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17. The applications filed by the respondent/plaintiff for amendment of the plaint to include the relief of specific performance as well as for excluding the period spent in prosecuting the suit in O.S.Nos.202 and 203 http://www.judis.nic.in Osa 24 of 2019 of 2007, were opposed by the appellants/defendants by filing a counter. According to the appellants, the Civil Appeal Nos. 6372 and 6373 of 2012 filed before the Honourable Supreme Court were allowed striking off the plaint in O.S. Nos. 202 and 203 of 2007, which were filed for specific performance before the Principal District Court, Thiruvallur and therefore, the applications for amendment to include the relief of specific performance in C.S. No. 831 and 833 of 2005, if allowed, will amount to contravening the order passed by the Honourable Supreme Court. Therefore, the appellants/defendants prayed for dismissing the application for amendment of the pleadings in the plaint as well as the application to exclude the period for the purpose of limitation, as devoid of merits.

19. Mr.Ravi Paul, learned Senior Counsel appearing for the appellants, at the outset, focused his submissions with respect to OSA Nos. 105 and 141 of 2009 arising out of Application Nos.607 and 617 of 2013 filed under Order VI Rule 17 of CPC for amendment of the plaint in C.S. Nos.831 and 833 of 2005. He would submit that the learned single Judge ought not to have permitted the respondent/plaintiff to amend the prayer in the suits to include the relief of specific performance when it is clearly barred under Order II Rule 2 of the CPC. As per Order II Rule 2 (2) of CPC, it is mandatory for the plaintiff, who institute a suit, to include the whole of http://www.judis.nic.in Osa 24 of 2019 the claim which he is entitled to make in respect of the cause of action. In this case, the cause of action for the respondent/plaintiff to seek the relief of specific performance was very much available at the time of institution of the suits in C.S. Nos.831 and 833 of 2005, however, for the reasons best known, the respondent/plaintiff has only filed the suits for bare injunction. During the pendency of C.S. Nos. 831 and 833 of 2005 filed before this Court, the respondent/plaintiff has filed separate suits in O.S. No. 202 and 203 of 2007 before the Principal District Judge, Thiruvallur for specific performance which were subsequently struck of by the Honourable Supreme Court at the instance of the appellants/defendants herein. After striking of the plaint in O.S. Nos. 202 and 203 of 2007 by the Honourable Supreme Court, the respondent/plaintiff had taken out the application for amendment to include the relief of specific performance. In this regard, the learned counsel for the appellants/defendants submitted that the cause of action for filing the suits in C.S. Nos. 831 and 833 of 2005 before this Court and the cause of action for filing the suits in O.S. Nos. 202 and 203 are one and the same. Knowing fully well that the suits for specific performance with possession as prayed for in O.S. Nos. 202 and 203 of 2007 on the file of http://www.judis.nic.in Osa 24 of 2019 Principal District Judge, Thiruvallur are suits for land, in order to bring the same within the jurisdiction of this Court, the plaintiff has intentionally relinquished the relief of specific performance and possession at the time of filing the suits in C.S. Nos. 831 and 833 of 2005. Therefore, the amendment sought for by the plaintiff is barred under Order II Rule 2 (2) of CPC. While so, the learned single Judge ought not to have permitted amendment of the suits in C.S. No. 831 and 833 of 2005 to include the relief of specific performance. In this context, the learned Senior counsel for the appellants/defendants placed reliance on the decision of the Honourable Supreme Court in the case of (Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others reported in (2010) 14 Supreme Court Cases 596. Useful reference can be made to the observations in that judgment in para No.30, which reads as follows:-

50. It is contended by the learned Senior Counsel for the respondent/ plaintiff that the suits in O.S. Nos. 202 and 203 of 2007 were filed on the strength of the ratio laid down by the Division Bench of this Court in Vimalchand case mentioned supra, but it was held to be bad in law by the Honourable Supreme Court of India. The learned Single Judge, taking note of the fact that the appellant cannot be found fault with especially when the suits in O.S. Nos. 202 and 203 of 2007 were filed based on Vimalchand http://www.judis.nic.in Osa 24 of 2019 case, but it was subsequently overruled by the Honourable Supreme Court, has permitted amendments to be made to the plaint in C.S. Nos. 831 and 833 of 2005. Further, the amendment is sought to be carried out in the same suit and not in the subsequent suit. Therefore, the learned Single Judge permitted amendments to be made to incorporate the relief of specific performance in C.S. Nos. 831 and 833 of 2005. However, we find that the respondent/plaintiff has independently filed two suits in O.S. Nos.202 and 203 of 2007 before the Principal District Judge, Thiruvallur, for specific performance, but they were struck off by the Honourable Supreme Court since the plaintiff has not obtained any leave in C.S. Nos. 831 and 833 of 2005. By reason of the order passed by the Honourable Supreme Court, the issue with respect to the right of the respondent/plaintiff to seek for specific performance has reached a finality. Further, it is the contention of the learned Senior Counsel for the respondent/ plaintiff that though the suits in O.S. Nos. 202 and 203 of 2007 were struck off by the Honourable Supreme Court, yet, the respondent/plaintiff is entitled to seek for the relief of specific performance by way of amendment in the present suit. We are unable to agree with such submission of the learned Senior counsel for the http://www.judis.nic.in Osa 24 of 2019 respondent/plaintiff. Even to seek amendment of the pleadings in C.S. Nos. 831 and 833 of 2005, the respondent/plaintiff ought to have obtained leave as required under Order II Rule 2 of CPC, but no such leave has been obtained in this case. Therefore, it is no longer open to the respondent/plaintiff to seek amendment in C.S. Nos. 831 and 833 of 2005 to include the relief of specific performance. In this context, we gain strength from the decision of the Honourable Supreme Court in Sathyadhan Ghosal vs. Deorajin Debi, reported in AIR 1960 SC 941 mentioned supra. In that decision, it has been clearly held that primarily the principles of res judicata applies between past litigation and future litigation. When a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceeding and the decision is final, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. In the present case, the suit for specific performance filed by the respondent/plaintiff in O.S. Nos. 202 and 203 of 2007 has become final pursuant to the order dated 07.09.2012 passed by the Honourable Supreme Court, striking off those suits. Thereafter, it is not open to the respondent/plaintiff to seek for the very same relief of http://www.judis.nic.in Osa 24 of 2019 specific performance to be inserted by way of amendment in the suits in C.S. Nos. 831 and 833 of 2005, which were only filed for bare injunction.

Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any grounds not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.”

54. In this case, the respondent/plaintiff sought for incorporating the relief of specific performance by way of amendment to the plaints in C.S. Nos. 831 and 833 of 2005 in the year 2012. It is the contention of the appellants/ defendants that for excluding the period spent in prosecuting the suits in O.S. Nos. 202 and 203 of 2007, there is no pleading made in the plaint in C.S. Nos. 831 and 833 of 2005 or the plaintiff did not seek to amend the plaint to that extent. While so, in the absence of any pleading for excluding the period spent in prosecuting the suits in O.S. Nos. 202 and 203 of 2007, in the plaint in C.S. Nos. 831 and 833 of 2005, the delay in seeking amendment to include the relief of specific performance cannot be permitted. Furthermore, the Honourable Supreme Court had struck off the suits in O.S. Nos. 202 and 203 of 2007 at the instance of the http://www.judis.nic.in Osa 24 of 2019 appellants/defendants and the exclusion of time spent in prosecuting O.S. Nos. 202 and 203 of 2007 for permitting amendment to include the prayer for specific performance will be in direct conflict with the order passed by the Honourable Supreme Court. Reliance was also placed on Section 14 of the Limitation Act to contend that the subsequent suits in O.S. Nos.202 and 203 of 2007 were not prosecuted with due diligence and in good faith. While the suits in C.S. Nos.831 and 833 of 2005 were filed before this Court for bare injunction, with the same set of facts, the subsequent suits in O.S. Nos.202 and 203 of 2007 were filed before the Principal District Court, Thiruvallur. Thus, the action of the respondent/plaintiff lacks bona fide and it is not in good faith warranting the learned single Judge to exclude the period spent in prosecuting O.S. Nos. 202 and 203 of 2007 for the purpose of permitting amendments to be made in C.S. Nos. 831 and 833 of 2005. In this context, reliance was placed on the decision of the Honourable Supreme Court in Zafar Khan's case mentioned supra to contend that the benefit of Section 14 of the Limitation Act cannot be extended to the appellants/defendants when the filing of the subsequent suits in O.S. Nos. 202 and 203 of 2007 is not bona fide and in good faith.