Punjab-Haryana High Court
Daulat Ram vs Hari Ram And Anr. on 4 February, 2003
Equivalent citations: (2003)134PLR225
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This regular second appeal has been filed by plaintiff appellant Daulat Ram, against judgments and decrees' of the courts below whereby the suit filed by the plaintiff was dismissed by the trial court and the appeal filed by him was also dismissed by the learned Addl. Distt. Judge.
2. Plaintiff had filed a suit for possession by way of specific performance of the agreement to sell dated 12.11.1998. As per the said agreement to sell, the defendant was required to execute the sale deed on 31.1.1989. As per the plaintiff, he was always ready and willing to perform his part of the agreement, whereas defendant had failed to execute the sale deed. Hence, suit for possession by way of specific performance of the said agreement was filed by the plaintiff on 23,12.1989. In the written statement, the defendants took preliminary objection that the suit was barred under Order 2 Rule 2 CPC. It was alleged that previous suit filed by the plaintiff against defendants in respect of the suit land was dismissed on 22.3.1990. It was alleged that the power of attorney executed by defendant No. 2 Smt. Surti in favour of defendant No. 1 Hari Ram, was revoked on 20.1.1989 and due notice of the revocation was also sent and that defendant No. 1 had entered into the agreement to sell in favour of the plaintiff without the permission of the defendant No. 2 Smt. Surti.
3. After hearing both sides, learned trial court held that the present suit was barred under Order 2 Rule 2 CPC. It was held that the agreement to sell dated 12.11.1988 was duly executed by defendant No. 1 Hari Ram (attorney of defendant No. 2 Smt. Surti), in favour of plaintiff. It was further held that the plaintiff had failed to prove that he was ready and willing to perform his part of the contract. Resultantly, suit of the plaintiff was dismissed. Appeal filed by Daulat Ram was also dismissed by the learned Addl. Distt. Judge, on the ground that the suit filed by the plaintiff was barred under Order 2 Rule 2 CPC. The findings of the trial court on other issues were not discussed and the appeal was dismissed by the learned Addl. Distt. Judge. Aggrieved against the same, plaintiff filed the present regular second appeal in this court. Notice of motion was issued. I have heard the learned counsel for the parties and have gone through the record carefully.
4. Learned counsel for the plaintiff appellant submitted before me that the courts below erred in law in holding that the suit was barred under Order 2 Rule 2 CPC. It was further submitted that previous suit filed by the plaintiff was a suit for mandatory injunction and it was filed on 25.1.1989, whereas the sale deed was to be executed on 31.1.1989. It has been submitted that at the tune when the plaintiff filed the previous suit, suit for specific performance was not maintainable and as such present suit for specific performance could not be dismissed on the ground that it was barred under Order 2 Rule 2 CPC. Reliance has been placed on the law laid down by this court, in the case in Sukhdev Mittar v. Rameshwar Doss Gupta, (1999-3)123 P.L.R. 846. On the other hand, learned counsel appearing for the defendants respondents submitted before me that the courts below rightly found that the suit filed by the plaintiff was barred under Order 2 Rule 2 CPC.
5. After hearing the learned counsel for the parties and after perusing the record, in my opinion, the following substantial question of law is involved in this appeal:-
Whether on the facts and circumstances of the present case, could it be said that the present suit for specific performance filed by the plaintiff on 23.12.1989 was barred under Order 2 Rule 2 CPC?
6. As referred to above, as per the agreement to sell dated 12.11.1988, sale deed was to be executed on 31.1.1989. Plaintiff had filed the suit for permanent injunction on 25.1.1989 for restraining defendants from alienating the suit property to any third person, alleging therein that as per the agreement to sell dated 12.11.1988, the sale deed was to be executed on 31.1.1989. If, as per agreement, the sale deed was to be executed by 31.1.1989, on the face of it, it would be clear that the plaintiff was not entitled to file suit for specific performance before 31.1.1989. Merely because the plaintiff continued to prosecute the previous suit (filed on 25.1.1989) even after 31.1.1989, in my opinion, would not be sufficient to hold that the present suit for specific performance filed by the plaintiff was hit by Order 2 Rule 2 CPC, merely because previously the plaintiff had filed a suit for permanent injunction.
7. In Sukhdev Mitter v. Rameshwar Doss Gupta, (1999-3)123 P.L.R. 846 (supra), on identical facts, it was held by this court that prior to the appointed date (date fixed for the execution of the sale deed), plaintiff could not sue for possession (by way of specific performance) and at that time, he could only file a suit for injunction with a prayer to restrain the defendant from alienating the suit property. It was further held that the moment the cause of action for specific performance accrued, he could not file suit for possession by way of specific performance. It was further held that the cause of action of the injunction suit was totally different than the one which was included in the suit for specific performance. It was further held in the said authority that the defendant could not take advantage of his own wrong by unilaterally writing letter to the plaintiff that he did not want to perform the contract. It was further held that in such circum-
stances the bar of Order 2 Rule 2 CPC was not applicable.
8. In the present case, the courts below found that on 22.1.1989, the plaintiff had received a notice from defendant No. I Hari Ram that he had executed the agreement as Attorney of defendant No. 2 Smt. Surti and that she had revoked the power of attorney on 20.1.1989 and that he was unable to execute any sale deed as per the agreement and that he was ready to return the earnest money of Rs. 10,000/-, which was given at the time of the agreement. It was found by the courts below that in view of the aforesaid notice received by the plaintiff on 22.1.1989, plaintiff could have filed a suit for specific performance on 25.1.1989 at the time when he had filed a suit for permanent injunction and as such suit for specific performance filed by the plaintiff was hit by Order 2 Rule 2 CPC. In my opinion, both the courts below had erred in law in taking this view, in view of the law laid down by this Court in Sukhdev Mittar's case (supra). As per the agreement to sell, the sale deed was to be executed on 31.1.1989. Even if defendant No. 1 Hari Ram had served a notice on 22.1.1989, upon plaintiff, in my opinion, plaintiff could still wait for the expiry of the aforesaid date i.e. 31.1.1989, before filing the suit for specific performance and prior thereto, if the plaintiff had filed a suit for permanent injunction on 25.1.1989, it could not be said that the subsequent suit for specific performance filed by him was barred under Order 2 Rule 2 CPC. Similarly, if plaintiff continued to prosecute the previous suit for permanent injunction, even after the expiry of 31.1.1989, by itself, would not be a ground to hold that the present suit for specific performance filed by the plaintiff was hit by Order 2 Rule 2 CPC.
9. In view of my detailed discussion above, the substantial question of law framed above is answered in favour of the plaintiff appellant and it is held that the present suit for specific performance filed by the plaintiff was not barred under Order 2 Rule 2 CPC, on the facts and circumstances of the present case.
10. In view of the above, the findings of the courts below on issue No. 5 are reversed and this issue is decided in favour of the plaintiff.
11. Since the learned Addl. Distt. Judge had dismissed the appeal only on the ground that suit was barred under Order 2 Rule 2 CPC, and since the finding of the learned Addl. Distt. Judge in this regard has been reversed, in my opinion, the case has to be remanded to the Addl. Distt. Judge for deciding the appeal afresh in accordance with law on other points.
12. For the reasons recorded above, present appeal is allowed, judgment and decree dated 25.8.1999, passed by the Addl. Distt. Judge Ropar, are set aside and the case is remanded to the Addl. Distt. Judge, for decision afresh in accordance with law. Parties through their counsel are directed to appear before the learned Addl. Distt. Judge, Ropar on 14.3.2003, for further proceedings in accordance with law.