Punjab-Haryana High Court
Smt. Parkash Kumari vs Balwant Singh And Ors. on 27 January, 2005
Equivalent citations: (2005)139PLR786
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for specific performance of agreement dated 4.4.1966 was dismissed in appeal.
2. Defendant Harbans purchased the land in dispute measuring 112 kanals 3 marlas from the State Government for Rs. 5,600/-. Defendant Harblas was a Harijan and could not make the payment of entire sale consideration. A sum of Rs. 2000/- was treated as a grant but the remaining amount of Rs. 3,600/- was payable by half yearly instalments. It was the case; of the plaintiff that the defendant approached the plaintiff to pay the amount of Rs. 3,600/- in instalments on behalf of Harblas defendant and that Harbans agreed to transfer 1/2 of the land in favour of plaintiff. It is the case of the plaintiff that possession of land was given to him but subsequently in the year 1972 Harblas took possession of said 1/2 share. The defendant was asked many times in the year 1975 to execute the sale deed in terms of the agreement but he refused to do so and sold the land measuring 71 Kanals 5 Marias to Kulwant Singh and Balwant Singh, defendants No. 2 and 3 respectively. The plaintiff filed a suit for specific performance of the agreement in June, 1977, inter alia, on the ground that she has paid the instalments in terms of the agreement but the defendant has failed to execute the sale deed and, therefore, sought the intervention of the Court.
3. The defendants contested the said suit. It was the stand of the defendants that Harbans defendant had never entered into any contract with the plaintiff nor any contract could be executed. It was also pleaded that the plaintiff never performed her part of the alleged contract nor possession was ever given to the plaintiff. Still further, it was pleaded that the plaintiff earlier filed a suit for injunction which was dismissed under Order 9 Rule 8 of the Code of Civil Procedure and, therefore, present suit is barred. The suit was also stated to be not competent in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. It was also pleaded that defendants No. 2 and 3 are bona fide purchasers for consideration.
4. The learned trial Court decreed the suit holding that the agreement dated 4.4.1966 was executed and that the plaintiff had made payment of instalments in terms of the agreement and, thus, the plaintiff is entitled to seek specific performance of the agreement. The defendants were directed to execute the sale deed. However, in appeal, the findings recorded by the learned trial Court were reversed. It was found that the agreement Exhibit P-1 is not signed by the plaintiff and, thus, it is unilateral document, specific performance of which cannot be sought by the plaintiff. It was also found that none of the attesting witnesses of the agreement was produced and, therefore, the execution of the agreement is not proved. Still further, it has been found that the plaintiff has produced receipts Exhibit P-3 to P-7 in respect of payment made by Harblas through Parkash Chand i.e. husband of the plaintiff, but these payments are not sufficient to hold that the plaintiff was ready and willing to perform her part of the contract. As a matter of fact, the learned first Appellate Court found that the records does not show that the payments have been made on behalf of the plaintiff inasmuch as Exhibits D-1 to D-19 are the receipts in respect of instalments paid by defendant Harblas. Thus, the learned first Appellate Court concluded that the plaintiff is not proved to have paid the sale consideration of Rs. 3,600/- to the State Government in pursuance of the agreement or that she had performed her part of the contract. Still further, the learned first Appellate Court found that the claim of the plaintiff for improvement was found to be untenable. She has remained in possession of the land from the year 1966 until the year 1972. It was also found that subsequent suit for specific performance i.e. the present suit, is not barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure because the earlier suit for injunction was not competent.
5. The learned counsel for the appellant has vehemently argued that the plaintiff has performed her part of the contract as she was required to make payment of sale consideration in instalments which is proved from the receipts Exhibits P-3 to P-7 as well as from the testimony of PW2 Jagat Ram, Clerk from the Tehsil Office, Phagwara.
6. The learned first Appellate Court has found that the payments are reflected to have been made by defendant Harblas through Parkash Chand. Parkash Chand is the husband of the plaintiff. Though the learned first Appellate Court has not granted the benefit of such payments to the plaintiff but even if such payments have been made at the instance of the plaintiff, still it would not show that the plaintiff was ready and willing to perform her part of the contract. Exhibits P-3 to P-7 are only five receipts whereas the defendants have produced receipts Exhibits D-1 to D-19 regarding payment of instalments. Had the plaintiff made all payments, receipts thereof would be in her possession and could not have been produced by the defendants. Thus, the plaintiff cannot be said to be ready and willing to perform her part of the contract. Still further, the possession of the suit land was taken by the defendant in the year 1972. It is the case of the plaintiff that possession was handed over in terms of the agreement and the breach of the agreement was committed by the defendant in the year 1972 whereas the suit has been filed on 14.6.1977. The plaintiff has alleged the suit to be within limitation on the ground that she has made the payment in instalments till 8th April, 1975. The payment in terms of the agreement is one of the factors to determine when the cause of action arose to the plaintiff. Had the plaintiff continued to remain in possession, it was possible for the plaintiff to assert that cause of action arose on payment of last instalment on 8th April, 1975 but possession having, admittedly, with the defendant since the year 1972, the cause of action to seek specific performance of the agreement would arise to the plaintiff in the year 1972 and not in April, 1975.
7. Still further, the plaintiff has earlier filed a suit for permanent injunction Exhibit DA on 20.07.1976. The plaintiff could have claimed specific performance of the agreement as well in the said suit. In fact, that was the objection raised by the defendant Harblas in the written statement Exhibit DB. Issues were framed. However, the said suit was dismissed in default in terms of the provisions of Order 9 Rule 8 of the Code of Civil Procedure, 1908 (hereinafter to be referred as "the Code") on 6.8.1977 when counsel for the defendant was present but none appeared for the plaintiff. The question which arose is whether suit for specific performance is maintainable after dismissal of earlier suit for permanent injunction in default.
8. In terms of Order 9 Rule 9 of the Code, where a suit is wholly or partly dismissed under Rule 8 i.e. in the absence of the plaintiff but in the presence of the defendant, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. Whether the same cause of action contemplated under Order 9 Rule 9 of the Code would be the cause of action on the basis of which the plaintiff filed a suit for injunction but also include a cause of action which could have been included in the suit but the plaintiff omitted to do so. In other words, a suit which is barred in terms of Order 2 Rule 2 of the Code would also be a suit barred in terms of Order 9 Rule 9 of the Code.
9. As per plaintiff, the defendant Harblas re-entered into land in the year 1972. The instalments were paid till April, 1975. Thus, she has a right to seek execution of the sale deed from the defendant on payment of last instalment.
10. The suit for permanent injunction was filed on 20.07.1976. Thus, while filing the said suit for permanent injunction, the plaintiff could claim decree for specific performance in the said suit but has failed to include such claim in the said suit. It has been held by this Court in the judgments reported as Surjeet Kumar v. Anil Kumar, (1997-3)117 Punjab Law Reporter 636; Rao Narain Singh (deceased) and Ors. v. Smt. Durga Devi (deceased) and Ors., (1997-3)117 Punjab Law Reporter 760; Tarsem Singh v. Sibu Ram, (1998-1)118 Punjab Law Reporter 574; and Smt. Ralli and Ors. v. Smt. Satinderjit Kaur, (1998-1)118 Punjab Law Reporter 666, that such suit would be barred in view of the principles laid down under Order 2 Rule 2 of the Code. The following extract from Smt. Ralli's case (supra) would be relevant:-
"As regards the judgments cited by counsel for the plaintiff, it is true that in Sardari Mal's (A.I.R. 1925 Lah. 459(2)) and Bhagwan Kaur's 1991 P.L.J. 681 cases (supra) despite the filing of suits for injunction, subsequent suits for specific performance of the agreement were held to be maintainable and Order 2 Rule 2, of the Code was ruled as no bar to the maintainability of suits for specific performance. But in my view, plaintiff cannot derive any help from the decisions in those cases because of the law on the subject settled by the Apex Court in Sidramappa's Case (supra). In Bhagwan Kaur's case (supra), the judgment of the Apex Court in Sidramappa's A.I.R. 1970 S.C. 1050 case (supra) was not noticed. As already seen, foundation in both the suits being the same and leave having not been sought from the Court to sue for such relief afterwards, suit for specific performance is clearly barred under Order 2 Rule 2, Code of Civil Procedure."
11. In view thereof, I am of the opinion that the plaintiff having omitted to claim the relief for specific performance while filing suit for permanent injunction earlier, she is precluded from claiming the decree for specific performance in a subsequent suit.
12. In terms of Order 9 Rule 9 of the Code, subsequent suit on the same cause of action is not maintainable. The same cause of action would also include the cause of action on which the plaintiff could have claimed the relief in the previous suit. Since the cause of action to claim specific performance of the agreement was available to the plaintiff at the time of filing of previous suit for permanent injunction, the present suit would be barred in terms of Order 9 Rule 9 of the Code as well.
13. Since the plaintiff has failed to claim the relief of specific performance in the earlier suit for permanent injunction filed after the cause of action to claim specific performance arose to the plaintiff, the present suit is not maintainable.
14. Consequently, I do not find any merit in the present appeal though for the reasons different from what were recorded by the learned first Appellate Court.
Dismissed.