Delhi District Court
Sh. Nutan Tyagi vs Ms. Nirmala Dabas on 16 September, 2015
1
IN THE COURT OF SH. PRADEEP CHADDAH
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI.
CS/69/2014
Sh. Nutan Tyagi,
S/o Late Sh. Shiv Nandan Tyagi,
R/o C21, Top Floor,
Adarsh Nagar, Village Bharola,
Netaji Road, Delhi33. .....Plaintiff.
Versus
Ms. Nirmala Dabas,
W/o Late Sh. Jai Singh Dabas,
R/o H.No. 52, Ghalib Apartment,
Parwana Road, Pitampura, Delhi. .....Defendant.
Date of Institution: 19.03.2014
Date of Argument: 03.09.2015
Date of Judgment: 16.09.2015
JUDGMENT :
1. My Ld. Predecessor had framed preliminary issue on 25.11.14 which is a follows: Nutan Tyagi Vs. Nirmala Dabas Page no. 1 of 10 2 "Whether the suit of the plaintiff is barred by provisions of Order II Rule 2 CPC ? OPD"
2. Before proceeding further I would like to give in brief facts as jotted down in the plaint. Plaintiff Nutan Tyagi claimed that husband of defendant Jai Singh Dabas was absolute owner of property no. C21, Top Floor, Adarsh Nagar, Delhi. He had approached her to sell the property for Rs. 13,50,000/. Rs. 1,50,000/ bayana was paid and thereafter balance amount of Rs. 12,00,000/ was to be paid in installment of Rs. 15,000/ each month by month. Sale deed was to be executed after completion of payments. Possession of the property was also handed over. Plaintiff in all paid Rs. 8,75,000/. Husband of defendant expired. Plaintiff then approached defendant to execute the sale deed after receiving the balance but she flatly refused to do the needful. She sent a legal notice to her alleging therein that plaintiff was tenant in the property. She also told her to vacate the premises. Plaintiff Nutan Tyagi Vs. Nirmala Dabas Page no. 2 of 10 3 has been always ready and willing to perform her part of the contract. On 30.08.13 defendant tried to dispossess her forcibly and thus the present suit wherein she prayed for decree of specific performance of agreement to sell and also decree of permanent injunction to restrain defendants and her agents from forcibly dispossessing her and from selling/transferring the property to any third person.
3. Defendant filed written statement wherein she took preliminary objection that the suit was not maintainable as it was hit by Order II Rule 2 CPC. She claimed that plaintiff had earlier filed a suit for permanent injunction bearing no. 383/13 but she did not include claim for specific performance. She also omitted the relief in the previous suit and did not seek leave of the Court and hence was not entitled to proceed with the present case. Thereafter my Ld. Predecessor framed preliminary issue to which I referred initially.
4. I have heard Ld. Counsel for both the parties very Nutan Tyagi Vs. Nirmala Dabas Page no. 3 of 10 4 extensively. I have also gone through the file.
5. Ld. Counsel for defendant submitted that the suit was barred by Order II Rule 2 CPC and should be dismissed. She submitted that relief of specific performance was available to the plaintiff when she had filed the previous suit but had omitted to claim. On the other hand Ld. Counsel for plaintiff submitted that the two suits were based on distinct causes of action and hence the present suit was not barred. He further submitted that the earlier suit was withdrawn by the plaintiff with liberty to file fresh one.
6. Ld. Counsel for plaintiff relied upon case titled as "Ravjibhai Mathurbhai Solanki Vs. Bijalbhai Devjibhai & Ors.: AIR 2004 Gujrat 102. Ld. Counsel for defendant on the other hand relied upon Lakhbir Singh Vs. Arun Kumar Khanna : 209 (2014) DLT 708. I have gone through both the authorities.
Nutan Tyagi Vs. Nirmala Dabas Page no. 4 of 10 5
7. Order II Rule 2 CPC reads as under:
"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 ClaimWhere 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.
8. So if a person is entitled to more than one relief in respect Nutan Tyagi Vs. Nirmala Dabas Page no. 5 of 10 6 of same cause of action, he may sue for all or any of such relief. If he omits to sue for any particular relief, he will not be allowed to sue in future. An exception to this rule is that he can sue for such omitted relief in future provided he had sought permission of the Court. So it means that in case a person is entitled to four reliefs against the defendants and he sues only for three reliefs and he does not seek permission of the Court regarding the fourth omitted relief, he will not be allowed to sue in future for the said omitted fourth relief.
9. Plaintiff had filed a suit for injunction on 24.9.13 before Senior Civil Judge. In the said suit she referred to Agreement to Sell and payments made to husband of the defendant. She also mentioned in it that she had requested the defendant for executing the sale deed but defendant had not obliged. She claimed further in the said suit that on 30.8.13 defendant and her associates had tried to dispossess her. She sought decree of permanent injunction restraining the defendants from forcibly Nutan Tyagi Vs. Nirmala Dabas Page no. 6 of 10 7 dispossessing her from the suit premises.
10. The said suit was withdrawn by the plaintiff on 21.2.14 with a liberty to file fresh one. In her two line statement she had stated "I am the plaintiff. The present suit may be dismissed as withdrawn with liberty to file afresh." Ld. Civil Judge thereafter dismissed the suit and granted her liberty to file fresh suit.
11. In case titled as Lakhbir Singh Vs. Arun Kumar Khanna my lord Mr. Justice Rajiv Sahai Endlaw in 209 (2014) DLT 708 dealt with similar situation. In the said case there was an agreement to sell between the parties dt. 18.11.06. Plaintiff thereafter filed a suit for permanent injunction before Sr. Civil Judge, Delhi, to restrain defendant from alienating, selling disposing off or creating third party interest in the suit party. It was also accompanied by an application U/o II Rule 2 CPC seeking permission to file suit for specific performance subsequently. Thereafter suit for Nutan Tyagi Vs. Nirmala Dabas Page no. 7 of 10 8 specific performance was filed in Hon'ble High Court. A issue was framed as to whether the said new suit was barred U/o II Rule 2(3) CPC. His Lordship My Lord Mr. Justice Endlaw relied upon case titled as Virgo industries Pvt. Ltd. Vs. Venturetech Solutions Pvt. Ltd. : VII (2012) SLT 16. In Virgo Industries case plaintiff had filed a suit for permanent injunction in Madras High Court restraining defendant from alienating, encumbering or dealing with property. Thereafter he filed a suit in the Court of District Judge for execution and registration of sale deed. Hon'ble Madras High Court held that the suit was not barred because time stipulated for execution of sale deed had not expired and so cause of action had not accrued. Hon'ble Supreme Court held that cause of action for both the suits was one and the same and the plaint was struck off. Relying upon said judgment, Hon'ble Judge in Lakhbir Singh case held the suit to be barred.
12. Now coming back to facts of the case in hand, there was Nutan Tyagi Vs. Nirmala Dabas Page no. 8 of 10 9 an Agreement to Sell between husband of defendant and the plaintiff. Some payments were also made. Plaintiff thereafter filed a suit for permanent injunction claiming therein that defendant was trying to dispossess her. She claimed that cause of action for filing of the suit had arisen when husband of defendant had entered into Agreement to Sell with her. It further arose from time to time as and when installments of Rs. 15,000/ were paid. It lastly arose on 13.8.13 when she was tried to be dispossessed. In the present suit for specific performance and permanent injunction, She claimed that cause of action had arisen when defendant sent a notice to plaintiff on 22.3.13 making it clear that she is not going to execute sale deed. It further arose on 30.8.13 when attempt was made to dispossess her and it also arose on 21.2.14 when the injunction suit was withdrawn. Now if we see the statement made by the plaintiff before Ld. Civil Judge, we find that she simply withdrew the suit with liberty to file afresh. Ld. Civil Judge also permitted her to file fresh suit. Relief of specific permanence was very much available on the day injunction suit Nutan Tyagi Vs. Nirmala Dabas Page no. 9 of 10 10 was filed. Plaintiff chose not to seek said relief. The liberty to file fresh suit which was granted by the Civil Judge would be only for fresh injunction suit and not for suit for specific performance. The suit is thus clearly barred by Order II Rule 2 CPC. The plaint stands rejected.
Announced in the open court on the 16th September, 2015 (Pradeep Chaddah) District & Sessions Judge (North) Rohini Court, Delhi Nutan Tyagi Vs. Nirmala Dabas Page no. 10 of 10