K.Bama vs J.Stephen Selvaraj on 6 January, 2012

[Cites 31, Cited by 0]

Madras High Court

K.Bama vs J.Stephen Selvaraj on 6 January, 2012

Bench: T.Mathivanan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.01.2012

CORAM:

THE HON'BLE MR.JUSTICE T.MATHIVANAN

A.S.No.671 of 2009


K.Bama								....  Appellant 

	Vs.

1.J.Stephen Selvaraj
2.J.David Selvaraj
3.V.Asirvatham
4.Gunavathi
5.Robert Fernandez
6.Jackelin
7.Victor
8.Vincent							....  Respondents
  
								
Prayer : Appeal filed under Section 96 of the Code of Civil Procedure against the Judgment and decree dated 18.12.2008, and made in O.S.No.266 of 2005, on the file of the learned Additional District Judge, (Fast Track Court-II), Poonamallee.
 
		For Appellant      : Mr.T.Aravindakshan
             	For Respondents    : Mr.Srinath Sridevan for RR1 to 7
				     Mr.P.B.Palaninathan for R8



*****


J U D G M E N T

Challenge is made in this appeal to the Judgment and Decree dated 18.12.2008 and made in O.S.No.266 of 2005, on the file of the learned Additional District Judge (Fast Track Court No.II), Poonamallee.

2. The plaintiff in the suit is the appellant herein, whereas the defendants 1 to 8 are the respondents.

3. For the sake of convenience and also for easy reference, the character of the parties to the suit need not be changed and let it remain as it is in the suit.

4. Originally, the plaintiff has filed the suit against the defendants 1 to 3. During the pendency of the suit, the third defendant Mr.V.Asirvatham had passed away and therefore in view of the Order dated 05.12.2007 and made in I.A.No.1413 of 2007, the defendants 4 to 8 being the wife and sons of the deceased third defendant have been impleaded in the suit.

5. The facts, which are absolutely necessary for the disposal of this appeal are as under:

5.1. The plaintiff had filed the suit seeking the following reliefs:

i. For specific performance of the contract of sale agreement directing the defendants to execute and register the sale deed in favour of the plaintiff in respect of the suit property after receiving the balance of sale consideration. In default, the Court may execute and register the sale deed on deposit of the balance of sale price into Court, and ii. Directing the defendants to pay the costs of the suit.

5.2. That on 24.08.2002, the plaintiff had entered into an agreement of sale in respect of the suit property with the defendants 1 to 3 for a sale consideration of Rs.11,50,000/- per Acre. On the date of the agreement of sale, the defendants had received a sum of Rs.1,00,000/- from the plaintiff as advance and another sum of Rs.40,000/- on 07.09.2002 being the part of the sale consideration. Thus, totally the defendants had received a sum of Rs.1,40,000/-. On the date of the agreement itself, the defendants had handed over the title deed relating to the suit property to the plaintiff.

5.3. The plaintiff had / has been ready to pay the balance of sale consideration and to have the sale deed executed in her favour. But, the defendants have been evading to fulfil their part of contract despite of several demands. The plaintiff was put to understand that the defendants had been making attempts to sell the property to third parties. Hence, she had filed a suit O.S.No.425 of 2005, on the file of the learned District Munsif Court, Poonamallee seeking the relief of permanent injunction.

5.4. The evasion of the defendants in fulfilling their part of contract of sale inspite of plaintiff's readiness, is illegal and high handed. Hence, the suit.

5.5. The written statement filed by the first defendant has been adopted by the remaining defendants. In the written statement, they have contended that the entire transaction was done by M/s.J.P.Real Estates' proprietor Mr.Deenadayalan. He has only arranged for the sale of the suit property. When the agreement of sale was executed the defendants had asked about the plaintiff. Mr.Deenadayalan had replied that she was one of the partners and that he was in-charge of entire transaction.

5.6. Further in the written statement they have contended that the plaintiff is only a name lendor. She was not aware of where the suit property was situated. The defendants have never met the plaintiff as she was not present at the time of execution of the agreement of sale. At the time of execution of agreement of sale, Mr.Deenadayalan had given an assurance that the entire sale consideration would be paid within a period of two months. Even, the payment of Rs.40,000/- was only paid by Mr.Deenadayalan and not by the plaintiff. Hence, the plaintiff has no means to pay the sale consideration and she was never ready and willing to perform her part of contract.

5.7. Further in the written statement they have contended that at the time of execution of sale agreement, the land was under cultivation. It has been specifically stipulated in the agreement of sale that the defendants have to put the plaintiff in vacant possession of the land after the harvest was over. The agreement of sale further recites that within eleven months of entrustment of possession of the land, the plaintiff has to pay the remaining balance of sale consideration. It further recites that the defendants have agreed to execute and register the sale deed either in favour of the plaintiff or in favour of their assignee, provided they are informed about the readiness of the draft sale deed.

5.8. Further in the written statement they have contended that no sooner than the completion of the harvest Mr.Deenadayalan was informed for which he had requested the defendants to wait for some more months and he had also expressed his inability. The defendants had approached M/s.J.P.Real Estates for nearly about hundred times and they understood that the plaintiff was not having sufficient means to pay the sale consideration and moreover the plaintiff had not issued any legal notice to convey her readiness and willingness. In fact, she wanted her advance amount to be returned.

5.9. Further in the written statement they have contended that it was orally agreed by the parties that the time is essence of the contract. The suit is squarely barred by limitation. The plaintiff ought to have taken steps within eleven months from the date of harvest. The harvest was completed within two months from the date of agreement, but the plaintiff was not ready to perform her part of contract.

5.10. The filing of the suit before the learned District Munsif Court would go to show the colour of the plaintiff that she is not willing to perform her part of contract.

5.11. Based on the pleadings of the parties, the trail Court has formulated the following four issues for the better adjudication of the suit:

i. Whether the plaintiff has proved the execution of sale agreement and the amount paid towards it?

ii. Whether time is the essence of the contract?

iii. Whether the plaintiff is entitled to the specific performance of the contract? and iv. To what relief is the plaintiff entitled?

5.12. In order to substantiate their respective cases, the parties to the suit were made to face the trail. The plaintiff was examined as P.W.1. One Mr.Deenadayalan and Mr.Suresh Kumar were examined as P.W.2 and P.W.3 respectively. During the course of their examination, Exs.A1 to A10 were marked. On the other hand, the defendants 5 and 8 were examined as D.W.1 and D.W.2 respectively. Besides them, one Mr.Arumugam was examined as D.W.3. During the course of their examination, Exs.B1 and B2 were marked.

5.13. On appraising the evidences both oral and documentary available on record, the learned Additional District Judge (Fast Track Court No.II), Poonamallee has proceeded to dismiss the suit on the following four grounds:

i. The plaintiff was not ready and willing to perform her part of contract;

ii. The contradicted evidence given by P.W.1 would go to establish the fact that the plaintiff was not present at the time of execution of sale agreement under Ex.A1;

iii. The plaintiff is not entitled to get the relief of specific performance; and iv. The suit is barred by Order II Rule 2 of the Code of Civil Procedure.

6. Impugning the Judgment and decree dated 18.12.2008 the plaintiff now stands before this Court with this appeal.

7. Heard Mr.T.Aravindakshan, learned counsel appearing for the appellant, Mr.Srinath Sridevan, learned counsel appearing for the respondents 1 to 7 and Mr.P.B.Palaninathan learned counsel appearing for 8th respondent.

8. On the basis of the grounds of the appeal, the following points arise for the consideration of this Court:

i. Whether the Trial Court has rightly applied the principles embodied under Order II Rule 2 of the Code of Civil Procedure, when such an objection has not been figured out by the defendants in their written statement?

ii. Whether the plaintiff had been ready and willing to perform her part of contract?

iii. Is it correct to say that the Trial Court should have decreed the suit when both the agreement and the receipt of the advance of Rs.1,40,000/- have been admitted by the defendants without in any manner adducing evidence contra to establish their readiness and willingness to complete the sale over a period of almost three years?

iv. Whether the defendants have played fraud upon the Court by mis-representation?

9. Prior to enter into discussion on the above points, it may be quite relevant to refer the written statement filed by the first defendant, which has been adopted by other defendants. In paragraph No.2 of the written statement, the first defendant has contended as follows:

"The entire transaction was done by M/s.J.P.Real Estates' proprietor Mr.Deenadayalan (D.W.2). He has only arranged for the sale of property. When the agreement of sale was executed the defendant asked about the plaintiff. Deenadayalan (D.W.2) replied that she is one of the partners and said he is in-charge of entire transaction. The execution of the agreement of sale dated 20.08.2002 is hereby denied and the plaintiff is put to strict proof of the same. The plaintiff is only a name lender. She is not aware where the suit property is situated. The defendants did not meet the plaintiff. When the alleged agreement of sale was executed the plaintiff was not present. When these defendants questioned about the name of the plaintiff, Deenadayalan (D.W.2) promised that the defendants need not worry about it and the entire sale consideration will be paid within two months. The payment of Rs.40,000/- (Rupees forty thousand only) was paid by Deenadayalan and not by the plaintiff. The plaintiff has no means to pay the sale consideration. The plaintiff was never ready and willing to perform her part of contract."

10. Admittedly, the plaintiff has not signed as a party to the contract of the sale. Ex.A2 viz. the endorsement dated 07.09.2002 for having received a sum of Rs.40,000/- by the defendants would go to show that in continuation of the agreement of sale, the defendants had received a sum of Rs.40,000/- through M/s.J.P.Real Estates Proprietor Mr.K.Deenadayalan (D.W.2). The defendants 1 to 3 alone have signed beneath the endorsement. It is pertinent to note here that the signature of the plaintiff does not find a place in the endorsement under Ex.A2.

11. The above circumstance would lead the Court to raise a question as to "whether the plaintiff was really aware of the contract of sale as contended by the defendants?". Another question has also been arisen as to "whether the plaintiff was not at all present at the time of execution of agreement of sale on 24.08.2002?" It is manifested that while all the contents of the agreement have been typewritten, the date alone is written in ink. This has been admitted by P.W.1 in her cross-examination.

12. When such being the case, does the contract of sale dated 24.08.2002, which is not signed by the plaintiff mean that she has not accepted the offer or the proposal made by the defendants for selling their property?

13. Another question also arises for the consideration of this Court as to whether the execution of agreement of sale under Ex.A1 is unilateral or bilateral.

14. The plaintiff has also admitted in her cross-examination that during the pendency of the suit she had filed an application in I.A.No.1150 of 2006 to amend the date of the agreement in the plaint. Infact, that petition was allowed and in pursuant to the Order of the Trial Court dated 04.04.2007, the plaintiff was permitted to correct the date of the agreement of sale as 24.08.2002 instead of 20.08.2002.

15. The plaintiff has also admitted in her cross-examination that the same mistake was occurred in the plaint in the suit in O.S.No.425 of 2005, which was filed before the District Munsif Court, Poonamallee for the relief of permanent injunction as against the second respondent. With regard to the filing of the suit in O.S.No.425 of 2005, it would be discussed in detail under the caption of Order II Rule 2 of the Code of Civil Procedure in the later paragraphs.

16. The total extent, which was intended to be sold by the defendants is 1 Acre 17 Cents, comprised in Survey No.220/2B situated at Poonamallee Taluk, No.10 Parivakkam Village. The sale price as it appears in Ex.A1 has been fixed at Rs.11,500/- per Cent. On the basis of fixation of sale price at Rs.11,500/- per Cent, for the total extent of 1 Acre 17 Cents, the total consideration is calculated at Rs.13,45,500/-. But, it has been wrongly stated in the plaint as Rs.11,50,000/-. This mistake has also been admitted by the plaintiff in her cross-examination. Apart from this, she has also admitted that all the arrangements for the sale transaction were done by M/s.J.P.Real Estates Proprietor Mr.K.Deenadayalan (D.W.2). Based on the above latches on the part of the plaintiff, the defendants have categorically contended that the plaintiff was not present at the time of execution of the agreement of sale under Ex.A1 and that she is merely a name lender and not a real party to the contract.

17. With this backdrop, let us discuss about the validity of sale agreement under Ex.A1.

Agreement in question whether consensual in nature:

18. Every contract must be considered according to the language used therein. "Agreement" as defined in Section 2(e) is essentially and exclusively consensual in nature."

19. Section 2 of the Indian Contract Act, 1872 encompasses with interpretation clauses. Clause (g) to Section 2 of the Indian Contract Act, 1872 contemplates that "An agreement not enforceable by law is said to be void".

20. As held in Thawardas Pherumal vs. Union of India, AIR 1955 SC 468 : (1955) 2 SCR 48, a person cannot be bound by a one-sided offer which is never accepted, particularly when the parties intended that the contract should be reduced into writing.

21. As observed in the earlier paragraphs, the plaintiff has not signed in Ex.A1 sale agreement. The defendants 1 and 2 have also contended that the plaintiff was not present at the time of execution of the sale agreement under Ex.A1 and that Mr.K.Deenadayalan (D.W.2) alone had been making all arrangements for the sale transaction. Even in Ex.A2, endorsement, with regard to the acceptance of Rs.40,000/-, it has been stated that the defendants had received the amount of Rs.40,000/- through Mr.K.Deenadayalan (D.W.2). Now, the question is as to whether the acceptance of Rs.1,00,000/- and subsequent amount of Rs.40,000/- would give an entitlement to the plaintiff to claim the relief of specific performance by way of this suit.

22. As per Section 2(b) of the Indian Contract Act, 1872, when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes promise.

23. As per Section 2(e) every promise and every set of promises, forming the consideration for each other, is an agreement.

24. On a perusal of Ex.A1 sale agreement, the defendants 1 to 3 have agreed to sell their land specified therein for the consideration of Rs.11,500/- per Cent. It also reveals that the following terms have been incorporated in the agreement for the fulfilment of the contract of sale:

a. the defendant shall have to entrust the vacant possession of the land after the completion of harvest;

b. the plaintiff shall have to pay the balance of sale price within the period of eleven months from the date of entrustment of the vacant possession of the land;

c. the plaintiff shall have to prepare the draft sale deed or power of attorney deed at her cost; and d. the preparation of sale deed or power of attorney deed shall be informed to the defendants by the plaintiff. On such information being made the defendants shall come to the Registrar Office and execute and register the sale deed either in favour of the plaintiff or in favour of her assignee;

25. The above terms appear to be the proposals made by the defendants. The proposals would become a promise when the plaintiff signifies her assent as defined in Section 2(b) of the Indian Contract Act, 1872.

26. Obviously, the plaintiff has not signed in the agreement of sale under Ex.A1. Under this circumstance, the document under Ex.A1 sale agreement cannot be construed as a valid agreement, which could be enforced in accordance with law.

27. In Black's Law Dictionary, Sixth Edition, Centennial Edition (1891-1991), at page No.325, the terms 'Unilateral and Bilateral' have been explained.

Unilateral and bilateral A unilateral contract is one in which one party makes an express engagment or undertakes a performance, without receiving in return any express engagement or promise of performance from the other. Bilateral (or reciprocal) contracts are those by which the parties expressly enter into mutual engagements, such as sale or hire. Kling Bros. Engineering Works v. Whiting Corporation, 320 III.App.630, 51 N.E.2d 1004, 1007. When the party to whom an engagement is made makes no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance. Essence of a "unilateral contract" is that neither party is bound until the promisee accepts the offer by performing the proposed act. King v. Industrial Bank of Washington, D.C.App., 474 A.2d 151, 156. It consists of a promise for an act, the acceptance consisting of the performance of the act requested, rather than the promise to perform it. Antonucci v. Stevens Dodge, Inc., 73 Misc.2d 173, 340 N.Y.S.2d 979, 982.

28. The above specified proposition of law has been more defined in S.M.Gopal Chetty vs. Raman Alias Natesan & 7 Others reported in AIR 1998 Madras 169. In this case the plaintiff had filed the second appeal after being defeated in the first appellate court. The suit is for specific performance for an agreement said to have been executed on 19.10.1973. From the said date he had been in possession after payment of a sum of Rs.100/- as advance. Again on 17.01.1974 another agreement was entered into as the sale could not be completed as per the earlier agreement. After the second agreement, the 3rd defendant in the suit using his influence had obtained the sale deed for the very same property from the defendants 1 and 2 on 20.02.1974. Hence the plaintiff seeking the relief of specific performance, had filed the suit. The defendants 1 and 2 had supported the case of the plaintiff. The 3rd defendant alone contested the suit. According to him, the agreements dated 19.10.1973 and 17.01.1974 are not valid agreements and they are not true documents at all. The 3rd defendant also contended that the sale in his favour is genuine and from the date of sale, he is in possession of the suit property. The trial court had granted the decree as prayed for. During the pendency of the suit the 3rd defendant had died and hence his legal representatives had preferred the first appeal. On consideration of the facts, the Lower Appellate Court reversed the judgment and decree of the trial court. Hence the appeal was preferred by the plaintiff.

29. On considering the relevant facts and circumstances, the learned single judge of this court has observed that;

"Before we go into the question of genuineness and validity of Exs.A1 and A2, one vital fact which was not noticed by the lower Court is that Exs.A1 and A2 do not contain the signature of the plaintiff at all. Exs.A1 and A2 have been signed only by the defendants 1 and 2. The first one is on a blank paper. The preamble of the said document Ex.A1 shows that the defendants 1 and 2 have given the said document to the plaintiff. It shows that the defendants 1 and 2 agreed to execute the sale deed within a period of three months. There is no agreement on the part of the plaintiff to pay the balance of sale consideration within the period mentioned in the said document and take the sale deed. Similarly in Ex.A2 also we find that the defendants 1 and 2 have given the agreement to the plaintiff. In the said document also the defendants 1 and 2 have agreed to execute the sale deed on or before 17.01.1974 after receiving the balance of Rs.790/- Again in the said document also there is no agreement on the part of the plaintiff to pay the balance within the period. It is therefore, clear from the terms that these two documents are only agreements by defendants 1 and 2 agreeing to do something in favour of the plaintiff on receipt of the amounts. But there is no agreement on the part of the plaintiff to do anything in favour of the defendants 1 and 2. From the above it is clear that it is not an agreement between the two parties. It is not a mutual agreement or contract."

30. On coming to the instant case on hand, this Court finds that the facts of the instant case are also placed on the similar line. Hence, without any hesitation, the proposition of law laid down in the above cited case can also be made applicable to the present case on hand. It may be significant to note here that the defendants herein have agreed to do something in favour of the plaintiff, but there is no agreement on the part of the plaintiff to do anything in favour of the defendants. This Court has therefore of view that Ex.A1 is not an agreement between two parties and equally there is no mutual agreement.

31. As observed herein above, since there is no contract, the question of specific performance does not arise. As per Section 15 of the Specific Relief Act, 1963, the contract can be enforced only by a party to a contract. The plaintiff is not a party at all to the contract and therefore, he is not entitled to obtain a decree in respect of the relief of specific performance.

32. Point No.1:

When no such objection is figured out in the written statement, can the principles of Order II Rule 2 of C.P.C., be made applicable in the appeal stage?

PW 1, who is the plaintiff in the suit has admitted in her chief examination that the defendants had made attempts to sell the property to third parties suppressing the agreement of sale in her favour and hence, she had filed a suit in O.S.No.245 of 2005 on the file of the learned District Munsif Court, Poonamalee, seeking the relief of permanent injunction restraining the defendants from alienating the suit property to the third parties excepting to her, reserving her right to file a suit for specific performance.

33. Admittedly the defendants in their written statement had never taken a plea that the present suit has been barred under Order 2 Rule 2 of CPC. Having failed to take such a plea at the earliest point of time i.e., at the time of filing written statement, "whether the defendants are eligible or entitled to advance their plea for the first time before the Court of appeal?"

34. Order 8 Rule 2 of the Code of Civil Procedure embodies that new facts must be specifically pleaded. It reads as follows;

The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

35. Rule 3 to Order 8 of the Code of Civil Procedure contemplates that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

36. On coming to the instant case on hand the following two facts are not new to the suit:

(a) Ex.A1 the so called contract of sale agreement was executed by the defendants on 24.08.2002, and

(b) The plaintiff had filed the suit in O.S.No.425 of 2005, on the file of the learned District Munsif, Poonamalee for permanent injunction.

37. It is apparent that the date viz.24.08.2002 on which Ex.A1 sale agreement was executed gave the parties a cause of action to initiate legal proceedings.

38. As contemplated under Rule 2 to Order 8 of C.P.C., the fact with regard to the filing of the suit in O.S.No.245 of 2005 on the file of the Learned District Munsif, Poonamalee is not a new fact and therefore, it is presumed that the plea of the defendants that the instant suit is barred by Order 2 Rule 2 could not be a new fact for the plaintiff.

39. It is imperative on the part of this Court, being the Appellate Court to look into the question of Law as to whether the suit is maintainable or not? Even though the defendants have failed to raise this plea with regard to the question of law in their written statement before the trial court, where a contract or transaction ex facie is illegal, the trial court is duty bound to take notice of illegality. This proposition of law is laid down in Surasai Balini vs. Phanindra reported in AIR 1964 SCC 1364. It is also to be borne in mind that when the question of bar of the suit under Order II Rule 2 C.P.C., is purely one of law capable of determination on the facts admitted or proved, the court is bound to raise it suo motu and decide it.

40. Order 2 Rule 2 of the Code of Civil Procedure deals with the suit to include the whole claim.

Sub Rule 1 reads as follows;

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. Sub Rule 2 reads as follows;

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. Sub Rule 3 reads as follows;

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.

41. Order 2, Rule 3 of the Civil Procedure Code reads as under:

3. Joinder of causes of action.-

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.

42. In the instant case there is no reference to show that the plaintiff was permitted to leave a portion of the claim which he is entitled to make in respect of the same cause of action.

43. It is mandatory on the part of the plaintiff to include the whole of the claim which she is entitled to make in respect of the cause of the action which accrued under Ex.A1. But on an harmonious reading of the plaint in O.S.No.425 of 2005 and the plaint of the suit in O.S.No.266 of 2005, this Court can easily infer that the plaintiff has split up the cause of action which accrued on Ex.A1 sale agreement.

44. In this regard, while advancing his arguments, the learned counsel for the defendants has placed reliance upon a decision in Shiv Kumar Sharma vs. Sanosh Kumar, AIR 2008 SC 171 to support his arguments, in which, the Apex Court in paragraph Nos.16, 17 and 18 has held that;

16. In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order II, Rule 3 provides for joinder of causes of action. Order II, Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefore no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit where for a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared.

17. If the respondent intended to claim damages and/ or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly.

18. Scope and ambit of jurisdiction of the High Court in determining an issue in an appeal filed in terms of Section 96 of the Code of Civil Procedure (which would be in continuation of the original suit) and exercising the power of judicial review under Articles 226 and 227 of the Constitution of India would be different. While in the former, the court, subject to the procedural flexibility as laid down under the statute is bound to act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial review, the High Court exercises a wider jurisdiction. No doubt, the court in an appropriate case, even in a civil suit may mould a relief but its jurisdiction in this behalf would be confined to Order VII, Rule 7 of the Code of Civil Procedure."

45. The Apex Court has also held that law in this behalf is absolutely clear, What cannot be done directly cannot be done indirectly.

46. The Bombay High Court in SNP Shipping Services Pvt., Ltd., & Others vs. World Tanker Carrier Corporation & another, AIR 2000 Bom 34 has held that a bare perusal of the provisions in Order 2 Rules 1 to 3 of Civil Procedure Code, 1908 make it clear that they are mandatory in nature. The term 'shall' and not 'may' occurs in all the rules. Thus under Order 2 Rule 1, the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

47. In the instant case on hand, in Paragraph No.5 of the plaint, the plaintiff has pleaded that he had filed the suit in O.S.No.425 of 2005, on the file of the District Munsif Court, Poonamallee for permanent injunction, restraining the defendants from alienating the suit property to any third parties, reserving her right to file the suit for specific performance.

48. In this connection, the learned counsel for the defendants has adverted that Order 2 Rule 2 of the Code of Civil Procedure, 1908 did not give any right to a party to the contract of sale to grant leave for himself or to reserve his right to file the suit for specific performance, after splitting the cause of action and that the power is only conferred with the Court.

49. Again it is imperative on the part of this Court to make it clear after referring the above cited decision viz., SNP Shipping Services Pvt., Ltd., & Others vs. World Tanker Carrier Corporation & another, AIR 2000 Bom 34 that the plaintiff should have made an application under Order 23 Rule 1 of the Code of Civil Procedure seeking leave of the Court to abandon the part of claim.

50. It may also be quite relevant to refer another decision in Sadashiv Joshi vs. State of Madhya Pradesh, AIR 2009 NOC 85 (MP), in which it is held that when in earlier suit petitioner had relinquished his right in substantial portion of land out of total land, said abandonment of land included in scheme in question by development authority, the petitioner had no further right to challenge either acquisition proceeding or inclusion of relinquished land in scheme in question.

51. As observed herein before, the application for the relinquishment of part of the claim could have been made in the earlier suit and not in the present suit. Such permission cannot be granted either in the suit or in the appeal by accepting the contention of the learned counsel for the plaintiff.

52. As rightly observed by the Apex Court in Shiv Kumar Sharma vs. Santosh Kumari, AIR 2008 SC 171 the Law in this behalf is absolutely clear that what cannot be done directly cannot be done indirectly.

53. On the same proposition of law, this Court finds that it may also be more relevant to refer the decision in N.Ravindran vs. V.Ramachandran, reported in AIR 2011 Madras 136, wherein this Court in Paragraph No.27 has observed that:

"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."

54. In an another decision viz. Bafna Developers, a registered partnership firm rep.by its Partner, Ashok G.Bafna vs. D.K.Natarajan & others, 2010 (4) LW 129, in Paragraph Nos.32 and 33 it is held that:

"32. The plaintiff has filed the suit O.S.No.783 of 1990 for permanent injunction restraining the defendants from alienating the suit property. Again the plaintiff has filed O.S.No.9 of 1991 seeking for a mandatory injunction directing the defendants to enter into necessary agreement with the President of India as per the draft agreement. All the contentious points raised between the parties in this suit were raised in the earlier suits. On Issue No.2, the trial Court has held that even though two previous suits were filed, the present suit, being one for specific performance of contract, is not barred under Order 2 Rule 2 C.P.C.

33. The learned Senior Counsel for the defendants submitted that both the earlier suits referred to the same set of facts and obligations and also proceeds on the footing of Clauses in Ex.A2 agreement and therefore the present suit is barred under Order 2 Rule 2 C.P.C. The learned Senior Counsel would further contend that as per Order 41, Rule 22 C.P.C., while supporting the decree, it is open to the respondents/defendants to challenge the findings on any specific issue, which were registered against them. Order 41, Rule 22 is a special provision, whereby the respondent, without filing any cross objection, can support the decree and also urge that any issue found against him is erroneous in addition to his right to support the decree on any other point.

In Paragraph No.34, the Division Bench of this Court has given a clear finding that:

"34. In order to attract Order 2 Rule 2 C.P.C., the earlier suit should 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 be subsequently entitled to sue in respect of the portion of his claim so omitted or relinquished. Order 2 Rule 2 C.P.C., is directed in securing the exhaustion of relief in respect of a cause of action."

55. In N.V.Srinivasa Murthy and others vs. Mariyamma (dead) by proposed Lrs and others, AIR 2005 SC 2897, the Supreme Court while explaining the scope and application of Order 2 Rule 2 of the Code of Civil Procedure has held in Paragraph No.13 as follows:

"13.In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted original suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original civil suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure."

56. The same principle of law has been laid down by this Court in Raptakos Brett and Company Pvt., Ltd., vs. Modi Business, 2006 (2) CTC 799, In Paragraph No.12 this Court has held as follows:

"12. The real test should be whether the causes of action now urged for the present suit, were available at the time of the filing of the first suit or not. In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non-mentioning of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of Order 2, Rule 2 of C.P.C. That apart, the relief what has been now asked for, should have been asked that time itself, but omitted to be done. Allowing the contention put forth by the learned Senior Counsel for the plaintiff that the defendant should be allowed to file the written statement raising such a defence plea; that issues have to be framed; that the parties must be allowed to let in evidence on that issues; and that the Court should decide on the same would be against the provisions under Order 2, Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to undergo the ordeal of trial. Apart from that, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his convenience, would also be against the public policy."

57. On the other hand, the learned counsel for the plaintiff/appellant while advancing his argument has made reference to Issue No.1, which has been formulated by the Trial Court. The first issue, runs as under:

"Whether it had been proved by the plaintiff that the sale agreement was entered into on 24.08.2002 and on that basis the amount had been paid."

This issue has been decided in favour of the plaintiff saying that the sale agreement dated 24.08.2002 exhibited as Ex.A1 and the payment of Rs.1,40,000/- towards advance had been proved on the side of the plaintiff. But, this portion of argument advanced by the learned counsel for the plaintiff is absolutely not discernible. Unfortunately, the Trial Court has not looked into the document under Ex.A1. It is pertinent to note here that as decided in the opening paragraphs of the discussion, Ex.A1 is an unilateral contract as it does not have any reference to show that the plaintiff has given her acceptance and therefore the Ex.A1 cannot be enforced by way of this suit.

58. With regard to the plea of bar of the present suit under Order 2 Rule 2, the learned counsel for the plaintiff has submitted that it is not in dispute that the suit in O.S.No.425 of 2005 was filed by the plaintiff seeking the relief of injunction against the defendants as they were making attempt to sell the property to some third parties. In this connection, he would contend that the cause of action for filing the earlier suit is entirely different from the cause of action of the present suit. Because, an attempt, made by the defendants to alienate the property in respect of which an agreement of sale was entered into had given the cause of action to the plaintiff to file the suit for getting a prohibitory order preventing the defendants from alienating the property. He has also adverted to that the cause of action to file the present suit for specific performance was not arisen at the time of filing the suit in O.S.No.425 of 2005 for the relief of injunction. He has added further that the cause of action for the suit in O.S.No.425 of 2005 and that of the instant suit in O.S.No.266 of 2005 are having recognisably different in nature and hence it cannot be heard to say that the present suit is barred by Order 2 Rule 2 of the Code of Civil Procedure.

59. In support of his contention, he has placed reliance upon the decision in Gengadurai Naicker and another vs. A.Chockalingam and another, (2003) 1 MLJ 206. In this case it is held that merely because the execution of the sale agreement has been mentioned in both suits, it cannot be said that the cause of action is identical. It is also held that the evidence to support the claim to the present suit is entirely different from the evidence that required to be adduced in the earlier suit.

60. The learned counsel for the plaintiff has also placed reliance upon an another decision in Gurbux Singh Vs. Bhooballal, AIR 1964 SC 1850. In this case, the Larger Bench of the Hon'ble Supreme Court has held that in order to succeed with the plea of a bar under Order 2 Rule 2(3) of the Code of Civil Procedure, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based;

(2) that in respect of that cause of action the plaintiff was entitled to more than one relief;

(3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.

It is also held that from this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.

61. It is also observed that it is for this reason that a plea of a bar under Order 2 Rule 2 of the Code of Civil Procedure can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the causes of action in the two suits.

62. Apart from this the learned counsel for the plaintiff has also placed reliance upon the decision in Gurjit Singh vs. Bant Singh, 1996 AIHC 847. In this case, the suit of the plaintiff for specific performance of the agreement dated October 20, 1987 regarding the sale of 24 kanals of land, was decreed by the trial Court. The defendant's appeal was rejected by the learned Additional District Judge. The defendant has, thus, approached the High Court through the second appeal. On considering the related facts of the case, the Punjab and Haryana High Court has held that the cause of action for instituting a suit for specific performance was not accrued on April 7, 1988 when the respondent had filed a suit for an injunction to restrain the appellant from alienating the land in dispute to any one else. The cause of action for initiating the present proceedings was arisen after June 15, 1988 when there was failure to execute the sale deed. Since the causes of action were different, the provisions of Order 2 Rule 2 are not attracted. Still further, a bare perusal of the provision shows that a plaintiff must omit or intentionally relinquish a portion of his claim before he can be debarred from suing in respect thereof. Under this circumstance, the Punjab and Haryana High Court has held that there was no omission on the part of the respondent to sue in respect of the claim for specific performance of the agreement and that there is no waiver of the rights under the contract.

63. In an another decision in Mrs.Saradammal @ Saradambal vs. G.S.Srinath, reported in 2008(4) TLNJ 554 (Civil) when the earlier suit for permanent injunction was pending another suit was filed for specific performance on the same suit property. The defendant in his written statement had sought rejection of later suit as no liberty was obtained in the earlier suit. That application was rejected. On revision, the High Court has held that non- obtaining of liberty to file a fresh suit under Order 23 Rule 3 & 4 of the Code of Civil Procedure is curable procedural irregularity and that the second suit viz.O.S.No.77 of 2007 on the file of the learned Principle District Judge, Tiruvallur by the respondent/plaintiff is not barred under Order 2 Rule 2 of the Code of Civil Procedure.

64. In regard to the plea of a bar under Order 2 Rule 2 of the Code of Civil Procedure taken by the respondents, this Court on overall assessment of cumulative facts and circumstances of the case, has held that the decisions quoted on behalf of the appellant are not made applicable to the instant case on hand.

65. It is to be borne in mind that the principle embodied in Order 2 Rule 2 of the Code of Civil Procedure cannot be mis-interpreted or mishandled. It can also be not argued that the principles enunciated under Order 2 Rule 2 could be made applicable provided the previous suit was disposed of and the fresh suit is filed with the same cause of action for fresh relief.

66. To attract Order 2 Rule 2 of the Code of Civil Procedure, the real test should be as to whether the causes of action were available to the plaintiff at the time of filing of the first suit or not. As decided by the Apex Court in N.V.Srinivasa Murthy and Ors. vs. Mariyamma (dead) by proposed L.Rs. and Ors., AIR 2005 SC 2897 and in Raptakos Brett and Company Pvt., Ltd., vs. Modi Business Centre Pvt., Ltd., 2006 (2) CTC 799, the cause of action for filing of the suit for specific performance was very well available at the time of filing of the first suit in O.S.No.425 of 2005 for the relief of injunction by the plaintiff. Apart from this, the relief of specific performance should have been asked by the plaintiff at that time itself, but it was omitted to be done so.

67. Keeping in view of the above fact, this court has endorsed the view of the Apex Court that allowing the plaintiff to ask the relief in piece meal according to his convenience is against the public policy and this Court is also of considered view that the trial Court has rightly applied the principles embodied under Order II Rule 2 of the Code of Civil Procedure.

68. Point No.2 Readiness and Willingness:

The learned counsel for the plaintiff would submit that in Ex.A1 nowhere it is mentioned about the further payment other than Rs.1,00,000/-. He has also argued that apart from this amount, the plaintiff had paid a sum of Rs.40,000/- on 07.09.2002 and as per the terms of the sale agreement, the eleven months period starts next to the handing over of the vacant possession. He has also emphasised that this is the most important condition to be fulfilled by the defendants.

69. P.W.1 in her chief-examination has stated that even after several demands the defendants did not come forward to sell the property. She has also stated that she had been ready and willing to pay the balance of sale price. It is an admitted fact that the sale consideration was fixed at Rs.11,500/- per Cent and that the defendants had agreed to sell 1 Acre 17 Cents. Accordingly, the total sale consideration is calculated at Rs.13,45,500/-. But, it has been wrongly mentioned in the plaint as Rs.11,50,000/-. This mistake has been admitted by P.W.1 in her cross-examination.

70. It is pertinent to note here that a suit for partition in O.S.No.397 of 2007 was filed on the file of the learned District Judge, Thiruvallur. In this connection, it is necessitated for this Court to refer the evidence given by D.W.1 namely Kumar alias Robert Fernandus. He has stated that necessary parties have not been impleaded in the suit and that his sisters and others had filed the suit in O.S.No.397 of 2007 claiming 43/6th shares in the suit property for partition on the file of the learned District Judge, Thiruvallur. This fact has also been admitted by P.W.1 and she would state that M/s.J.P. Real Estates' proprietor Mr.Deenadhayalan(D.W.2) had appeared in that suit. P.W.1 has admitted in her cross-examination that she was working as Yoga Teacher and that she was not an income tax assessee. The main contention of the defendants is that the plaintiff does not have any source to pay the money and that even after filing of the suit she did not have any source to deposit the money into the Court. This contention of the defendants is not able to be disproved by the plaintiff. She has also admitted in her cross-examination that she did not send any lawyers notice expressing her readiness and willingness to pay the balance of sale consideration and to have the sale deed executed in her favour. In this connection, the learned Trail Judge in his Judgment has observed that even though the plaintiff had stated that she was always ready and willing to pay the balance of sale consideration and complete the sale, both in the plaint as well as in her oral evidence, she did not substantiate this fact.

71. In this connection, the learned counsel for the defendants has submitted that as rightly observed by the learned Trail Judge, the plaintiff had not examined any competent witness, who could speak about the availability of the money and resources for completion of the contract. But, the learned counsel for the plaintiff in support of his contention with regard to the readiness and willingness has placed reliance upon the decision in Ramani Ammal vs. Susilammal, AIR 1991 Madras 163. In this case, the scope and application of Sections 20 and 12(3) of the Specific Relief Act 1963 have been explained by the Division Bench of this Court. It is held that where the vendee suing for specific performance of a contract of sale also, in the same suit, asked in the alternative, for the relief of refund of earnest money or advance money, paid under the contract of sale can as an aggrieved person, prefer appeal against the Judgment and decree of the first Court which granted him only the relief of return of the earnest money or advance money, while denying him the relief of specific performance.

72. It is also held that where as per contract of sale the vendor had agreed to give vacant possession of portion in possession of the tenant at the time of sale deed but had not taken any steps to evict the tenant and was unable to give vacant possession but the vendee agreed to take the sale deed without vacant possession, the vendee was entitled to ask for executing the sale deed without vacant possession with the tenant in view of S.12(3). In such a situation, doctrine of frustration of contract contained in S.56 of the contract was not attracted. The vendor could not take advantage of his own wrong. He could give his option in appeal.

73. This Court has carefully gone through the above cited decision and of considered view that it is not made applicable to the instant case on hand as the proposition of law laid down in the above cited case is entirely different.

74. The learned counsel for the plaintiff has also placed reliance upon an another decision in Mrs.Chandnee Widya Vati Madden vs. Dr.C.L.Katial and others, AIR 1964 SC 978. In this case, the plaintiff entered with a contract of sale of a house belonging to the defendant on the plot granted by the Government. One of the terms of the contract was that the vendor shall obtain necessary permission of the Government for the sale within two months of the agreement and if the permission was not forthcoming within that time it was open to the vendees to extend the date or to treat the agreement as cancelled. In the suit filed by the vendees for specific performance of the contract or in the alternative for damages it was found that the vendees were always willing and ready to perform their part of the contract, that it was the vendor who wilfully refused to perform her part of contract and that the time was not of the essence of the contract. Under this circumstance, the Apex Court has held that the contract was not a contingent contract and that the parties had agreed to bind themselves by the terms of the document executed between them. The Court had got to enforce the terms of the contract and to enjoin upon the vendor to make the necessary application for permission. In the event of the permission being refused the vendees shall be entitled to the damages.

75. The above cited decision has also been considered by this Court and of considered view that it is also not made applicable to the case on hand because as observed in the earlier paragraph, Ex.A1 sale agreement cannot be enforced as the plaintiff has not consented or accepted the proposals made by the defendants as it is seemed to be a void one.

76. In an another decision viz. Unni Madhavan Nair vs. Kamalakshy and others, AIR 1993 Kerala 357, which has been relied upon by the learned counsel for the plaintiff, the plaintiff was found ready and willing to perform his part of contract. But, the defendant had refused to perform his obligations. Under this circumstance, it was held by the Kerala High Court, the delay attributable to conduct of defendant and hence the decree for specific performance could not be denied on the ground that there was a hike in price due to delay.

77. The above decision is also not made applicable to the instant case, because from the testimonies of P.W.1 to P.W.3 and the documents exhibited on behalf of the plaintiff, this Court is able to infer that the plaintiff was not at all ready and willing to perform her part of contract. Even she has not made out a case that she was having resources of fund to meet out the whole sale consideration, which has been fixed in Ex.A1.

78. The learned counsel for the plaintiff has also placed reliance upon an another decision in Rathinam Chettiar vs. Embar Naidu, 1999 (III) CTC 394, wherein the learned single Judge of this Court has held that the purchaser need not actually tender the price or deposit the consideration in Court except when so directed by Court.

79. This Court has also considered the above cited decision and found that the plaintiff / purchaser has not at all established that she had been always ready and willing to pay the balance of sale consideration and get the sale deed executed in her favour.

80. Considering the related facts and circumstances of the case and on analysing the evidences of P.W.1 to P.W.3, this Court finds that the decision in Shafiq Ahmad vs. Sayeedan, AIR 1984 Allahabad 140 is also not made applicable.

81. Section 16 of the Specific Relief Act, 1963 deals with personal bars to relief. Section 16(c) reads as under:

Specific performance of a contract can not be enforced in favour of a person,-

(c)who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms of performance of which has been prevented or waived by the defendant.

Explanation.- For the purpose of clause (c),-

i. where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;

ii. the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

82. On coming to the instant case on hand, though the plaintiff has stated that she was ready and willing to perform her part of contract, no acceptable legal evidence is adduced in support of her contention. It is also significant to note here that readiness and willingness of the plaintiff is not confined only to the stage of filing of the plaint but also at the subsequent stage viz., at hearing and all along. This proposition of law has been laid down by the Division Bench of Apex Court in Inderchand Jain (D) through LRs. vs. Motilal (D) through LRs., 2009 (5) CTC 365. In this case, while penning down the Judgment on behalf of the Division Bench, His Lordship Hon'ble Mr.JUSTICE S.B.SINHA has held that Section 16(c) of the Specific Relief Act, 1963 mandates that the discretionary relief of specific performance of the contract can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract. Such readiness and willingness on the part of the plaintiff is not confined only to the stage of filing of the Plaint but also at the subsequent state, viz., at the hearing.

83. While penning down the Judgment, His Lordship has also quoted the decision in Umabai and another vs. Nilkanth Dhondiba Chavan (Dead) by LRs., and another, 2005 (4) CTC 55 (SC) : 2005 (6) SCC 243. In paragraph No.30 of the above decision it is held as follows:

30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.

84. The above decision is squarely made applicable to the instant case on hand. The contention of the plaintiff with regard to her readiness and willingness is to be determined having regard to the entire attending circumstance. The mere averment in the plaint or in her chief-examination that she was ready and willing to perform her part of contract is not at all sufficient and her conduct must be judged having regard to the entirety of the pleadings as also the evidences brought on records.

85. Section 20 of the Specific Relief Act, 1963 deals with the discretion as to decreeing specific performance. It reads as follows:

20. Discretion as to decreeing specific performance.-

(1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

(2) The following are cases in which Court may properly exercise discretion not to decree specific performance-

(3) ........

(4). ........

86. Though this Court is having discretionary power to grant the relief of specific performance that discretion must be sound and reasonable and guided by judicial principles. It is also to be noted that the discretion shall not be exercised in an arbitrary manner.

87. On coming to the instant case on hand, as adumbrated supra, Ex.A1 itself cannot be enforced as there is no contract between the plaintiff and the defendants, because from the averments of Ex.A1, the Court is not able to find anything signifying the assent of the plaintiff. At the most, the averments of Ex.A1 may be termed as undertakings by the defendants.

88. As contemplated under Section 10 of the Indian Contract Act, 1872, all agreements are contracts, if they are made by free consent of the parties competent to the contract. Since there is no agreement at all by the plaintiff in the present case, the plaintiff is not entitled to the relief of specific performance. As envisaged under Section 15 of the Specific Relief Act, 1963, the contract can be enforced only by a party to a contract. Virtually, the plaintiff is not a party at all to the contract and therefore he is not entitled to obtain a decree from Court for specific performance and therefore the discretionary power of the Court cannot be exercised in this case in favour of the plaintiff under Section 20 of the Specific Relief Act.

89. Point No.3: The mere acceptance of receipt of money of Rs.1,40,000/- will not give any entitlement to the plaintiff to have the relief of specific performance in her favour.

90. Point No.4: From the conduct of the plaintiff and from her evidence as well as the evidence given by P.W.2 and P.W.3, this Court would go to an extent of saying that the plaintiff has alone made misrepresentation before this Court with a view to obtain the relief of specific performance.

91. In the up-short of detailed discussions specified supra and on overall assessment of cumulative facts and circumstances of the case, this Court is of definite view that:

a) the document under Ex.A1 (agreement of sale) does not constitute a contract between the plaintiff and the defendants. The plaintiff does not signify her ascent and hence this Court is of view that there is no agreement at all in the present case,

b) the present suit is barred by Order 2 Rule 2 of the Code of Civil Procedure,

c) since the suit of the plaintiff has been hit by the above said two proposition of law, the question of readiness and willingness does not arise; and

d) since the plaintiff is not at all a party to the contract, she has mis-represented before this Court as if she is a party to the contract for which she is not entitled to get the relief of specific performance.

92. Admittedly, a sum of Rs.1,40,000/- has been paid on behalf of the plaintiff to the defendants. But, in the suit the plaintiff has not asked for any alternative relief to return the advance amount and hence the trial Court has not given a finding to that effect. To get the advance amount refunded either with interest or without interest, the plaintiff is at liberty to take appropriate steps before the competent Courts of law.

93. In the result, the appeal is dismissed with costs and the Judgment and decree dated 18.12.2008, made in O.S.No.266 of 2005, on the file of the learned Additional District Judge, (Fast Track Court-II), Poonamallee are confirmed. Consequently, connected miscellaneous petitions are closed.

krk To

1.The Additional District Judge, Fast Track Court-II, Poonamallee

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