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2007 DIGILAW 1541 (MAD)

Rajagopal (Died) & Others v. Perumal

2007-05-16

V.DHANAPALAN

body2007
Judgment : V. Dhanapalan, J. Aggrieved by the judgment, dated 22. 1995 made in A.S.No.167 of 1991 on the file of the Subordinate Judge, Karur, the legal heirs of the deceased defendant have preferred this appeal. 2. Originally the suit properties belonged to the defendant, the deceased Rajagopal. In respect of the 2nd item of the suit properties, the defendant executed a mortgage deed in favour of one Govindarajulu Naidu on 21. 1981 as per Exhibit A2-Registered Mortgage Deed for a sum of Rs.3,000/-. According to the plaintiff, namely, Perumal, the said Govindarajulu Naidu assigned the mortgage deed, dated 21. 1981 in favour of the plaintiff on 212. 1984, after receiving a sum of Rs.3,000/-from him. It is the case of the plaintiff that the defendant had executed a sale agreement in favour of the plaintiff on 212. 1984 and the sale price was fixed as Rs.14,250/-and prior to the execution of the sale agreement, the defendant had received a sum of Rs. 2,300/- and Rs.5,000/-as advance sale consideration. The defendant had also adjusted the mortgage amount of Rs.3,000/- towards balance sale consideration. Thereafter, the defendant handed over possession of the 1st item of the suit properties to the plaintiff As per the sale agreement, the plaintiff has to pay the balance amount of Rs.3,950/- to the defendant on or before 22. 1988 and after receiving the said amount, the defendant has to execute the sale deed in favour of the plaintiff. Thereafter, the possession of Item No.2 of the suit properties was handed over to the plaintiff. Since the defendant interfered with the possession of the suit properties by the plaintiff, the plaintiff filed a suit in O.S.No.379 of 1988 for injunction. 3. The defendant denied each and every averment made in the plaint, stating that he has not entered into any agreement with the plaintiff. The alleged execution of the sale agreement for Rs.14,250/- is specifically denied by him as forgery and that the defendant has not received any paise at any time. The defendant admitted that he and his son had mortgaged the suit properties to one Govindarajulu Naidu for Rs.3,000/-and handed over the possession of the properties to the said mortgagee and he alone is in possession and enjoyment of the properties till date. The defendant admitted that he and his son had mortgaged the suit properties to one Govindarajulu Naidu for Rs.3,000/-and handed over the possession of the properties to the said mortgagee and he alone is in possession and enjoyment of the properties till date. He contended that the suit filed by the plaintiff in O.S.No.379 of 1988 is an ill-advised attempt to get into the suit properties and prayed for dismissal of the same. .4. The Trial Court on a perusal of Exhibit A8-Acknowledgment Card and Exhibit A-1-Sale Agreement dismissed the suit upholding that the alleged Sale Agreement is a forged document and the entire claim of the plaintiff bristles with suspicion and falsity. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal in A.S.No.167 of 1991. 5. The Lower Appellate Court compared the signature of the defendant in Exhibit A-1– Sale Agreement with his signatures in Exhibit A2-Registered mortgage deed executed in the year 1981, Exhibit A-8-Acknowledgment Card of the year 1988, Vakalath and Written Statement of the defendant and after assigning valid reasons came to the conclusion that the signature in Exhibit A-1-Sale Agreement is the signature of the defendant, thereby reversed the judgment of the Trial Court and decreed the suit in favour of the plaintiff. Aggrieved by the finding of the Lower Appellate Court, the legal heirs of the deceased defendant have preferred this appeal. .6. At the time of admitting this Second Appeal on 15. 1995, this Court raised the following substantial quest ion of law: ."Is not the suit claim barred under Order II Rule 2 of C.P.C.?" 7. Learned counsel for the appellants contended that the Lower Appellate Court ought to have held that the present suit claim is barred under Order 2 Rule 2 C.P.C. and the view that the suit could be filed only after four years is a clear misconception of law. He also contended that the Lower Appellate Court erred in law in drawing adverse inference for not sending the documents for comparison of signature by the expert against the defendant, when it is for the plaintiff to prove that the sale agreement was executed by the defendant. He also contended that the Lower Appellate Court erred in law in drawing adverse inference for not sending the documents for comparison of signature by the expert against the defendant, when it is for the plaintiff to prove that the sale agreement was executed by the defendant. According to the learned counsel for the appellants, the Lower Appellate Court ought to have held that the suit claim is barred by Order 11 Rule 2 C.P.C, inasmuch as on the date of filing of the earlier suit, the cause of action to enforce the agreement was available. 8. In support of his contentions, learned counsel for the appellants has relied on the following decisions: (i) In the case of the State of Madhya Pradesh v. Mangilal Sharma, 1998 (1) CTC 271 the Supreme Court has held as follows: "5. Normally in a case like the present one the plaintiff when seeking relief of declaration that he continues to be in service would also seek consequential reliefs of reinstatement and arrears of salary. This the respondent as plaintiff did not do so as the Government not being a private employer would certainly respect a mere decree of declaration. This in fact the appellant did and the respondent has been reinstated. Moreover, once the Government servant is appointed to his post or office, he acquires a status and his rights and obligations are not longer determined by consent of both parties but by statute or Statutory Rules which may be framed by the Government. The legal position of a Government servant is more one of status than of contract. In Roshal Lal Tandon V. Union of India, AIR 1967 SC 1889 , this Court observed that the hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties and that the emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a Government servant throughout as if the order of termination of service never existed. It is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a Government servant throughout as if the order of termination of service never existed. It was not necessary for the respondent to seek relief of arrears of salary in a suit for declaration as he may be satisfied with a mere relief for declaration that he continues to be in service. Of course, if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order 11, Rule 2 oldie Code of Civil Procedure." (ii) In the case of Bondar Singh and Others v. Nihal Singh and Others, 2003 (2) CTC 635 : (2003) 2 MLJ 122 the Supreme Court has held as follows at p. 124 of MLJ: "4. Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It was contended that the question of possession is a question of fact and the High Court while exercising power under Section 100 of the Code of Civil Procedure, had no jurisdiction to upset the findings on this question recorded by the Lower Appellate Court. An appeal under Section 100, C.P.C. can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under Section 100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under Section 100, C.P.C. is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100, C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100, C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case, the findings of fact arrived at by the Lower Appellate Court were contrary to evidence on record and, therefore perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and the suit being decreed." (iii) The Supreme Court in the case of Krishi Utpadan Mandi Samiti Sahaswan, District Badaun v. Bipin Kumar and Another, AIR 2004 SC 2895 : (2004) 2 SCC 283 has held as follows: "7.... Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price of Rs. 15.40 per sq. yard the real market value was Rs. 120 per sq. yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their documents, for purpose of payment of stamp duty, cannot he allowed to then claim that their own documents do not reflect the correct market value. Therefore, as per sale instances of the comparable lands, the market value, on dates of sales, were in the region of Rs.15.37 to Rs.15.40 per sq. yard." (iv) In the case of C.T. Ponnappa v. State of Karnataka, (2004) 11 SCC 391 the Supreme Court has held as follows: "4. So far as the motive is concerned, in our view the prosecution has absolutely failed to prove the same. The prosecution case that there was a previous partition has been attempted to be proved by the document dated 4. 1996, Exhibit P-46, wherein there is a recital that partition had already been effected by deed dated 33. 1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. 1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. If it was unregistered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46 further shows that apart from the partition effected by deed dated 33. 1975, parties partitioned their properties at least by the deed dated 4. 1996, Exhibit P-46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. This document being not a registered one was in admissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers. As the prosecution failed to prove the case of previous partition, the motive that in the previous partition shares were not properly allocated resulting in commission of the present crime, has not been proved by the prosecution." 9. Learned counsel for the respondent/plaintiff submitted that the respondent/plaintiff is in possession and enjoyment of the suit schedule properties after the execution of the Sale Agreement. He contended that the Lower Appellate Court has rightly held in favour of the plaintiff after giving a careful comparison of the signatures of the defendant and prayed for the dismissal of the appeal. 10. In support of his contentions, learned counsel for the respondent/plaintiff has placed reliance on the following decisions: (i) In the case of Minnal Kodi v. Bharathi Mohan and Others, (2000) 1 MLJ 58 this Court has held as follows at p. 62 of MLJ: "21. The decision of Courts below are therefore, confirmed. As I said earlier, the question as to possession is a question of fact, from which no substantial question of law arises. Exhibit A-3 is a partition deed between members of the family of plaintiff and predecessors are in possession ever since the date of Exhibits A-1 and A-2 and have obtained absolute right. Question based on materials is not liable to be interfered under Section 100 of Code of Civil Procedure. There cannot be any question of adverse possession by appellant since her claim is based only on Exhibit B-1. Question based on materials is not liable to be interfered under Section 100 of Code of Civil Procedure. There cannot be any question of adverse possession by appellant since her claim is based only on Exhibit B-1. Even though she claimed possession anterior to Exhibit B-1 that is belied by the document itself. On question No. 5, the answer is already given in the earlier paragraphs of this judgment." .(ii) The Supreme Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Others 1999-2-L.W. 614 has held as follows: 5.... It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the Lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences arc possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of taw applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence." (iii) In the case of Arumugham (dead) by Lrs. and others v. Sundarambal and Another, 1999-2-L.W. 588 the Supreme Court has held as follows: "14. From the aforesaid judgment of the three Judges Bench in Ramachandra Ayyars case, it is clear that this Court held that Second Appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the Trial Court. From the aforesaid judgment of the three Judges Bench in Ramachandra Ayyars case, it is clear that this Court held that Second Appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the Trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on one side or rejecting the evidence on other side. It is not permissible for the Second Appellate Court to interfere with such findings of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the appellate trial Court.... 16....The appellate Court had considered the oral and documentary evidence adduced on both sides and preferred to accept the evidence adduced on the side of the plaintiff and it also rejected the evidence adduced on the side of the defendants. In fact, reading the judgment of the High Court. we are left with the impression that the High Court thought that it was dealing with the case as if it was a first appeal. Therefore, for the reasons given above, the judgment of the High Court cannot be sustained and the same is accordingly set aside. The judgment of the lower appellate Court is restored." (iv) In the case of Delta Ram and Another v. Ishwar Chand and Another, AIR 1996 SC 378 : (1995) 6 SCC 733 the Supreme Court has held as follows: "17. We have already noticed in the earlier part of the judgment that the previous suit was filed for recovery of a sum of Rs.6,300/-as sale price of the land in suit which was dismissed with the finding that the document on which the suit was filed was not a sale deed but was a mere agreement for sale and, therefore, the amount in question could not be recovered as sale-price. That document, thus, constituted the basis of the suit. 18. The subsequent suit was brought by the respondents for recovery of possession on the ground that they were owners of the land in suit and were consequently entitled to recover its possession. That document, thus, constituted the basis of the suit. 18. The subsequent suit was brought by the respondents for recovery of possession on the ground that they were owners of the land in suit and were consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale-price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants (appellants). The essential requirement for the applicability of Order 2 Rule 2, namely, the identity of cause of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil Procedure Code." (v) The Supreme Court in the case of Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and Another, AIR 1997 SC 1398 : (1997) 1 SCC 99 has held as follows: "6. ... Firstly, the Constitution Bench of this Court in Gurbux Singhs case AIR 1964 SC 1810 (supra) has clearly ruled that there cannot be any inference about the bar of Order 2 Rule 2, sub-rule (3), C.P.C., which may be culled out from plaint in the second case and secondly once the plea of bar of Order 2, Rule 2, sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the Trial Court they had missed the bus especially when even before the High Court no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application for additional evidence. Therefore, it is too late in the day for the defendants to contend that along with counter in the Special Leave Petition before us they, had produced the copy of the plaint in the earlier suit. Therefore, it is too late in the day for the defendants to contend that along with counter in the Special Leave Petition before us they, had produced the copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case of Gurbux Singh AIR 1964 SC 1810 (supra), it must be held that it was not open to the defendants to raise the contention of the bar of Order 2 Rule 2, sub-rule (3). C.P.C. in the present case and, therefore, the learned single Judge of the High Court was clearly in error in non-suiting the plaintiff on that ground. 8. As seen earlier, Order 2, R.2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2, R.2, sub-rule (3) will not get attracted. The illustration below the said Rule amply brings out this position. A mere look at the said illustration shows that if a landlord sues the tenant in 1908 for the rent due till year and omits to suit for rent for any of the previous years which had then accrued due he cannot subsequently sue the tenant for the previous rent due, claim for which was given up in the suit. It is obvious that a subsequent suit would not be barred in case of rent falling due after the first suit, say, for the year 1909 or 1910 etc. as that default would give him a fresh cause of action….” (vi) In the case of State of Maharashtra and Another v. National Construction Company, Bombay and Another, AIR 1996 SC 2367 : (1996) 1 SCC 735 the Supreme Court has held as follows: "14. The legal position, therefore, is that a hank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent, it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the hank guarantee. To that extent, it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the hank guarantee. We, therefore, refrain from making any observation regarding the true nature of the bank guarantee except pointing out that the two cause of action may not he identical. That would be a matter for the Trial Court to consider on a true analysis of the bank guarantee at the appropriate stage. 16. The relief sought in the Short Cause Suit was therefore based on a different cause of action from that upon which the primary relief in the Special Suit was founded. 17. In Sidramappa v. Rajashetty, AIR 1970 SC 1059 at pp 1060-61 : (1970) 1 SCC 186 at 189, this Court held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not barred by Order 2, Rule 2. Applying this ruling to the facts of the present case, it is clear that, in the first suit, the appellants could only claim reliefs in respect of Rs.14,12,836/- which was the maximum amount stipulated in the performance guarantee. They could not have claimed reliefs of Rs.1,13,27,298.16 which they did in the second suit on the basis of the contract relating to the work to be performed by the contractor. 18. It is therefore, clear that when the appellants, by way of Short Cause Suit No.491/72, sought to enforce the performance guarantee No.57/22, they were seeking reliefs on the basis of a cause of action which was distinct from the one upon which they subsequently based their claim in Spl. Civil Suit No.29/83." 11. Heard both sides and I have given careful consideration to the arguments of the learned counsel on either side and the citations relied on by them in support of their arguments. .12. Admittedly, the suit properties belong to the deceased defendant and he had mortgaged the 2nd item of the suit property, i.e. 20 cents of land to one Govindarajulu on 21. .12. Admittedly, the suit properties belong to the deceased defendant and he had mortgaged the 2nd item of the suit property, i.e. 20 cents of land to one Govindarajulu on 21. 1981 as per Exhibit A2, Registered Mortgage Deed for a sum of Rs.3,000/-. The said Govindarajulu was examined as P. W.2. As admitted by P.W.2, the mortgage deed was assigned in favour of the plaintiff on 24. 1984 and he had received the mortgage money of Rs.3,000/- from the plaintiff. The endorsement made by him was marked as Exhibit A-3 and the possession of the suit property in respect of Item No. 2 was surrendered to the plaintiff. 13. It is submitted that the deceased defendant had executed a Sale Agreement in favour of the plaintiff in respect of the suit properties on 212. 1984 as per Exhibit A-1-Sale Agreement, by agreeing to sell the same to the plaintiff for a sale consideration of Rs.14,250/-. Even prior to the agreement of sale, the defendant had received a sum of Rs.2,300/- and Rs.5,000/- from the plaintiff as advance. Further, a sum of Rs.3,000/-was adjusted towards the discharge of mortgage money by the plaintiff. The time stipulated for payment of the balance sale consideration of Rs.3,950/- is four years from the date of agreement. At the time of agreement. Item No.1 of the suit properties was delivered to the plaintiff and as such, the plaintiff is in possession and enjoyment of the suit properties by paying Land Revenue. One of such Land Revenue Receipts is marked as Exhibit A-4. 14. It is seen that Exhibit A-1-Sale Agreement was signed by the plaintiff and the defendant in the presence of P.W.2, Govindarajulu and P.W.3, Sadayan and the scribe P.W.4, Rengasamy. Exhibit A-1-Sale Agreement was proved by the plaintiff as required under law. In spite of the Sale Agreement being proved by the plaintiff, the Trial Court has dismissed the suit without assigning any valid reasons. But, the Lower Appellate Court upon comparison of the signature of the defendant with his signatures in other documents came to the confusion that the signature of the defendant in Exhibit A-1 is genuine, thereby reversed the judgment of the Trial Court. 15. It is an admitted case that a suit in O.S.No.379 of 1988 for permanent injunction has been dismissed for default, as seen from the Suit Register, Exhibit B-2. 15. It is an admitted case that a suit in O.S.No.379 of 1988 for permanent injunction has been dismissed for default, as seen from the Suit Register, Exhibit B-2. The question of law that now arises for consideration is whether the suit claim is barred tinder Order II Rule 2 of the Code of Civil Procedure. .16. The underlying principle under Order 2 Rule 2, Sub-rule 3 requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits, the bar of Order 2 Rule 2, Sub-rule 3 of C.P.C. will not get attracted. In the instant case, the pleading and the evidence adduced clearly prove that the Trial Court has dismissed the suit without assigning any valid reason as the present suit is filed for a specific performance after .four years and after the stipulated period of execution of the sale agreement and thus, it is clear that the suit claim is not hit by Order II Rule 2 of C.P.C. and the substantial question of law formulated in this appeal is answered accordingly. 17. The present suit is filed for specific performance and it has given rise to a new cause of action only after 212. 1988, i.e. after tour years oft he time stipulated from the date of execution of Exhibit A-1-Sale Agreement. In view of the specific provision of Order II Rule 2 sub-rule (3) of the Code of Civil Procedure that the cause of action in the earlier suit must he the same, on which the subsequent suit is based on and unless there is identity in the causes of action in both the suits, the claim barred under Order II Rule 2 of the Code of Civil Procedure will not get attracted, is the answer in the present appeal, as the cause of action in the present case is different. 18. Therefore, in my considered view, the conclusion arrived at by the Lower Appellate Court is perfectly in accordance with law and the same is confirmed. As such, the present appeal deserves no consideration and the same is dismissed. No costs. Second appeal dismissed.