Madras High Court
T.P.Natarajan vs P.Selvakumar on 27 November, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27-11-2014 (Orders reserved on 17-11-2014) CORAM: THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU C.R.P.(PD).No.2080 of 2012 & M.P.No.1 of 2012 T.P.Natarajan Petitioner Vs. 1. P.Selvakumar 2. R.Krishnan .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 20.3.2012 in I.A.No.17 of 2012 in O.S.No.188 of 2011 on the file of the Additional District Court/Fast Track Court No.2, Gobichettipalayam. For petitioner : Mr.N.Manokaran For respondents : Mr.V.Manohar for R-1 No appearance for R-2 ORDER
The defendant in a suit for specific performance of agreement of sale is the petitioner herein. He filed an application before the trial Court for rejection of plaint under Order 7 Rule 11 CPC on the ground that the suit is barred under Order 2 Rule 2 CPC. The trial Court dismissed the application and thus, the present Civil Revision Petition is filed by the defendant.
2. The respondents herein as plaintiffs filed the suit in O.S.No.188 of 2011 on the file of the Principal District Court, Erode (subsequently transferred to Fast Track Court, Gobichettipalayam), for specific performance of the sale agreement, dated 1.2.2010. It is their case that the defendant as the owner of the suit property, entered into the said sale agreement with the plaintiffs, agreeing to sell the suit property for a sum of Rs.14 lakhs and on the date of agreement, the plaintiffs paid a sum of Rs.2 lakhs as advance. According to the plaintiffs, they were always ready and willing to pay the balance amount to get the sale deed executed in their favour, but the defendant was evading the same. Therefore, after issuing notice on 3.3.2010, the plaintiffs have filed the above suit for the relief as stated supra.
3. The defendant filed I.A.No.17 of 2012 under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the very same plaintiffs filed earlier suit in O.S.No.186 of 2010 before the District Munsif Court, Sathyamangalam against the present defendant and another, for mandatory injunction and they intentionally omitted therein to sue for specific performance of the agreement and by such conduct, they relinquished the said claim. The said application was resisted by the plaintiffs. The trial Court rejected the said application holding that the present suit is not hit by Order 2 Rule 2 CPC.
4. Mr.N.Manokaran, learned counsel for the petitioner/defendant submitted that the respondents/plaintiffs having filed earlier suit for mandatory injunction, ought to have prayed the relief of specific performance also in the same suit, since the cause of action for filing the present suit was very much available on the date of filing of the earlier suit itself. Therefore, he submitted that without seeking the leave of the Court in the earlier suit, filing of the present suit is hit by Order 2 Rule 2 CPC. In support of his submissions, he relied on the following decisions:
(a) 2013 (1) SCC 625 (Virgo Industries (Eng.) (P) Ltd. Vs. Venturetech Solutions (P) Ltd.;
(b) 2014 (6) SCC 424 (Coffee Board Vs. Ramesh Exports (P) Ltd) and
(c) 2010 (5) CTC 563 (Madras High Court) (Sornam Vs. A.Venugopal);
5. Per contra, Mr.V.Manohar, learned counsel for the first respondent submitted that the earlier suit was filed for mandatory injunction to direct the second defendant therein to handover the original sale agreement, dated 1.2.2010 executed by the first defendant therein (defendant in the present suit) and for consequential prayer for permanent injunction restraining the first defendant therein from alienating or creating encumbrance over the suit property till the date of filing of a suit for specific performance. Thus, he contended that the relief sought for in the earlier suit, was for different purpose, namely to get the original sale agreement, which was admittedly in the possession of the second defendant therein, who was not party to the suit agreement. Thus, he contended that unless the plaintiffs get the said agreement, they cannot file the present suit for specific performance. Accordingly, the learned counsel submitted that the cause of action for filing the earlier suit and the relief sought for therein, were totally different and therefore, it cannot be said that the present suit is hit by Order 2 Rule 2 CPC. He further submitted that the plaintiffs' entitlement to file the present suit was curtailed on the date of filing the earlier suit, as they were not in possession of the original sale agreement.
6. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
7. The respondents herein filed the present suit for specific performance of the agreement of sale, dated 1.2.2010 against the petitioner herein. The plaint filed in the present suit is sought to be rejected by the petitioner/defendant by contending that the suit is hit by Order 2 Rule 2 CPC, which reads as follows:
Order 2: Frame of suit:
Rule 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 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."
8. As per the abovesaid provision of law, every suit shall include the whole of the claim which the plaintiff is entitled to make and if a person entitled to claim more than one relief in respect of the same cause of action, omits to seek for any of the reliefs in respect of the same cause of action, except with the leave of the Court, he shall not afterwards sue for any reliefs so omitted.
9. To put it in nut-shell, the cause of action to seek such relief so omitted should be available and such person would also be entitled to seek such omitted relief as on the date of filing of the earlier suit itself. These mandatory requirements are to be pleaded and established by the party who pleads that the suit is hit by Order 2 Rule 2 CPC.
10. Keeping the above legal position in mind, if we analyse the facts of the present case, it would show that the present suit is not at all hit by Order 2 Rule 2 CPC, for the following reasons and discussion. The plaintiffs filed the earlier suit in O.S.No.186 of 2010 for mandatory injunction to direct the second defendant therein to handover the original sale agreement, dated 1.2.2010 entered into between the plaintiffs and the first defendant therein (defendant in the present suit) and for permanent injunction restraining the first defendant therein from alienating or encumbering the suit property to any third party till the plaintiffs file the suit for specific performance. The case of the plaintiffs in the earlier suit is that the said sale agreement entered into between the plaintiffs and the first defendant was entrusted with the second defendant therein based on an understanding between the parties, and the second defendant, instead of seeing the first defendant to execute the sale deed, demanded some money from the plaintiffs and further informed that the sale agreement will not be returned to the plaintiffs, unless the amount so demanded is given by the plaintiffs. In the earlier suit, the second defendant therein filed written statement, wherein she has admitted that she was in possession of the original sale agreement, dated 1.2.2010 and filed the same along with the written statement. It is now stated that the earlier suit was subsequently withdrawn by the plaintiffs, as the sale agreement was given to the plaintiffs and thereafter, the present suit came to be filed.
11. Considering the relief sought for in the earlier suit as discussed supra, based on the then existed cause of action for filing the said suit, I am of the view that the petitioner herein is not right in contending that the present suit is hit by Order 2 Rule 2 CPC. Admittedly, the relief sought for in the earlier suit was against the second defendant therein to return the original sale agreement. It is needless to say that only when the plaintiffs get the original sale agreement, they could file the suit for specific performance against the present defendant (petitioner herein). The question is whether, on the date of filing the earlier suit, the plaintiffs were in a position to file the suit for specific performance also and whether the cause of action then existed would have permitted them to do so. The answer to the said question would be negative, in view of the fact that on the date of filing the earlier suit, admittedly, the plaintiffs were not in possession of the sale agreement, and therefore, they were incapacitated from filing the suit for specific performance. Likewise, the other prayer sought for in the earlier suit was also for the consequential permanent injunction restraining the first defendant therein, who is the present defendant (petitioner herein) from alienating or encumbering the suit property till the plaintiffs file the suit for specific performance. As already stated supra, both the prayers sought for in the earlier suit, were under different set of cause of action, and therefore, it cannot be said that the plaintiffs were having the same cause of action for filing the suit for specific performance also at that time.
12. At this juncture, the recent decision of the Honourable Supreme Court reported in 2014 (12) SCALE 435 (Inbasegaran Vs. S.Natarajan) can be safely relied upon. In the above decision, while dealing with the scope of Order 2 Rule 2 CPC, the Honourable Supreme Court has observed in paragraphs 19, 22 and 26 as follows:
"19. Indisputably, cause of action consists of a bundle of facts which will be necessary for the Plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2 Rule 2 CPC will not apply."
"22. In the case of Kewal Singh Vs. Lajwanti (supra) (1980 (1) SCC 290), while considering the applicability of Order 2 Rule 2 CPC, this Court observed that:
" ... ....
A perusal of Order 2 Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished. ... .... "
"26. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical."
(emphasis supplied)
13. In another decision reported in 2014 (12) SCALE 386 (Rathnavathi Vs. Kavita Ganashamdas), the Honourable Supreme Court observed in paragraphs 29, 32 and 36 as follows:
"29. In the instant case when we apply the aforementioned principle, we find that bar contained in Order II Rule 2 is not attracted because of the distinction in the cause of action for filing the two suits. So far as the suit for permanent injunction is concerned, it was based on a threat given to the plaintiff by the defendants to dispossess her from the suit house on 2.1.2000 and 9.1.2000. This would be clear from reading Para 17 of the plaint. So far as cause of action to file suit for specific performance of agreement is concerned, the same was based on non performance of agreement dated 15.2.1989 by defendant no.2 in plaintiff's favour despite giving legal notice dated 6.3.2000 to defendant no.2 to perform her part."
"32. One of the basic requirements for successfully invoking the plea of Order II Rule 2 of 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."
"36. 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 II Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and not merely the pleadings. For these reasons, it was not necessary for plaintiff to obtain any leave from the court as provided in Order II Rule 2 of CPC for filing the second suit."
14. No doubt, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in 2014 (6) SCC 424 (Coffee Board Vs. Ramesh Exports (P) Limited). A perusal of the said decision, more particularly in paragraph 12, would show that in order to determine whether a suit is barred under Order 2 Rule 2 CPC, the Court must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits and both the plaints must be read as a whole to identify the cause of action. Paragraph 12 of the said decision reads as follows:
"12. The courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits (See S.Nazeer Ahmed Vs. State Bank of Mysore (2007 (11) SCC 75) ). Considering the technicality of the plea of Order 2 Rule 2, both the plaints must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the the plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 Rule 2."
15. From a perusal of the abovesaid decision, it would show that the same, in fact, supports the case of the plaintiffs and not that of the defendant in the present suit. I have already pointed out that the cause of action for both the suits is not one and the same and on the other hand, it is different. Therefore, the said decision is not helping the petitioner/defendant in any manner.
16. The other decision relied on by the learned counsel for the petitioner, reported in 2013 (1) SCC 625 (Virgo Industries (Eng.) (P) Ltd. Vs. Venturetech Solutions (P) Ltd), refers about the scope of Order 2 Rule 2 CPC and it has been found therein in paragraph 17 that Order 2 Rule 2 CPC will apply to both the situations, where the first suit was disposed of and the second suit has been filed during the pendency of the first suit. I am of the view that the above decision is not relevant for the present facts and circumstances of the case, more particularly when recent decisions of the Apex Court as referred to supra, reported in 2014 (12) SCALE 386 (cited supra) and 2014 (12) SCALE 435 (cited supra), are directly covering the present issue in favour of the plaintiffs.
17. Since I am relying and following the above decisions of the Apex Court reported in 2014 (12) SCALE 386 (cited supra) and 2014 (12) SCALE 435 (cited supra), the other decision of this Court relied on by the learned counsel for the petitioner, reported in 2010 (5) CTC 563 (Sornam Vs. A.Venugopal) cannot help the petitioner/defendant in any manner.
18. Accordingly, I find no grounds to interfere with the impugned order of the Court below, as the petitioner/defendant has not made out a case for rejection of the plaint. Therefore, the Civil Revision Petition fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.
27-11-2014 Index: Yes Internet: Yes cs Copy to The Additional District Judge/Fast Track Court No.2, Gobichettipalayam.
K.RAVICHANDRABAABU,J cs Order in C.R.P.(PD).No.2080 of 2012 27-11-2014