Madras High Court
N.Ravindran vs V.Ramachandran on 14 March, 2011
Equivalent citations: AIR 2011 MADRAS 136, (2011) 5 MAD LJ(CRI) 625 (2011) 103 ALLINDCAS 375 (MAD), (2011) 103 ALLINDCAS 375 (MAD), (2011) 103 ALLINDCAS 375 (MAD) (2011) 5 MAD LJ(CRI) 625, (2011) 5 MAD LJ(CRI) 625
Author: R.Banumathi
Bench: R.Banumathi, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.03.2011
CORAM
THE HON'BLE MRS. JUSTICE R.BANUMATHI
and
THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH
O.S.A.NO.379 OF 2008
N.Ravindran .. Appellant
Vs.
V.Ramachandran .. Respondent
Prayer: Original Side Appeal is filed under Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of Letters Patent against the order dated 30.7.2008 made in Application No.2632 of 2008 in C.S.No.264 of 2007 on the file of this Court.
For appellant : Mr.K.Alagirisamy,Sr.Counsel
for
Mr.J.R.K.Bhavanandam
For respondent : Mr.N.R.Chandran,Sr.Counsel
for
Mr.V.Chandrakanthan
JUDGMENT
R.BANUMATHI,J.
Being aggrieved by the order of allowing the application under Order XIV Rule 8 of Original Side Rules read with Or VII Rule 11 CPC dated 30.7.2008 in Application No.2632 of 2008 in C.S.No.264 of 2007 thereby rejecting the appellant/plaintiff's suit for specific performance, the plaintiff/appellant has preferred this appeal. For the convenience, the parties are referred to as arrayed in the suit.
2. The suit is one for specific performance of agreement of sale of immovable property, for damages and permanent injunction. Admittedly, no regular agreement of sale was entered into between the plaintiff and the defendant. Case of plaintiff is that in January, 1994, he entered into an understanding with the defendant under which defendant agreed to sell his property in Old No.40, New No.14, Venkatesan Street, T.Nagar, Chennai- 17 measuring an extent of 5700 sq.ft. for a total consideration of Rs.46,00,000/-. In pursuance to the said understanding, plaintiff paid a sum of Rs.1,00,000/- on 10.1.1994 and another sum of Rs.6,00,000/- on the same day (10.1.1994). In evidence of the same, on 10.1.1994 defendant issued a stamped receipt, which is stated to contain terms and conditions relating to the sale of the property. Between 10.1.1994 to 23.6.1994, the plaintiff has paid a total amount of Rs.33,00,000/-. The plaintiff claims that in part performance of the contract of sale, he was put in possession of the property in May, 1995. According to the plaintiff, he has always been ready and willing to pay the balance sale consideration of Rs.13,00,000/- and get the sale deed executed, but the defendant failed to complete the transaction; but has engineered the scheme to dispossess the plaintiff and dispose of the property to some third party thereby defeating the valuable rights of the plaintiff.
3. The plaintiff has further averred that in November 2002, the defendant deputed several persons to inspect the suit property and on being contacted, the defendant informed the plaintiff that he has proposed to do certain modifications in the suit property. In November 2002, one Mohan Kumar claiming to be a builder called upon the plaintiff and threatened him to vacate the suit premises stating that he has proposed to purchase the property and to promote the same by putting up flats. The plaintiff claims to have lodged a police complaint in T.Nagar Police Station on 2.12.2002 and later filed a civil suit in O.S.No.6514 of 2002 for permanent injunction restraining the defendant, his men, agents and servants from dealing with the suit property and also to protect the possession of the plaintiff. The said suit was dismissed for default; but according to the plaintiff, he filed an application for restoration in I.A.No.21531 of 2005 and the same is said to be pending. The plaintiff admits that the defendant has also filed O.S.No.300 of 2006 on the file of XVI Assistant Judge, City Civil Court, Chennai seeking recovery of possession of the plaint schedule property.
4. Alleging that the defendant has no inclination to fulfil his obligation in execution of the sale deed and that the plaintiff is always ready and willing to get the sale deed executed after paying the balance sale consideration of Rs.13,00,000/-. The plaintiff has filed the suit C.S.No.264 of 2007 for specific performance to direct the defendant/respondent to execute the sale deed. In the said suit, the plaintiff has also prayed for damages of Rs.5,00,000/- and also future damages and also for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the property.
5. Defendant has filed application A.No.2632 of 2008 under Order XIV Rule 8 of Original Side Rules read with Order VII Rule 11(d) of C.P.C. to reject the plaint. Respondent sought for rejection of plaint on the ground that the suit is barred by limitation and also in view of filing of earlier suit O.S.No.6514 of 2002, the suit is barred under Order II Rule 2 C.P.C.
6. Upon consideration of the contentions of both the parties, referring to Paragraphs 19 and 21 of the plaint and also paragraph 23 of the plaint, which refers to the cause of action, learned single Judge held that there is a clear reference to filing of the suit in O.S.No.6514 of 2002 and therefore while considering application under Or 7 Rule 11 C.P.C the plaint in O.S.No.6514 of 2002 could be looked into. Referring to the plaint averments, the learned single Judge held that cause of action for institution of the suit has arisen in November 2002, whereas the present suit C.S.No.264 of 2007 has been filed in December 2006 and the same is barred by limitation. The learned single Judge further held that the plaintiff was aware of the denial of execution of the agreement even in November 2002 in the earlier suit O.S.No.6514 of 2002 and while so, the plaintiff has omitted to file the suit for specific performance, the learned single Judge held that the suit O.S.No.6514 of 2002 is barred under Order II Rule 2 C.P.C. Challenging the order rejecting the plaint, the plaintiff has come forward with the appeal.
7. Heard Mr.K.Alagiriswamy, learned Senior Counsel appearing for the plaintiff/appellant and Mr.N.R.Chandran, learned Senior counsel appearing for the respondent/defendant.
8. While finding that the cause of action for filing the suit for specific performance arose in November 2002, the learned single Judge in extenso referred to the averments in O.S.No.6514 of 2002 earlier filed by the appellant/plaintiff and the learned single Judge rejected the plaint mainly on the two grounds:- (i) suit is barred by limitation and (ii) suit is barred under Order II Rule 2 C.P.C. The learned Senior Counsel for appellant/plaintiff contended that the object of Order VII Rule 11 C.P.C. is to keep out of Courts frivolous litigations and while considering the application, Court has to find out only from the allegations made in the plaint and not beyond plaint averments to find out whether plaintiff's case is false or frivolous or barred under any law.
9. Onbehalf of the respondent/defendant, learned Senior Counsel Mr.N.R.Chandran submitted that when specific reference has been made to O.S.No.6514 of 2002 and when the plaintiff had also filed written statement filed by the defendant in O.S.No.6514 of 2002 and the Order dated 5.2.2004 in C.R.P.No.2829 of 2003 as plaint documents, had deliberately omitted to file the plaint in O.S.No.6514 of 2002 and therefore the learned single Judge was right in looking into the plaint in O.S.No.6514 of 2002 which was produced by the respondent/defendant.
10. The well settled position is that while considering the application under Order VII Rule 11 C.P.C., Court is not required to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law.
11. The scope of Order VII Rule 7 C.P.C. has been elaborately considered in Sopan Sukhdeo Sable v. Asstt. Charity Commr.,(2004) 3 SCC 137, wherein the Supreme Court held as under:
"10. In Saleem Bhai v. State of Maharashtra ((2003) 1 SCC 557) it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal((1998) 2 SCC 70) it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467)
13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
14. In Raptakos Brett & Co. Ltd. v. Ganesh Property ((1998) 7 SCC 184) it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable.
15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities."
12. The above Sopan Sukhdeo Sable case, (2004) 3 SCC 137 has been referred to in the subsequent judgment - Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510. As held by the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510), the real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
13. Keeping in view the aforesaid principles, Court has to find out whether the learned single Judge was right in rejecting plaintiff's suit for specific performance as barred under Order VII Rule 11(d) C.P.C. Plaintiff's suit for specific performance is based on the alleged understanding between the plaintiff and the defendant in January 1994 based on which the plaintiff is said to have paid advance of Rs.33,00,000/- out of the total sale consideration of Rs.46,00,000/-. In the plaint, the plaintiff has averred that he was always ready and willing to perform his obligation to pay the balance consideration of Rs.13,00,000/-. Alleging that inspite of assurance the defendant has not come forward to fulfil his obligation, in paragraph No.9 of the plaint, the plaintiff has averred as follows:
"On an enquiry it was learnt that the defendant had deputed several persons to inspect the suit property in the month of November 2002."
14. In Para 10 of the plaint, Plaintiff has further averred that one Mohan Kumar, claiming to be a builder called upon the plaintiff in the last week of November 2002, and threatened him to vacate the suit premises as he proposed to purchase the property to put up several flats. In Para 11 of plaint, the plaintiff has averred that followed by the threat, the plaintiff lodged a Police Complaint with the Inspector of Police, T.Nagar, Chennai.17 on 2.12.2002. In Para 12 of the plaintiff, the plaintiff has referred to the threats by phone calls and filing of suit O.S.No.6514 of 2002 and averred as under:-
12. ..... Several telephone calls were received from the defendant's representatives threatening the plaintiff to vacate forthwith, as otherwise serious consequences would follow. Left with no option the plaintiff was obliged to approach the City Civil Court by filing O.S.No.6514/02 for a permanent injunction restraining the defendant, his men, agents and subordinates from dealing with the suit property more fully described in the schedule hereunder and also to protect the possession of the plaintiff. In view of the part performance of the contract under Section 53(a) of the T.P.Act, the plaintiff is entitled to protect his possession of the suit property from the threat caused by the defendant."
15. The defendant has filed written statement in O.S.No.6514 of 2002 on 17.11.2003. The defendant had also filed an application to reject the plaint in O.S.No.6514 of 2002, which came to be dismissed and the same was challenged before the High Court in C.R.P.No.2829 of 2003. It is pertinent to note that even though the plaintiff has filed written statement filed by the defendant in O.S.No.6514 of 2002 and the copy of the order in C.R.P.No.2829 of 2003 as plaint documents under Order VII Rule 14(1) of C.P.C, the plaintiff has conveniently omitted to file copy of the plaint in O.S.No.6514 of 2002. By perusal of the plaint averments in C.S.No.264 of 2007, it is clear that the plaintiff has made repeated reference to the filing of the plaint in O.S.No.6514 of 2002. When the plaintiff has made repeated reference to the plaint in O.S.No.6514 of 2002 and also filed the written statement filed by the defendant in the said suit as a document along with the plaint in C.S.No.264 of 2007 and when plaintiff had not chosen to file the plaint in O.S.No.6514 of 2002, it cannot be said that the learned single Judge erred in looking into the plaint in O.S.No.6514 of 2002.
16. It cannot be contended that the learned single Judge committed an error in taking into account the materials (plaint in O.S.No.6514 of 2002) to hold that the plaintiff's case is barred by limitation. As pointed out by the learned single judge, when the plaintiff's case prima facie appears to be vexatious the Court is not powerless to examine the averments with reference to the plaintiff's documents. Of course, it is not permissible to cull out one sentence here and one sentence there. But when specific reference has been made to the plaint in O.S.No.6514 of 2002, in our considered view, the learned single Judge was justified in looking into the plaint in O.S.No.6514 of 2002.
17. Next point falling for consideration is, whether the plaint can be rejected on the ground that the suit is barred by limitation. As pointed out earlier, in paragraph Nos.9 and 10 of the plaint, the plaintiff has averred that the defendant deputed several persons to inspect the property in the month of November 2002 and has also sent one Mohan Kumar claiming to be a builder, who threatened to vacate the plaintiff stating that he has proposed to purchase the property to put up several flats. In paragraph No.23 cause of action, plaintiff has clearly averred that "in the last week of November 2002, one Mohan Kumar, builder informed the plaintiff that he is likely to purchase the suit property." By referring to the plaint averments in paragraph Nos.9, 10, 22 and 23 and also the plaint in O.S.No.6514 of 2002, the learned single Judge held (i) that there was refusal of performance by the defendant and (ii) that the plaintiff had notice of such refusal even in November/December 2002. The learned single Judge further held that the threat posed by the defendant in November/December 2002 was two fold viz., (i) to dispossess the plaintiff; and (ii) to enter into an agreement of sale with a builder to put up flats.
18. As pointed out by the learned single Judge, even in November/December 2002, the plaintiff had notice that the defendant is trying to dispossess the plaintiff and that the defendant has also entered into an agreement with a builder to put up flats. Even then the plaintiff had not chosen to file the suit for specific performance, but had filed only the suit for permanent injunction O.S.No.6514 of 2002 to restrain the defendant from dealing with the property and also to protect the possession of the plaintiff. The plaintiff had filed the suit for specific performance only in November 2006, which the learned single Judge held, is barred by limitation.
19. Order VII Rule 11 clause (d) applies only when the suit appears from the statement in the plaint to be barred by any law. The learned Senior Counsel for appellant mainly contended that the question of limitation is a mixed question of fact and law and therefore the plaint cannot be rejected on the ground of limitation. It was further submitted that the question of limitation is connected with the merit of the suit and therefore the plaint cannot be rejected under Order VII Rule 11 (d) as barred by limitation and the learned single Judge committed an error in rejecting the plaint under Order VII Rule 11(d) C.P.C. as barred by limitation. In support of his contention, the learned Senior Counsel placed reliance upon a decision of the Supreme Court in C. Natrajan v. Ashim Bai,(2007) 14 SCC 183 and other decisions.
20. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust,(2006) 5 SCC 658, the Supreme Court considered the question whether words ".... barred by law...." in Rule 11(d) would also include bar by the law of limitation. Referring to various judgments and conflict of views, the Supreme Court held as under:
"4. This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma (2005) 5 SCC 548 for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this Court in Popat and Kotecha Property v. SBI Staff Assn.(2005) 7 SCC 510. in respect of the proposition that Order 7 Rule 11(d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words barred by law occurring in Order 7 Rule 11(d) CPC would include the suit being barred by limitation was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman AIR 1999 Raj 102, Khaja Quthubullah v. Govt. of A.P.AIR 1995 AP 43, Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana (1980) 1 An LT 488 : (1980) 1 APLJ 173 (HC), Arjan Singh v. Union of India AIR 1987 Del 165, wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd. AIR 1985 Cal 193, National Insurance Co. Ltd. v. Navrom Constantza AIR 1988 Cal 155, J. Patel & Co. v. National Federation of Industrial Coop.Ltd. AIR 1996 Cal 25 and State Bank of India Staff Assn. v. Popat & Kotecha Property (2001) 2 Cal LT 34. The last judgment was the subject-matter of challenge in Popat and Kotecha Property v. SBI Staff Assn.(2005) 7 SCC 510. This Court set aside the judgment and held in para 25 as under: (SCC p.517) 25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case (2004) 3 SCC 137 the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.
5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma (2005) 5 SCC 548 and Popat and Kotecha Property v. State Bank of India Staff Assn.(2005) 7 SCC 510 the Bench referred the following question of law for consideration to a larger Bench:
Whether the words barred by law under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust,(2006) 5 SCC 662, keeping in view the importance of question and the conflict of opinion, the Supreme Court referred the matter to a larger Bench.
21. Balasaria Construction case was referred to by the Supreme Court in C. Natrajan v. Ashim Bai,(2007) 14 SCC 183, wherein the respondent filed application under Order 7 Rule 11(d) C.P.C. praying for rejection of the plaint on the premise that the suit was barred by limitation. The trial Court dismissed the application on the ground that the question of limitation is a mixed question of fact and law to be considered during the trial by casting the issue suitably. The High Court set aside the order of the trial Court stating that the period of limitation, as per Article 58 of the Limitation Act, 1963 expired in 1997 itself and also holding that Article 65 of the Act had no application and the Supreme Court allowed the appeal holding that the suit cannot be dismissed as barred by limitation without proper pleading, framing of issue of limitation and taking evidence.
22. The learned Senior Counsel for the appellant/plaintiff Mr.K.Alagirisamy submitted that no time for performance of contract was fixed and therefore the Court had to find out the date on which the plaintiff had notice that the performance was refused. According to the appellant, the appellant/plaintiff had notice of refusal of performance only when the written statement was filed in O.S.No.6514 of 2002 on 17.11.2003 and the suit filed on 16.11.2006 within three years from the said date is well within the period of limitation.
23. As held by the Supreme Court in C. Natrajan v. Ashim Bai, (2007) 14 SCC 183, the limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In the case on hand, the plaint averments would clearly show that there has been a clear and unequivocal threat to the right claimed by the plaintiff. As pointed out earlier, in paragraph No.10 of the plaint, the plaintiff has categorically averred that in November 2002, one Mohan Kumar claiming to be a builder called upon the plaintiff and threatened him to vacate the suit premises as he (Mohan Kumar) proposed to purchase the property to put up several flats. It is also averred in the plaint that the plaintiff lodged a police complaint on 2.12.2002. In paragraph No.12 of the plaint, the plaintiff has averred that following several telephone calls threatening him he filed suit O.S.No.6514 of 2002. Before filing the suit, the plaintiff issued legal notice on 18.11.2002 calling upon the defendant to receive the balance consideration of Rs.13,00,000/- and to execute the sale deed. Stating that the defendant has not come forward to execute the sale deed, in December 2002, plaintiff has filed the suit O.S.No.6514 of 2002 for bare permanent injunction. In the plaint averments in C.S.No.264 of 2007, there is a repeated reference to the threats by the defendant in November/December 2002 and also his refusal to fulfil his obligation. Suit for specific performance should have been filed atleast by 2.12.2005. Even though there was such clear and unequivocal threat to the alleged agreement of sale/undertaking, the plaintiff has not chosen to file the suit for specific performance; but filed the suit for specific performance -C.S.No.264 of 2007 only in the month of November 2006. The suit is clearly barred by limitation. Even though the question of limitation is a mixed question of facts and law, the facts are writ large on the face of it to hold that the suit for specific performance C.S.No.264 of 2007 is barred by limitation. On the factual matrix of this case the ratio of the decision of the Supreme Court in (2007) 14 SCC 183 is not applicable to the facts of the case on hand.
24. Pointing out that the earlier suit O.S.No.6514 of 2002 - has not been filed only for specific performance and that the plaintiff did not take the leave of the Court to file a separate suit for specific performance, the learned single Judge also held that the suit is barred under Order II Rule 2 C.P.C. Placing reliance upon Alka Gupta v. Narender Kumar Gupta,(2010) 10 SCC 141, the learned Senior Counsel for the appellant contended that a suit cannot be rejected as barred under Order II Rule 2 C.P.C. in the absence of issues framed focussing on the bar to the suit under Or 2 R 2 C.P.C. Learned Senior Counsel would further contend that the pleadings in both the suits should be exhibited or marked and the plaintiff should have been given an opportunity to exhibit or demonstrate that the second suit was based on a different cause of action. It is the further contention of appellant that no issue was framed as to whether the suit was barred under Order II Rule 2 C.P.C. While so, the learned single Judge erred in rejecting the plaint as barred under Order II Rule 2 C.P.C.
25. The object of Order II Rules 1 and 2 C.P.C. is to prevent multiplicity of suits. The Rule in Order II Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause of action. Order II Rule 2 C.P.C. is directed in securing a exhaustion of the relief in respect of a cause of action. In order to make Order II Rule 2 applicable, the defendant must satisfy the f conditions:- (i) The previous and second suit must arise out of the same cause of action; (ii) Both the suits must be between the same parties; and (iii) The earlier suit must have been decided on merits. In order to attract the bar of Order II Rule 2 C.P.C, the earlier suit shall be founded on the same cause of action on which the subsequent suit is based, and if in the earlier suit, the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not subsequently be entitled to sue in respect of the portion of his claim so omitted or relinquished.
26. The learned single Judge considered the present suit C.S.No.264 of 2007 and also the earlier suit O.S.No.6514 of 2002 and held that in the earlier suit, the plaintiff has intentionally omitted to sue for specific performance and held that the suit is barred under Order II Rule 2 C.P.C.
27. The plaint in O.S.No.6514 of 2002 was produced before us. By perusal of the averments in both the suits - C.S.No.264 of 2007 and O.S.No.6514 of 2002, we find that the averments in both the plaints are verbatim same excepting few sentences in some paragraphs. As pointed out earlier, there was unequivocal threat to the plaintiff's right of agreement/understanding even in November 2002 when the plaintiff has also lodged a police complaint. While so, while filing the suit O.S.No.6514 of 2002, the plaintiff has omitted to sue in respect of the suit for specific performance. Order II Rule 2 is directed in securing the exhaustion of relief in respect of cause of action. When the plaintiff has intentionally omitted to claim the relief of specific performance, he will not be subsequently entitled to sue in respect of the portion of his claim right of specific performance, which he so omitted.
28. The learned Senior Counsel for the appellant/plaintiff nextly contended that the suit C.S.No.264 of 2002 has been filed not only for specific performance, but also for payment of damages of Rs.5,00,000/- towards damages on account of plaintiff's mental agony and the plaintiff has also sought for permanent injunction restraining the defendant from interfering with the plaintiff's possession. The learned senior Counsel Mr.K.Alagirisamy submitted that even if the plaintiff is not entitled to the relief of specific performance, still the plaintiff can maintain the suit for damages and for permanent injunction. The contention of the plaintiff is that the relief of permanent injunction is not linked to the relief of specific performance. In support of his contention, the learned Senior Counsel placed reliance upon a decision of the Supreme Court in Gunwantbhai Mulchand Shah v. Anton Elis Farel,(2006) 3 SCC 634, wherein the Supreme Court held as under:-
"9. ........ The plaint contains not only a prayer for specific performance but also a prayer for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs and from creating any documents or entering into any transaction in respect of the suit property. Of course, the latter part of that prayer is directly linked to the claim for specific performance, but the suit as regards the prayer for perpetual injunction to protect the possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not have been held to be not maintainable on any ground........."
The Supreme Court further held that even if the plaintiff is not entitled to the decree for specific performance, the plaintiff may be entitled to permanent injunction based on their alleged possession and all mattes are to be decided in the suit and the plaint cannot be rejected as not maintainable.
29. In our considered view, ratio of the above decision is not applicable to the case on hand. In the case on hand, admittedly, there is no written agreement of sale. Plaintiff claims specific performance on the basis of an understanding pursuant to which he is said to have paid the amount. The plaintiff claims to be in possession of the property only pursuant to the understanding between the plaintiff and the defendant. In the absence of any written agreement of sale, the plaintiff's claim for permanent injunction is strongly inter-linked with the prayer for specific performance. In our considered view, the other reliefs claiming damages of Rs.5,00,000/- and the relief of permanent injunction are only incidental to the main relief of specific performance. The other reliefs are integrally connected with the main relief of specific performance, which is clearly barred by limitation. The plaintiff cannot maintain the suit in respect of the other reliefs dehors the suit for specific performance.
30. Upon consideration of the plaint averments, the learned single Judge rightly held that the suit is barred by limitation and also barred under Order II Rule 2 C.P.C. No substantial grounds are made out by the appellant/plaintiff warranting interference of the Order of the learned single Judge and the appeal is liable to dismissed.
31. In the result, the Original Side Appeal is dismissed. However, there is no order as to costs.
usk To The Sub Asst.Registrar Original Side, High Court Madras