 before a two-Judge Bench of this Court. The Court observed : (SCC p. 631, para 10) “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.”
19. These principles have been reiterated in the more recent decision in Pramod Kumar [Pramod Kumar v. Zalak Singh, (2019) 6 SCC 621 :
(2019) 3 SCC (Civ) 370] .
20. In the present case, the earlier suit for injunction was instituted on 30-10-1996. Para 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26-10-1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the defendant to perform the contract. Indeed, the plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26-10-1995. Under the agreement dated 26-10- 1995, time for completion of the sale was reserved until 25-10-1996. Notice of performance was issued on 11-10-1996 to which the defendant had replied on 13-10-1996. The cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract. On 30-10-1996 when the suit for injunction was instituted, the plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which para 2 of the plaint has been reproduced in the earlier part of the judgement) and the cause of action for the subsequent suit. Yet, as the record indicates, the plaintiff omitted to sue for specific performance. This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted.”
20.Again the issue has been considered by the Honourable Supreme Court in 2013 1 SCC 625 (Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited), wherein the Honourable Supreme Court has held as follows:-
18/22
https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 “15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in CS. Nos. 831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27-7-2005 had not elapsed. According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the issuance of legal notice dated 24-2-2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court. We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as “the question of a suit being premature does not go to the root of the jurisdiction of the Court” as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India [(2005) 4 SCC 315].
16. In Vithalbhai (P) Ltd. case [(2005) 4 SCC 315] this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless “there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event”, the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts.”
21.In the present case, the parties have not produced the sale agreement even though the execution of suit agreement is not in dispute. As per the plaint averments, the Defendants 1 and 2 have agreed to sell the suit property at the cost of Rs.4 lakhs per acre and received an advance of Rs.1,50,000/- on the date of the agreement. It was further stated that the Plaintiffs agreed to pay a sum of Rs.15 lakhs within a period of 20 months from the date of the sale agreement to the mortgagee of the suit property through the Defendants 19/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 1 and 2 and the remaining balance of Rs.9,10,000/- was to be paid within three months thereafter to the Defendants 1 and 2.
22.The suit was filed on 09.08.2004 and the previous suit was filed on 28.06.2004, three months prior to the expiry of time granted for performance. The prayer can be amended for an alternative prayer for refund of advance amount. In paragraph 8 of the plaint, it it stated as follows:- “Besides, there existed another encumbrance and the Plaintiffs also do not know the mortgagee. ” If there is an undisclosed mortgage, the Plaintiff as purchaser may compel the vendor to redeem the mortgage and to obtain a valid discharge in terms of Section 13(1)(c) of the Specific Relief Act. On account of undisclosed mortgage, the right of the Plaintiff to seek specific performance along with appropriate relief has to be gone into. In the said circumstances, the plaint need not be rejected at the threshhold on the ground of bar under Order 2 Rule 2 of CPC. It will be appropriate for the Trial Court to deal with all other issues jointly. The impugned order, rejecting the plaint, at this stage without going into all other issues, may result in failure of justice. Hence, the impugned order dated, 20.12.2007 made in IA.No.648 of 2006 in OS.No.549 of 2004, by the Additional District Sessions Judge (FTC-III) Coimbatore is set aside and the suit stands restored. The suit shall be disposed of, on merits by the Trial Court on all issues including the issue relating to bar under Order 2 Rule 2 of CPC. It is made clear that the lower Court shall dispose of the suit purely, on merits, uninfluenced by any one of the observations made by this Court in this order, touching the 20/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 merits of the contentions raised by the parties.
23.In fine, this Appeal Suit is allowed to the extent indicated above. No costs.
(S.S.S.R.J.) & (A.A.N.J.) 01.02.2023 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The Additional District Sessions Judge (FTC-III) Coimbatore.
2. The Record Keeper, VR Section, Madras High Court 21/22 https://www.mhc.tn.gov.in/judis AS.No.839 of 2009 S.S.SUNDAR, J.
and A.A.NAKKIRAN Srcm AS.No.839 of 2009 01.02.2023 22/22 https://www.mhc.tn.gov.in/judis