Judgment COMMON JUDGMENT: A.S.No.2399 of 2001 is an appeal by the defendant against the judgment and decree in a suit O.S.No.379 of 1995 filed for specific performance on the file of the II Additional Senior Civil Judge, Visakhapatnam dated 07.03.2001. The said decree directed the appellant/defendant to execute and register a sale deed in favour of the plaintiff/respondent herein by receiving the balance sale consideration with interest at 18% from the date of suit. The respondent/plaintiff was also aggrieved by the said decree to the extent of directing payment of interest on the balance sale consideration and has filed a separate appeal being A.S.No.448 of 2002 on 23.07.2001 against the said decree. The defendant had also filed a counter claim in the suit O.S.No.379 of 1995 seeking eviction of the plaintiff and for damages and the same was dismissed by the trial Court while decreeing specific performance in favour of the plaintiff. The defendant, therefore, has filed Cross-Objections (SR).No.86461 of 2001 in A.S.No.448 of 2002 to the extent of rejection of counter claim. 2. Both the appeals and the cross-objections have been heard at length. The learned Advocate General appearing for the defendant/cross-objector had made detailed submissions in support of the cross-objections against the decree and has also made elaborate submissions against the decree for specific performance granted in the said suit O.S.No.379 of 1995. Mr. V.S.R. Anjaneyulu, learned counsel for the plaintiff has also equally and elaborately argued in support of sustaining the decree for specific performance and had also very seriously opposed the maintainability of the cross-objections as well as merits thereof. 3. The plaintiff in O.S.No.379 of 1995 - M/s. Jobing Syndicate –a registered partnership firm, is seeking to enforce an agreement of sale dated 01.08.1990. The defendant – M/s. Andhra Graphite (P) Limited, is a company, which was allotted suit plot by the Andhra Pradesh Industrial Infrastructure Corporation (APIIC) for the purpose of establishing its graphite manufacturing unit. M/s. Jobing Syndicate is hereinafter referred to as plaintiff and M/s. Andhra Graphite (P) Limited is hereinafter referred to as defendant for the sake of convenience and clarity. 4. (a) The defendant was allotted plot No.D-12 with shed and appurtenant area in the industrial estate Visakhapatnam on lease hold basis by APIIC under an agreement dated 03.06.1961. M/s. Jobing Syndicate is hereinafter referred to as plaintiff and M/s. Andhra Graphite (P) Limited is hereinafter referred to as defendant for the sake of convenience and clarity. 4. (a) The defendant was allotted plot No.D-12 with shed and appurtenant area in the industrial estate Visakhapatnam on lease hold basis by APIIC under an agreement dated 03.06.1961. The defendant unit, however, became sick around 1982-83 and started recurring losses and fell in arrears of hire charges to APIIC as well as liabilities towards Andhra Pradesh State Electricity Board (APSEB) etc. Later in the year 1984-86 the lease hold in favour of the defendant was converted into hire purchase but the industrial sickness of the defendant continued and around 1990, the defendant was not able to generate any income from the said unit and fell in substantial arrears to various financial institutions including APIIC resulting in APIIC threatening to cancel the allotment by taking over possession. ACKGROUND FACTS: (b) The defendant, therefore, gave an advertisement intending to give the unit on long lease basis to interested parties. The plaintiff, who was running a steel manufacturing unit in Alipuram area, which was residential area, was looking for an alternate location and after seeing the advertisement the plaintiff, being interested, inspected the unit and as per the advertisement, met P.W.2, who was the auditor of the defendant and who was looking after the proposed lease by the defendant. The plaintiff was informed that Rs.83,000/- was immediately payable to APIIC to avoid cancellation of allotment. The plaintiff being interested in taking the unit, after discussions with the defendant and his auditor, immediately advanced Rs.85,000/- by a cheque drawn in favour of the defendant on 15.06.1990 and it is alleged that the plaintiff and the defendant together encashed the cheque and later deposited Rs.83,000/- with APIIC to avoid seizure of plot and cancellation of allotment. It is alleged that the plaintiff and the defendant had agreed that a detailed lease deed will be subsequently executed to enable the plaintiff to use the said unit for manufacture of steel. PLAINT ALLEGATIONS: 5. The plaintiff alleged that around July 1990 the defendant conceded to sell the unit to the plaintiff on outright basis for which negotiations and discussions were held and it was agreed to sell the unit to the plaintiff for total consideration of Rs.9,00,000/-, which resulted in drawing of the suit agreement Ex.A13 dated 01.08.1990. PLAINT ALLEGATIONS: 5. The plaintiff alleged that around July 1990 the defendant conceded to sell the unit to the plaintiff on outright basis for which negotiations and discussions were held and it was agreed to sell the unit to the plaintiff for total consideration of Rs.9,00,000/-, which resulted in drawing of the suit agreement Ex.A13 dated 01.08.1990. Suffice it to notice that as per the plaint allegations the defendant was to obtain permission from APIIC to change the nature of business so as to enable the plaintiff to manufacture steel and the defendant was also to obtain necessary clearance from APIIC, SBI, APSEB and APGST by discharging the due amounts. The amount of Rs.9,00,000/-, which was fixed as consideration was payable as Rs.2,50,000/- on the date of agreement and out of the balance – Rs.50,000/- on or before 01.10.1990; Rs.3,00,000/- on or before 31.07.1991 and another amount of Rs.3,00,000/- on or before 31.07.1992. The plaintiff alleges that as he has already paid Rs.85,000/- under the cheque dated 15.06.1990 itself, he had paid Rs.1,65,000/- in cash and thereby the defendant acknowledged the receipt of Rs.2,50,000/- on the date of agreement, as the first installment. 6. It is further alleged that as the plaintiff was ready and willing to perform his part of the contract, he had paid further sum of Rs.50,000/- and demanded the defendant to clear the dues to various institutions but the defendant failed to clear the dues and obtain clearance from various institutions, but further demanded a sum of Rs.4,00,000/- and 10% of turnover of plaintiff’s steel manufacturing business, which was not part of the bargain agreed to under Ex.A13 and as such, on refusal of the plaintiff to comply with the said additional demand, the defendant threatened to dispossess the plaintiff. In order to ward off the said threat of dispossession, the plaintiff filed O.S.No.736 of 1993 before the Principal District Munsif, Visakhapatnam for permanent injunction against the defendant. The plaint and the written statement in the said suit are marked as Ex.B4 and Ex.B8, which will be referred to later. 7. The plaintiff, therefore, alleges that since he was always ready and willing, he gave a notice to the defendant dated 08.07.1995 – Ex.A9 calling upon the defendant to come with all the clearance certificates necessary for execution and registration of proper sale deed. 7. The plaintiff, therefore, alleges that since he was always ready and willing, he gave a notice to the defendant dated 08.07.1995 – Ex.A9 calling upon the defendant to come with all the clearance certificates necessary for execution and registration of proper sale deed. The said notice, however, was replied to by the defendant under his reply dated 18.07.1995 – Ex.A10 alleging that the plaintiff himself has repudiated the said agreement and has no right to seek specific performance. Ultimately, therefore, the plaintiff filed the present suit for specific performance on 28.07.1995. 8. The evidence laid by the plaintiff shows that in between the suit agreement Ex.A13 dated 01.08.1990 and the suit notice Ex.A9 dated 08.07.1995 followed by the plaint in the present suit dated 28.07.1995, there were certain payments and exchange of notices between the parties. Ex.A3 is the cash receipt dated 25.06.1990 showing that the defendant received Rs.19,500/- towards part payment of consideration. Similarly, under Ex.A4 dated 10.07.1991 the defendant received Rs.75,039.25 ps. towards part payment and under Ex.A5 dated 04.09.1991 the defendant received Rs.10,000/-towards part payment. The plaintiff has also filed and marked Ex.A11 dated 20.09.1991 showing that he has made a special term deposit for Rs.45,000/- with State Bank of India, Industrial Estate branch, Visakhapatnam towards token deposit for intended compromise for discharge of loan amount due to the bank from the defendant. Apart from the payments and deposit above, the plaintiff also had issued notice – Ex.A6 dated 09.07.1993 alleging that the plaintiff had totally paid Rs.3,55,039/- and had incurred expenditure of Rs.2,50,000/- towards compound wall and civil work carried out in the unit. It was also pointed out that the defendant is due huge amounts towards electricity charges, loan default to SBI to the tune of about Rs.6 lakhs and APGST dues of about Rs.24,000/-, which remained unpaid by the defendant. 9. The plaintiff also stated that while the defendant was allotted only 864 sq. yards, he was mislead into believing that the defendant had 1264 sq. yards allotted to it and thereby the plaintiff asserted that keeping in view the value of the property and the liabilities, he need not pay any amount and demanded the defendant to register the property forthwith in his favour. yards, he was mislead into believing that the defendant had 1264 sq. yards allotted to it and thereby the plaintiff asserted that keeping in view the value of the property and the liabilities, he need not pay any amount and demanded the defendant to register the property forthwith in his favour. The notice also stated that if the defendant thinks that the calculation and facts regarding the liabilities are not correct, he may treat the agreement as cancelled and refund all amounts to the plaintiff including Rs.2,50,000/-spent by the plaintiff towards repairs with interest at 18% per annum. The very same notice with very self-same contents was again issued by the plaintiff to the defendant on 03.09.1993 under Ex.B6. It is alleged that there is no reply by the defendant to this notice. It is thereafter that the plaintiff filed the injunction suit, referred to above and the evidence, further, shows that the defendant further issued Ex.A7 dated 11.09.1993 notice to the plaintiff demanding him to pay 10% of his profits as per the understanding and the same was replied to by the plaintiff’s reply notice dated 19.09.1993 denying any such obligation in terms of the suit agreement. Plaintiff’s injunction suit O.S.No.736 of 1993, is already referred to above. In the said suit, the defendant filed written statement on 07.12.1993 and also issued quit notice – Ex.A8 equivalent to Ex.B1 alleging that though possession was delivered to the plaintiff under suit agreement dated 01.08.1990 and though the plaintiff was earning substantial profits by manufacture of steel furniture at the unit, has failed to honour the commitment of payment of 10% of turnover to the defendant and on account of non-performance of the obligation by the plaintiff, the regular conveyance could not be made though the defendant was ready to perform his part of the contract. Also stated that the plaintiff having repudiated the contract, in the alternative suggested lease agreement, which was not acceptable to the defendant. The defendant, therefore, alleged that possession of the unit would generate rents of minimum of Rs.8,000/- per month and that the residual relationship only being that of landlord and tenant between the parties, the amount of Rs.3,50,000/- paid by the plaintiff on adjustment towards rent at Rs.8,000/- per month, balance amount of Rs.58,000/- towards arrears of rent till October 1994 was demanded and possession of the property was also demanded by 01.08.1995. The said notice was replied to by the plaintiff under Ex.B2 dated 09.12.1994 denying that there is any relationship of landlord and tenant and along with the said notice, copy of Ex.B6 notice was again sent requiring the defendant to comply with the same. GIST OF THE WRITTEN STATEMENT: 10. The defendant stated that the plaintiff approached P.W.2 – auditor in the last week of July 1990 offering to purchase the unit. The defendant, however, alleged that the said P.W.2 betrayed the confidence of the defendant and when the suit agreement was drafted with a clear understanding that regular reconveyance deed will be executed only after the defendant acquires title for the unit from APIIC, the defendant claims that there was also an understanding that after the defendant obtains permission from APIIC for change of business from graphite production to steel manufacture, the plaintiff would pay 10% of the total turnover and meanwhile, an agreement of sale with delivery of possession will be effected in favour of plaintiff. The defendant also alleged that he agreed for the proposal on condition that the plaintiff should clear away all the dues of the defendant, which were estimated at about Rs.4,00,000/-, which the plaintiff promised to clear. In addition to the above, sale consideration of the unit was fixed at Rs.9,00,000/-. The defendant, however, states that the plaintiff as well as P.W.2 convinced him that sale consideration of Rs.9,00,000/-only will be mentioned in the sale agreement and other stipulations would not be mentioned and believing them the defendant executed the said agreement. The defendant, however, alleged that even as per the terms of the suit agreement except payment of total amount of Rs.3,50,000/-, that too, in installments, the plaintiff failed to discharge his obligations even as per terms of the agreement, apart from defaults in complying with the understanding referred to above. It is, further, alleged that the plaintiff ultimately expressed his inability to perform the obligation under the suit agreement and demanded return of the advance amount of Rs.3,50,000/-. The plaintiff refused to pay the balance amount to the defendant and refused to vacate the premises until at once the amount, paid as advance, is returned to him. It is, further, alleged that the plaintiff ultimately expressed his inability to perform the obligation under the suit agreement and demanded return of the advance amount of Rs.3,50,000/-. The plaintiff refused to pay the balance amount to the defendant and refused to vacate the premises until at once the amount, paid as advance, is returned to him. At this stage, at the instance of P.W.2, a draft lease agreement for five years was proposed by the plaintiff but the same was not accepted by the defendant and consequently, the suit agreement was frustrated on account of non-performance by the plaintiff. 11. The defendant claims that on account of the defaults by the plaintiff, he was put to substantial loss in the form of mounting interest liability for which he claims damages of nominal amount of Rs.50,000/-. The defendant also alleged that the action on the part of the plaintiff in filing injunction suit and obtaining ad interim injunction against him also shows that he was not ready and willing and on the contrary, repudiated the suit agreement. The suit agreement also was challenged on the ground that it is insufficiently stamped and is not enforceable. The claim of the defendant, as landlord, was reiterated by the defendant and it was also claimed that the present suit is barred under Order II Rule 2 of the Code of Civil Procedure, 1908 and is also otherwise time barred, keeping in view the date of performance of the suit agreement and the date of the suit. The written statement, further, contains a specific paragraph that the plaintiff has not come to the Court with clean hands and is guilty of suppression of material facts. It was also alleged that the suit agreement is not seriously meant to be acted upon and in any case, it stood repudiated by the plaintiff as early as in August 1991. It is asserted that the plaintiff was never ready to perform his obligation and is not entitled for a decree of specific performance and not even entitled for refund. A counter claim was also made for eviction of the plaintiff, as he was in possession of the unit either as a lessee or a licensee in law and is also liable for arrears of rent and damages at Rs.8,000/- per month and for future rents. 12. A counter claim was also made for eviction of the plaintiff, as he was in possession of the unit either as a lessee or a licensee in law and is also liable for arrears of rent and damages at Rs.8,000/- per month and for future rents. 12. The plaintiff examined himself as P.W.1; the auditor of the defendant as P.W.2 and a practicing advocate was examined as P.W.3, who spoke about suit agreement Ex.A13 being typed and executed in his office. The Managing Director of the defendant is examined as D.W.1 while D.W.2 is examined to speak of discussions, which took place between the plaintiff and the defendant at the house of P.W.2 regarding the rents at Rs.8,000/- per month; D.W.3, the Assistant Executive Engineer, R & B Department, is examined for the purpose of stating the prevailing rents as per the official estimates of R & B Department. Most of the documents marked on behalf of either side are already referred in the paragraphs above. 13. On the basis of the above, the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for specific performance of agreement of sale dt. 1-8-1990 as prayed by it or whether the plaintiff is entitled for alternative relief of recovery of amount of Rs.3,55,000/- with interest at 24% p.a. and damages of Rs.5,45,000/-amounting to a total of Rs.9,00,000/-? 2. Whether the defendant is entitled for counter-claim of order of eviction of the plaintiff as a tenant from the plaint schedule property and to direct him to deliver the possession of the property to the defendant? 3. Whether the defendant is entitled for counter claim award of Rs.1,30,000/- as arrears of rent upto 31-7-1995 at the rate of Rs.8,000/- per month? 4. Whether the defendant is entitled for counter claim award of future rent or damages for use and occupation against the plaintiff from 1-8-1995 till the delivery of possession of the suit schedule property? 5. Whether the defendant is entitled for the counter claim of award of Rs.50,000/-as damages? 6. To what relief? ADDITIONAL ISSUES: 1. Whether the suit agreement dt. 1-8-1990 is invalid, unenforceable and cannot be given effect to? 2. Whether this suit is barred under law in terms of the provisions contained in Or. 2 Rule 2 of CPC? 3. 5. Whether the defendant is entitled for the counter claim of award of Rs.50,000/-as damages? 6. To what relief? ADDITIONAL ISSUES: 1. Whether the suit agreement dt. 1-8-1990 is invalid, unenforceable and cannot be given effect to? 2. Whether this suit is barred under law in terms of the provisions contained in Or. 2 Rule 2 of CPC? 3. Whether the suit agreement is not capable of specific performance in view of the provisions contained in Sec. 17 of Specific Relief Act, 1963? 14. The trial Court held that Order II Rule 2 CPC has no application, as the injunction suit and the specific performance suit are entirely different and evidence is also different. The trial Court also held that there is no relationship of landlord and tenant between the parties and the defendant cannot evict the plaintiff based on notice under Section 106 of the Transfer of Property Act. The counter claim of the defendant with regard to arrears of rent both past and future was also held against him consequently. The trial Court also held that since Ex.A13 relates to sale of immovable property, time is not the essence of the contract. The trial Court also held that since Ex.A13 agreement does not refer to the obligation of the plaintiff with regard to 10% commission over turnover, the defendant is not entitled for the same and so far as the area of plot is concerned, as per Ex.A13 the same being 1264 sq. yards, the plaintiff’s complaint of lesser area of 864 sq. yards cannot be accepted. The trial Court also held that the plaintiff is entitled to protect his possession under Section 53-A of the Transfer of Property Act and found that the plaintiff had established his readiness and willingness and it cannot be said that the contract is repudiated by the plaintiff and as such, the suit agreement is valid and enforceable and can be given effect to and consequently, decreed the suit for specific performance. 15. 15. Learned Advocate General appearing for the defendant has contended that the Court below committed serious error in overruling the defendant’s objection under Order II Rule 2 CPC inasmuch the plaintiff had clearly given up the relief of specific performance available to him on the date he filed the suit for permanent injunction simplicitor and as such, the subsequent suit for specific performance filed two years thereafter is clearly barred by the principles under Order II Rule 2 CPC. Even otherwise also, the present suit filed on 28.07.1995 is clearly barred by limitation under Article 54 of the Limitation Act, as the suit agreement was dated 01.08.1990 and the defaults committed by the plaintiff in paying the installments fixed under suit agreement Ex.A13 and the repudiation by the plaintiff himself under Exs.A6 and B6, does not save the suit from limitation. Learned Advocate General, therefore, states that this is a case where the plaintiff has abandoned the suit agreement and had, admittedly, failed to pay the installments and as against the consideration of Rs.9,00,000/-, he has paid only Rs.3,50,000/- and has taken the specific stand under Exs.A6 and B6 that he is not liable to pay any further amounts. Learned Advocate General, further, reiterated that this also shows non-fulfillment of Section 16(C) of the Specific Relief Act (for short ‘the Act’), as the readiness and willingness on the part of the plaintiff is on his own showing non-fulfilled. It is also pointed out that the plaint in the injunction suit marked as Ex.B4 clearly shows that the plaintiff is justifying Ex.A6 repudiation and points out that neither Ex.A6 nor Ex.B6 dated 09.07.1993 and 03.09.1993 respectively are referred to in the plaint. The plaintiff, therefore, is guilty of suppression of material facts. 16. Learned Advocate General states that the suit agreement Ex.A13 by the defendant was in the nature of distress sale by the vendor but the vendee failed to adhere to the payment schedule establishing that he is neither ready nor willing, as such, the present suit for specific performance is contrary to Exs.A6, B6 and B4 plaint in the injunction suit. It is also pointed out that the demand of the plaintiff under Exs.A6 and B6 that the defendant should not only refund the advance received but should also refund the amounts spent by the plaintiff towards civil work, is clearly not provided for under Ex.A13. It is also pointed out that the demand of the plaintiff under Exs.A6 and B6 that the defendant should not only refund the advance received but should also refund the amounts spent by the plaintiff towards civil work, is clearly not provided for under Ex.A13. It is also pointed out that even after the decree, the balance amount as required under the decree has not been deposited even as on the date of appeal and thereafter. The plaintiff’s conduct, therefore, was clearly against decreeing specific performance. 17. To the extent of rejection of counter claim, the learned Advocate General states that having repudiated the suit agreement; the plaintiff had no legal right to remain on the suit property and that too without payment of any amount towards use and occupation. The plaintiff, on the other hand, is not only churning out huge turnover by using the suit premises for manufacture of steel furniture but is also exploiting the defendant by neither paying the agreed sale consideration, even as per Ex.A13, nor paying the minimum rent towards use and occupation of the suit property by him all these years. Further, even if the relationship of landlord and tenant is not discernible from the suit agreement and correspondences, the plaintiff at least is in permissive possession under the suit agreement and, as such, in law at least answers the description of licensee and therefore, is liable to pay for the use and occupation of the premises. The quit notice – Ex.A8 being not declared as invalid, even otherwise, is in accordance with Section 106 of the Transfer of Property Act, there is no reason why the counter claim of the defendant cannot be decreed. A decision of this Court in G. ROSAIAH v. C. BALARAMI REDDY AIR 1989 AP 179 is relied upon for the purpose of showing the manner in which the discretion under Section 20 of the Act is required to be exercised. The following decisions are also referred to for the purpose of showing that the plaintiff is not ready and willing, as required to be established under Section 16 of the Act. P.G. SINHA (PANCHU GOPAL SINHA) v. COMMODORE K.C. CHATTERJEE AND OTHERS AIR 1991 CALCUTTA 327 ; RAM AWADH (DEAD) BY LRS. & ORS. The following decisions are also referred to for the purpose of showing that the plaintiff is not ready and willing, as required to be established under Section 16 of the Act. P.G. SINHA (PANCHU GOPAL SINHA) v. COMMODORE K.C. CHATTERJEE AND OTHERS AIR 1991 CALCUTTA 327 ; RAM AWADH (DEAD) BY LRS. & ORS. v. ACHHAIBAR DUBEY & ANR AIR 2000 SC 860 ; VOLETI RANGAIAH v. ADAPA SATYANARAYANA AND OTHERS AIR 2001 AP 251 ; SRI P. PURUSHOTHAM REDDY AND ANR. v. PRATAP STEELS LIMITED AIR 2003 AP 141 and POLEPALLE SUBRAMANYAM CHETTY v. GUNDAMREDDY PEDDAKKA AIR 2001 AP 204 . He, therefore, submits that there is no equity in favour of the plaintiff and on the contrary, he is liable for damages. 18. Mr. V.S.R. Anjaneyulu, learned counsel appearing for the plaintiff, on the other hand, submitted that Ex.A6 notice by the plaintiff cannot be treated as repudiation, as the said notice was conditional requiring the defendant to verify the accounts. He, further, submits that there was no reply to this notice by the defendant. Ex.B6 also is similar to Ex.A6 for which also there is no reply. Further, in the injunction suit filed on 14.07.1993 vide plaint – Ex.B4, the plaintiff asserted that he is the purchaser under the suit agreement and he sought relief only to protect him from being dispossessed except in accordance with law. He also points out that in Ex.A7 reply notice dated 11.09.1993, the defendant himself asserts that Ex.A13 agreement is invalid and unenforceable as he is not the owner but merely holds the suit property under a hire purchase agreement. The said contention of the defendant is reiterated in the written statement – Ex.B8 filed in the injunction suit. Learned counsel, therefore, submits that it is the defendant, who denied title to the suit property and claimed that the suit agreement is unenforceable. He, further, points out that while the suit agreement Ex.A13 is for 1264 sq. yards, the quit notice Ex.A8 is only for 1084.31 sq. yards. He, further, points out that even as per the defendant he had no title by 18.07.1995 – the date of Ex.A10 reply notice, as is specifically admitted therein. He, further, points out that while the suit agreement Ex.A13 is for 1264 sq. yards, the quit notice Ex.A8 is only for 1084.31 sq. yards. He, further, points out that even as per the defendant he had no title by 18.07.1995 – the date of Ex.A10 reply notice, as is specifically admitted therein. In view of the aforesaid stand of the defendant, learned counsel states that the defendant cannot complain of breach on the part of the plaintiff when defendant himself is asserting that he has no title under the suit agreement. 19. Learned counsel also relied upon the statement of D.W.1 that on 08.07.1995 the plaintiff mentioned that he is ready with cash and the documents, which show readiness of the plaintiff. According to the learned counsel, it is a clear admission on the part of the defendant that the plaintiff is ready and willing on the date of suit. Learned counsel, therefore, submits that while the Court below rightly decreed the specific performance, but it has committed serious error in awarding interest on balance sale consideration without the same being provided for in the suit agreement and without any pleadings or proof from the defendant. So far as deficit stamp duty under Ex.A13 is concerned, it is stated that the same is rectified by paying the requisite stamp duty and penalty. 20. Learned counsel has seriously attacked the maintainability of the cross-objections by contending that the original cross-objections are not before the Court and only the duplicate copy thereof is on record. He submits that when the plaintiff’s suit for specific performance was decreed, the defendant’s counter claim was simultaneously rejected. The defendant, however, filed an appeal A.S.No.2399 of 2001 only to the extent of decreeing specific performance and had not filed any appeal to the extent of rejection of counter claim. Further, when the plaintiff filed his appeal A.S.No.448 of 2002, the cross-objections came to be filed by the defendant in that appeal to the extent of rejection of counter claim. Learned counsel, therefore, submits that when a party filed a regular appeal against the decree, he cannot file a further cross-appeal also against the counter claim and has relied upon two decisions reported in MT. TEHL KUAR v. AMARNATH AIR 1925 LAHORE 2 and RAMJI DAS v. AJUDHIA PRASAD ILR (1903) 25 ALLAHABAD 628 21. Learned counsel, therefore, submits that when a party filed a regular appeal against the decree, he cannot file a further cross-appeal also against the counter claim and has relied upon two decisions reported in MT. TEHL KUAR v. AMARNATH AIR 1925 LAHORE 2 and RAMJI DAS v. AJUDHIA PRASAD ILR (1903) 25 ALLAHABAD 628 21. Learned counsel also replied to the objection of the learned Advocate General with respect to Order II Rule 2 CPC by contending that the same does not apply to the injunction suit, as cause of action in both the injunction suit and the specific performance suit is different. He also submits that when there is plurality of cause of action Order II Rule 2 CPC is not attracted and relies upon the following decisions in support of the said proposition. AZIZ FATIMA v. MUNSHI KHAN AIR 1980 ALLAHABAD 277 ; STATE BANK OF INDIA v. SANJEEV MALIK AIR 1996 DELHI 284 ; MOHD. JAHANGIR v. MALLIKHARJUNA CO-OP HOUSING SOCIETY LTD 1991 (1) ALT 575 and K. VENKATA RAO v. SUNKARA VENKATA RAO 1998 (6) ALT 40 . He further points out that even on the date of filing of the injunction suit i.e. 14.07.1993 there was no refusal to perform by the defendant and as such, the cause of action for specific performance suit did not arise. 22. To the extent of establishing readiness and willingness of the plaintiff the learned counsel relies upon paragraphs D and E of the plaint together with para 3 of the written statement and portions of statement of D.W.1 wherein various admissions made by the defendant are referred to, which are covered by Exs.A3 to A5, apart from the statement of D.W.1, referred to above. Learned counsel, further, points out that in Ex.A13 there is no default clause and the defendant accepted the payments under Exs.A3 to A5 without any protest and the fact that neither Ex.A6 nor Ex.B6 was replied to by the defendant shows that there was no refusal by the defendant even up to 09.07.1993. Learned counsel, therefore, contends that the conduct of the defendant shows that he has raised false plea that the plaintiff agreed to discharge all the liabilities and another false plea that the plaintiff agreed to pay 10% of the total turnover of his business to the defendant. Learned counsel, therefore, contends that the conduct of the defendant shows that he has raised false plea that the plaintiff agreed to discharge all the liabilities and another false plea that the plaintiff agreed to pay 10% of the total turnover of his business to the defendant. He submits that the trial Court already found that these terms were not part of Ex.A13 agreement and as such, the said pleas by the defendant were on the face of it false and such conduct is material for the purpose of exercising discretion in favour of the plaintiff. To the extent of counter claim the learned counsel says that the said claim is on the basis that the plaintiff is a lessee whereas on record no such lease can be inferred even on correspondence between the parties. The rejection of the counter claim by the trial Court is, therefore, justified and warrants no interference. 23. After extensively arguing the matter, Mr. V.S.R. Anjaneyulu submitted a book containing memorandum of synopsis running up to 81 pages containing the self-same contentions referred to above and the relevant extracts from the documents. Learned counsel also has filed a compilation of decisions in support of his legal contentions, which will be dealt with under the appropriate head. 24. On the basis of the above rival contentions, the following points arise for consideration in these appeals: 1. Whether the plaintiff has discharged his obligations under the suit agreement – Ex.A13? 2. Whether the plaintiff has established his readiness and willingness to perform his obligations and whether the plaintiff had abandoned and repudiated the suit agreement by issuing notice Ex.A6 dated 09.07.1993 and Ex.B6 notice dated 03.09.1993? 3. Whether there is any impediment for enforcing of the suit agreement under Section 17 of the Specific Relief Act? 4. Whether plaintiff’s claim for specific performance in the present suit O.S.No.379 of 1995 is barred under Order II Rule 2 of the Code of Civil Procedure, 1908, in view of O.S.No.736 of 1993 filed by the plaintiff for injunction on 14.07.1993? 5. Whether the present suit for specific performance is barred by time? 6. Whether the discretion exercised by the trial Court under Section 20 of the Specific Relief Act is liable to be interfered with? 7. Whether the cross-objections filed by the defendant are maintainable under Order 41 Rule 22 CPC? 8. 5. Whether the present suit for specific performance is barred by time? 6. Whether the discretion exercised by the trial Court under Section 20 of the Specific Relief Act is liable to be interfered with? 7. Whether the cross-objections filed by the defendant are maintainable under Order 41 Rule 22 CPC? 8. If so, whether the defendant is entitled to claim recovery of possession based upon the quit notice – Ex.A8 dated 28.10.1994? 9. Whether the defendant’s claim for rents, both past and future, is sustainable? If so, at what rate? 10. Whether the Court below has not committed error in decreeing the interest on the balance sale consideration amount in the absence of any stipulation in the suit agreement and the demand therefor by the defendant? 25. The terms of the suit agreement – Ex.A13 dated 01.08.1990 provided, inter alia, that the defendant is the purchaser of shed bearing No.D-12 as described in the schedule admeasuring about 1264 sq. yards and is entitled to sell, transfer and convey the same. It, further provides that the vendor has agreed to sell to the purchaser the schedule property for Rs.9,00,000/- free from all encumbrances subject to terms and conditions herein contained. Among the terms and conditions, the agreement records that the purchaser has paid Rs.2,50,000/- to the vendor, receipt whereof is acknowledged, and the purchaser has undertaken to pay total consideration less advance paid in four installments – first installment of Rs.50,000/- on or before 01.10.1990; second installment of Rs.3,00,000/- on or before 31.07.1991 and third installment of Rs.3,00,000/- on or before 31.07.1992 (though agreement refers to four installments, there are only three installments mentioned in the agreement). It also provides that after December 1990 but before 31.07.1991 out of the second installment, if the State Bank of India demands payment against compromise, the purchaser shall pay Rs.1,00,000/-within 30 days of notice of such compromise to the purchaser. The aforesaid contingency did not arise and as such, the installment, as per schedule was alone payable. The agreement, further, refers to other debts of the vendor apart from APIIC, but the amount is not quantified. It also provides that there are no other liabilities and that the vendor shall indemnify the purchaser against any loss by reason of defect in title of the vendor. The agreement, further, refers to other debts of the vendor apart from APIIC, but the amount is not quantified. It also provides that there are no other liabilities and that the vendor shall indemnify the purchaser against any loss by reason of defect in title of the vendor. The agreement provides that the purchaser can enjoy the possession without hindrance and all taxes up to the date of agreement shall be the responsibility of the vendor and that the purchaser shall bear the expenditure for sale and its registration. 26. A reading of the suit agreement does not show that the plaintiff agreed to bear the responsibility of clearing all the liabilities of the defendant nor does it show that the plaintiff agreed to pay 10% of the total turnover to the defendant, as alleged by the defendant in his written statement. The said two clauses being absent in the suit agreement the trial Court was right in rejecting the said claim of the defendant, as not covered by Ex.A13. Further, the said agreement records covenant by the defendant that he is holding the schedule property under the hire purchase agreement but he is entitled to sell, transfer or convey the same or otherwise is entitled to deal with the same. The agreement also contains an indemnity from the defendant that he shall indemnify the plaintiff for loss, if any, suffered by him on account of defect in title. The liabilities of the vendor are disclosed in the agreement but they are not quantified. The agreement also shows and mentions the payment schedule for balance sale consideration and admittedly, the plaintiff had paid about Rs.3,50,000/- only to the defendant. The plaintiff’s pleadings and evidence show that he had paid Rs.85,000/- on 16.06.1990 and another sum of Rs.1,65,000/- on 01.08.1990 i.e. date of Ex.A13 agreement. Out of the balance amount of Rs.6,50,000/-, however, the plaintiff has produced receipts – Ex.A3 dated 25.09.1990 for Rs.19,500/-; Ex.A4 dated 10.07.1990 for Rs.75,039.25 ps. and Ex.A5 dated 04.09.1991 for Rs.10,000/-. The plaintiff’s pleadings and evidence show that he had paid Rs.85,000/- on 16.06.1990 and another sum of Rs.1,65,000/- on 01.08.1990 i.e. date of Ex.A13 agreement. Out of the balance amount of Rs.6,50,000/-, however, the plaintiff has produced receipts – Ex.A3 dated 25.09.1990 for Rs.19,500/-; Ex.A4 dated 10.07.1990 for Rs.75,039.25 ps. and Ex.A5 dated 04.09.1991 for Rs.10,000/-. As per the agreement the plaintiff would have paid Rs.50,000/- by 01.10.1990, Rs.3,00,000/- by 31.07.1991 and another amount of Rs.3,00,000/- by 31.07.1992; thus, apart from Rs.2,50,000/- acknowledged by the defendant on the date of Ex.A13; the plaintiff had paid to the defendant only a sum of Rs.1,04,539/- by 04.09.1991 whereas as per the terms of the agreement the entire balance sale consideration of Rs.6,50,000/- ought to have been paid to the defendant by 31.07.1992. 27. On the face of it and as per the admitted case of the parties it is evident that the plaintiff has failed to pay the first, second and third installments fixed under the suit agreement – Ex.A13. In addition to the payment of Rs.1,04,539/- under Exs.A3 to A5, referred to above, the plaintiff claims that he had kept Rs.45,000/- in fixed deposit in SBI towards possible settlement of the claim of SBI against the defendant. However, that situation did not arise and the contingency provided for in the suit agreement requiring the plaintiff to pay Rs.1,00,000/- to satisfy the demand of SBI, out of the second installment, did not arise. A plain reading of the suit agreement coupled with the admitted case of the parties and evidence on record, therefore, leads to the only conclusion that the plaintiff failed to discharge his obligations with respect to payment of balance consideration in the installments as fixed in the agreement and as undertaken by him in the agreement. 28. Learned counsel for plaintiff has relied upon a decision of the Supreme Court in ROJASARA RAMJIBHAI DAHYABHAI v. JANI NAROTTAMDAS LALLUBHAI AIR 1986 SC 1912 for the proposition as to whether the suit agreement – Ex.A13 can be said to be a contingent agreement and whether it is enforceable. I am afraid, on facts, the said decision has no application, as it is nobody’s case that the agreement is enforceable POINT No.1: Whether the plaintiff has discharged his obligations under the suit agreement – Ex.A13? subject to permission by any authority. I am afraid, on facts, the said decision has no application, as it is nobody’s case that the agreement is enforceable POINT No.1: Whether the plaintiff has discharged his obligations under the suit agreement – Ex.A13? subject to permission by any authority. The agreement by itself does not provide for any such contingency nor it is based on any contingency, as was the case in the decision referred to above. Even otherwise, the necessity of obtaining permission of any authority does not make the contract contingent, as held by the Supreme Court and the contract is still enforceable and cannot be said to be a contingent contract. Point No.1, therefore, has to be answered against the plaintiff that he had failed to discharge the obligations under the suit agreement. POINT No.2: Whether the plaintiff has established his readiness and willingness to perform his obligations and whether the plaintiff had abandoned and repudiated the suit agreement by issuing notice Ex.A6 dated 09.07.1993 and Ex.B6 notice dated 03.09.1993? 29. This point has to be examined in the light of the submissions of the either party, referred to above and the chronology of events, already, referred to above. The conduct of the plaintiff after the suit agreement – Ex.A13 i.e. 01.08.1990 shows the payment by him under Exs.A3 to A5, aggregating to Rs.1,04,539/- and under Ex.A11 – the plaintiff had deposited Rs.45,000/- in SBI, Industrial Estate Branch, Visakhapatnam, as token deposit. Thereafter, there are no payments by the plaintiff to the defendant and the first act on behalf of the plaintiff is issuance of notice – Ex.A6 dated 09.07.1993. The aforesaid notice makes an interesting reading; hence, it is useful to refer to it at this stage. Even as per the averments in the said notice as on the date of said notice i.e. 09.07.1993 the plaintiff had paid Rs.3,54,039/-, which includes all payments. This notice itself records that as per the agreement the last payment of Rs.3,00,000/- was to be made by 31.07.1992. This notice, however, is issued on the alleged ground that the defendant has misrepresented the facts and there were arrears to APSEB, SBI, APGST, which are mentioned in the notice as Rs.80,000/-, Rs.6,00,000/- and Rs.23,375.52 ps. respectively. It is also mentioned that as per the records of the department, allotment to the defendant is only 864 sq. yards whereas the suit agreement is made for 1264 sq. respectively. It is also mentioned that as per the records of the department, allotment to the defendant is only 864 sq. yards whereas the suit agreement is made for 1264 sq. yards without any entitlement to the rest of the land. The plaintiff, therefore, states in the notice as under. “…it is highly doubtful as various assurance given by your MD and the property is nor worth of Rs.9,00,000/- and if due calculation is made regarding the amounts paid by my client and the value of the property less the liabilities it would be clear at (sic. that) my client need not pay any amount to your company and that the property should be registered forthwith in my clients fever (sic. favour) at his expenses after due accounting and if you for any reason think that calculations and the facts regarding the liabilities are not correct you may treat that the agreement is cancelled and refund all the amounts including Rs.2,50,000/- spent by my client for repairs of the building with interest at the rate of 18% per annum from the various dates when the investment were made our amounts were paid to you within a week from the date of register (?) this notice failing which my client has no option except to proceed to the court of law for necessary reliefs as provide under law and that you will be liable to pay all the costs of the litigation to my client.” Learned counsel for the plaintiff vehemently argued that this notice is a conditional notice and does not amount to repudiation. 30. Learned counsel relies upon the statement of P.W.1 with reference to this document wherein he states as under: “…I have not instructed my lawyer to cancel the suit agreement as mentioned in Ex.A6. After agreement I paid under Exs.A3 to A4. Under Ex.A3 I only paid Rs.19,500/- out of Rs.50,000/-. I did not pay the second installment before due date … I have not filed accounts, which I have spent Rs.2,00,000/- and odd. I did not inform the defendant about renovation. It is not true to suggest that I did not construct boundary wall.’ 31. The aforesaid notice – Ex.A6 is apparently issued by the plaintiff when, he, on his verification came to know the extent of liabilities of the defendant. I did not inform the defendant about renovation. It is not true to suggest that I did not construct boundary wall.’ 31. The aforesaid notice – Ex.A6 is apparently issued by the plaintiff when, he, on his verification came to know the extent of liabilities of the defendant. The terms of Ex.A13 itself shows that the liabilities due to the aforesaid financial institutions was known to the plaintiff. However, the quantum thereof was not mentioned in Ex.A13 but, in any case, the responsibility in that regard, in terms of the agreement, was not placed on the plaintiff. The plaintiff, therefore, knew that there are liabilities, which the defendant had to discharge towards SBI loan, APSEB arrears and sales tax dues and after knowing the same, the plaintiff had agreed and undertaken to pay the installments on the dates mentioned. Similarly, in an agreement relating to immovable property, though the defendant represented that he is absolute and exclusive owner and entitled to sell, transfer or convey the same, as a purchaser, it is for the plaintiff to verify the title and satisfy himself of the marketable title of the defendant. It is unbelievable and improbable that the plaintiff, as a seasoned businessman, has entered into a suit agreement on 01.08.1990, though originally only leasehold was proposed when the plaintiff paid Rs.85,000/- to defendant for payment offered to APIIC to save the suit plot from seizure and cancellation of allotment. The plaint allegations in this suit in para III (b) show that the plaintiff was put in possession on 15.06.1990 itself on the promise to write a detailed lease deed subsequently. The plaintiff also states that he started steel manufacturing unit on the same day. Thus, even according to the plaintiff he remained in possession from 15.06.1990 i.e. for about two months prior to the suit agreement; it is unbelievable that in these two months he did not make basic enquiries to verify the marketable title of the defendant, which includes the extent of the property saleable by the defendant as well as the liabilities of the defendant and its quantum. These basic verifications would be done by any prudent purchaser as per principles of ‘Buyer Beware’ and the plaintiff, who is a seasoned businessman, cannot be heard to say that he doubted the defendant’s marketable title and came to know of the extent of the liabilities three years after the suit agreement, when he issued Ex.A6 notice on 09.07.1993. 32. To my mind, therefore, the said notice is obviously an attempt on the part of the plaintiff to wriggle out of the default committed by him in paying installments on due date, as undertaken in the suit agreement. Though, as P.W.1, he states that he did not instruct his counsel to cancel the suit agreement but the said statement is belied by the fact that the plaintiff issued another identical notice – Ex.B6 dated 03.09.1993 through the same counsel, who issued Ex.A6. Similar demand of treating the agreement as cancelled was made in this notice as well. Not only the said two notices but the plaintiff also reiterated his stand in para III (c) of the plaint filed by him in O.S.No.736 of 1993 wherein a reference is made to Ex.A6 wherein the plaintiff sought for sale deed to be executed in his favour without any further payment. In other words, the plaintiff wanted sale deed to be executed in his favour on receipt of Rs.3,55,039/- only contrary to the suit agreement – Ex.A13 where plaintiff had agreed to pay total consideration of Rs.9,00,000/-. I am, therefore, unable to accept the contention of the learned counsel for the plaintiff that in spite of the categorical stand of the plaintiff, as above, it does not amount to repudiation of the suit agreement by him. It has, therefore, to be concluded that the plaintiff has not only committed defaults in discharge of his obligations to pay balance sale consideration on or before the dates stipulated in the suit agreement but has also repudiated the suit agreement expressly, as is evident from Exs.A6, B6 and B4 plaint in O.S.No.736 of 1993, all at the instance of the plaintiff himself. I am unable to appreciate the reasoning of the trial Court that the plaintiff has not committed any breach of terms of Ex.A13. I am unable to appreciate the reasoning of the trial Court that the plaintiff has not committed any breach of terms of Ex.A13. Just because Ex.A13 did not contain any default clause, the trial Court proceeds to think that time is not to be treated as essence of the contract and thereby notwithstanding the default of the plaintiff in paying the balance sale consideration, as undertaken, he was still held entitled to specific performance. The trial Court also accepts the admitted fact that apart from Rs.3,55,039/- no further amounts were paid by the plaintiff but surprisingly the trial Court still finds that the plaintiff did something in furtherance of the agreement and the facts and the circumstances of the case prove readiness and willingness of the plaintiff. The understanding of the trial Court is clearly opposed to the Constitution Bench judgment in SMT. CHAND RANI v. SMT. KAMAL RANI AIR 1993 SC 1742 case as well as the decisions of the Supreme Court in K.S. VIDYANADAM v. VAIRAVAN AIR 1997 SC 1751 . 33. Learned counsel for the plaintiff has cited a decision of the Supreme Court in PANCHANAN DHARA v. MONMATHA NATH MAITY (2006) 5 SCC 340 wherein he relied upon para 20, which is as under: “20. Contention of Mr. Mishra as regard the applicability of the first or the second part of Article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1964. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom.” 34. The legal principle in the aforesaid decision, with respect is not attracted in the present case, as this is not a case where fixed date of performance in the suit was postponed or extended by the parties, that is neither pleading nor the evidence of the plaintiff. The above decision relied upon is clearly not attracted to the facts and circumstances of the case. Point No.2 is, therefore, decided against the plaintiff. POINT No.3: Whether there is any impediment for enforcing of the suit agreement under Section 17 of the Specific Relief Act? 35. Section 17 of the Specific Relief Act provides as follows: 17. Contract to sell or let property by one who has no title, not specifically enforceable: - (1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor-- (a) who knowing himself not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. (2) The provisions of sub-section (1) shall also apply, as far as may be to contracts for the sale or hire of movable property. 36. The plaintiff’s case as seen even from the repudiation notice – Exs.A6, B6 and the plaint in the injunction suit O.S.No.736 of 1993 is not that the defendant has no title to sell the property. On the contrary, the plaintiff demanded the defendant to execute and register the sale deed without necessity of plaintiff to pay any further amounts than Rs.3,55,039/- paid by him as against Rs.9,00,000/- payable. On the contrary, the plaintiff demanded the defendant to execute and register the sale deed without necessity of plaintiff to pay any further amounts than Rs.3,55,039/- paid by him as against Rs.9,00,000/- payable. Further, Ex.A13 itself records that the defendant is holding the suit property under hire purchase from APIIC and the plaintiff has entered into the said agreement after enjoying possession for two months prior to suit agreement, as per his plaint and even in the present suit he seeks specific performance of the suit agreement to obtain registered sale deed in his name from the defendant. It is, on the contrary, that the defendant has been stating in the reply notice and the written statement in O.S.No.736 of 1993 that APIIC has not yet executed sale deed in his favour and being only a hire purchaser, he is not entitled to sell the unit. The said defence of the defendant is only one of the defences and as a defendant, he was entitled to take inconsistent pleas in the written statement and that by itself would not give rise to a situation to enable the plaintiff to overcome his defaults by claiming that the defendant has no title to the property. Section 17 of the Act, therefore, is not attracted in this case as the evidence on record discloses that and parties accept that APIIC has executed registered sale deed in favour of the plaintiff in 1995 itself for total consideration of Rs.1,27,620.18 ps. Section 17 of the Act, therefore, is not an impediment for enforcing of the suit agreement. POINT Nos.4 and 5: 4. Whether plaintiff’s claim for specific performance in the present suit O.S.No.379 of 1995 is barred under Order II Rule 2 of the Code of Civil Procedure, 1908, in view of O.S.No.736 of 1993 filed by the plaintiff for injunction on 14.07.1993? 5. Whether the present suit for specific performance is barred by time? 37. For appreciating the objection regarding Order II Rule 2 CPC,it would be appropriate to extract the said provision. ORDER II FRAME OF SUIT 1… 2. Suit to include the whole claim.- (1) 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. ORDER II FRAME OF SUIT 1… 2. Suit to include the whole claim.- (1) 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. (2) 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. (3) 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. 38. The principle behind the above provision, which is well settled, is that if the plaintiff is entitled to claim more than one relief based on the same cause of action, the plaintiff must seek all the reliefs unless he reserves his right to seek a particular relief by obtaining leave of the Court. On the date of filing of the suit for injunction by the plaintiff i.e. O.S.No.763 of 1993, the admitted situation was that the plaintiff had totally paid Rs.3,55,039/- and had issued notice Ex.A6 dated 09.07.1993, which is the act of the plaintiff two years after the suit agreement. The stand of the plaintiff was that he is entitled to execution and registration of sale deed without necessity of paying any further amounts, which is reiterated in the plaint in O.S.No.736 of 1993 dated 14.07.1993. The plaintiff, however, did not seek specific performance of the suit agreement on that claim but only sought permanent injunction for defending his possession. Even if the alleged cause of action dated 12.07.1993 where defendant tried to dispossess the plaintiff is believed to be true, the basic relief, which the plaintiff ought to have sought is that of specific performance on the basis of his claim under Ex.A6 notice that without payment of any further amounts, he is entitled to obtain the sale deed. Even if the alleged cause of action dated 12.07.1993 where defendant tried to dispossess the plaintiff is believed to be true, the basic relief, which the plaintiff ought to have sought is that of specific performance on the basis of his claim under Ex.A6 notice that without payment of any further amounts, he is entitled to obtain the sale deed. That relief, however, is not asked for; understandably as the plaintiff in the very same notice Ex.A6 demanded cancellation of the agreement and refund of all the amounts, if the defendant is not agreeable to execute the sale deed on the basis of receipt of a sum of Rs.3,55,039/- only. The plaintiff, therefore, knew very well that as against aggregate consideration of Rs.9,00,000/- defendant would never agree to execute sale deed on receiving Rs.3,55,039/- only. The plaintiff, apparently, was interested only in hanging on to the property, which he was enjoying from 15.06.1990, as claimed by him or in any case at least from the date of suit agreement i.e. 01.08.1990. He was already using the suit property for production of steel furniture and apparently, was making good money. He has, therefore, consciously taken the stand under Ex.A6 notice stating that it is not necessary for him to pay any further amounts but he should get the sale deed and in any case, his possession has to be protected by a decree of injunction. It is already found on point No.2 that the plaintiff had abandoned and repudiated the suit agreement and therefore, the omission to seek relief of specific performance and seeking relief only of permanent injunction while filing O.S.No.736 of 1993 clearly bars the present suit for specific performance filed on 28.07.1995 i.e. more than two years after the injunction suit. 39. Learned counsel for the plaintiff has very ingeniously tried to contend that the cause of action for both the suits are different and that there was no refusal by the defendant so far as specific performance relief is concerned. Learned counsel, therefore, tries to contend that the present suit for specific performance would fall under second part of Article 54 of the Limitation Act where the limitation would commence only on refusal by the defendant. The terms of suit agreement – Ex.A13, however, do not support such a contention inasmuch as payment of last installment of consideration was 31.07.1992. Learned counsel, therefore, tries to contend that the present suit for specific performance would fall under second part of Article 54 of the Limitation Act where the limitation would commence only on refusal by the defendant. The terms of suit agreement – Ex.A13, however, do not support such a contention inasmuch as payment of last installment of consideration was 31.07.1992. The last paragraph stipulates as follows: “The purchaser shall bear the expenses of sale. The purchaser shall pay to the vendor the expenses for purchase of stamps, one week before the expiry of the period fixed for this agreement for completion of the sale and the purchaser shall also at the same time deliver to the vendor a draft of the deed of sale, which the vendor shall if in proper form, execute in favour of the purchaser and present the same for registration on or before the date fixed for completion of the sale transaction.” 40. It was also argued by the learned counsel for the plaintiff that there is no date fixed in the agreement as to when the sale deed is to be registered. The said contention, however, overlooks that the last installment is payable on or before 31.07.1992 and it would be impossible to accept a situation that the purchaser would pay last installment but would not seek execution and registration of sale deed, which is referred to in the agreement as completion of the sale transaction, as on 31.07.1992. The intention of the parties as is evident from the last paragraph, extracted above, is clear that one week before the expiry of time fixed i.e. 31.07.1992 not only the stamp papers required are to be purchased but the draft sale deed also has to be approved and executed and to be presented for registration on or before the said date i.e. 31.07.1992. The time fixed for performance, therefore, being 31.07.1992 first part of Article 54 of the Limitation Act would apply and the refusal or otherwise of the defendant contemplated under second part of Article 54 of the Limitation Act is not attracted at all. The present suit for specific performance understandably is filed on 28.07.1995 just two days before the expiry of three years from 31.07.1992. 41. The present suit for specific performance understandably is filed on 28.07.1995 just two days before the expiry of three years from 31.07.1992. 41. Learned counsel for the respondent/plaintiff relies upon JAGAT SINGH v. SANGAT SINGH AIR 1940 PC 70 which again has no application on the facts of this case, as it is found that cause of action for both the suits was not one and the same. Another decision in AZIZ FATIMA’s case (9 supra) is also relied upon, which is clearly distinguishable, where earlier suit was filed before the Judge, Small Causes Court which had no jurisdiction to pass the decree for possession and on that ground the subsequent suit for possession before the competent Court was held as not barred under Order II Rule 2 CPC. Similarly, SANJEEV MALIK’s case (10 supra) relied upon also has no application as therein one suit was for enforcing personal remedy whereas the other suit was enforcing remedy against mortgaged properties were filed and it was held that the second suit to enforce the mortgage was not barred under Order II Rule 2 CPC on the ground that the first suit would be filed where the defendant resides and whereas the second suit would lay within the jurisdiction of the Court where the mortgaged property is situated. A decision of the Supreme Court in S. NAZEER AHMED v. STATE BANK OF MYSORE (2007) 11 SCC 75 relied upon is, however, clearly distinguishable on facts as the bank therein had filed a suit for recovery of money but when the plaintiff objected to the execution, being proceeded against the mortgaged property, for sale the bank later sued for enforcement of mortgage by deposit of title deeds. The Supreme Court, therefore, quoted Order 34 Rule 14 CPC which specifically provides that the creditor may institute a suit to bring the mortgaged property to sale notwithstanding anything contained in Order II Rule 2 CPC (emphasis supplied). In that view, the objection with regard to bar under Order II Rule 2 CPC raised by the defendant for the subsequent suit was negatived. A decision of Madras High Court in VIMALCHAND v. RAMALINGAM (2002) 3 MLJ 177 is relied upon, which according to the counsel is closer to the present case. In that view, the objection with regard to bar under Order II Rule 2 CPC raised by the defendant for the subsequent suit was negatived. A decision of Madras High Court in VIMALCHAND v. RAMALINGAM (2002) 3 MLJ 177 is relied upon, which according to the counsel is closer to the present case. The said decision is, however, distinguishable on facts at least for two reasons: (1) the facts of that case show that the specific relief was governed by second part of Article 54 of the Limitation Act where refusal by the defendant gave rise to cause of action and (2) the earlier suit for injunction was filed before the City Civil Court, Chennai whereas the second suit for specific performance was filed on the original side before the High Court and it was held in para 30 that the Court at Chennai was not competent to try the second suit and therefore, the provisions of Order II Rule 2 CPC did not apply. 42. The cardinal principles in applying the provisions of Order II Rule 2 CPC were settled by the Privy Council in PALANIAPPA CHETTIAR v. ALAGAN CHETTIAR AIR 1922 PC 228 wherein it was held that the plaintiff cannot be permitted to draw the defendant to Court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. The above principle was elaborated by the Supreme Court in GURBUX SINGH v. BHURA LAL AIR 1964 SC 1810 and in para 6 it was observed as follows: “In order that a plea of a bar under O.2 R.2, (3) Civil Procedure Code should succeed 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. 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.” The said legal position was noticed and reiterated by the Supreme Court in DEVA RAM v. ISHWAR CHAND AIR 1996 SC 378 . Applying the said test to the facts of the present case, it would be evident that when the plaintiff filed the first suit for injunction the plaint contained all the allegations relating to the suit agreement including legal notice – Ex.A6 and refers to the acts of the defendant in defiance of the agreement dated 01.08.1990 (Ex.A13 herein). It was, therefore, open for the plaintiff to have sued for specific performance of the said agreement at that stage itself, as the cause of action therefor had arisen at that stage itself, but he chose to sue the defendant, instead, only for an injunctive relief, omitting to sue for the specific relief, which is now sought for in the second suit. I am, therefore, unable to accept the contention of the plaintiff as well as the finding of the Court below that the cause of action in the first suit and the second suit are different and on that contrary, the rigor of Order II Rule 2 CPC is clearly attracted and the present suit is clearly barred. Point No.4, therefore, is answered against the plaintiff. 43. As already held under para 40 above, the plaintiff’s suit would be governed by part I of Article 54 of the Limitation Act. The present suit is filed just two days before the expiry of three years from the due date of 31.07.1992; hence the suit is not barred under the Limitation Act. Point No.5 is answered in favour of the plaintiff. POINT No.6: Whether the discretion exercised by the trial Court under Section 20 of the Specific Relief Act is liable to be interfered with? 44. It is already held under the points above that the plaintiff has failed to discharge his obligations under the suit agreement and in fact, he had abandoned and repudiated the suit agreement. POINT No.6: Whether the discretion exercised by the trial Court under Section 20 of the Specific Relief Act is liable to be interfered with? 44. It is already held under the points above that the plaintiff has failed to discharge his obligations under the suit agreement and in fact, he had abandoned and repudiated the suit agreement. In view of this finding, therefore, the question of exercise of discretion in his favour really does not arise for consideration. Since the finding of the trial Court on the said point is already reversed, as above, inasmuch as the exercise of discretion in favour of the plaintiff by the trial Court is, obviously, unsustainable and liable to be set aside. In that view of the matter the contention of the defendant with regard to Section 16 and Section 20 of the Act do not arise for consideration. POINT No.7: Whether the cross-objections filed by the defendant are maintainable under Order 41 Rule 22 CPC? 45. The contentions of the learned counsel for the respondent/plaintiff are already referred to above. He points out that the cross-objections are not maintainable when the defendant having filed appeal A.S.No.2399 of 2001 against specific performance decree granted by the trial Court, has chosen not to file any appeal against rejection of his counter claim. He pointed out that A.S.No.2399 of 2001 was filed by the defendant on 29.06.2001 wherein the rejection of counter claim was not covered at all. Later, the plaintiff filed an appeal A.S.No.448 of 2002 questioning that part of the decree of the trial Court wherein interest on balance consideration was granted. The aforesaid appeal was filed on 23.07.2001 but numbered later as A.S.No.448 of 2002. Learned counsel points out that cross-objections are filed by the defendant in this appeal in December 2001.The objection of the learned counsel is two fold: (1) whether the defendant/appellant, who has filed A.S.No.2399 of 2001 is entitled to file cross-objections also and (2) whether the cross-objections could have been filed in December 2001, even before the plaintiff’s appeal is numbered. 46. The original cross-objections are not on record. This Court had noticed the same when these matters were heard by another learned Judge and a direction was given on 15.06.2007 to list both the appeals along with the cross-objections. 46. The original cross-objections are not on record. This Court had noticed the same when these matters were heard by another learned Judge and a direction was given on 15.06.2007 to list both the appeals along with the cross-objections. By further proceedings dated 20.06.2007, as the connected appeal was placed before this Court and the cross-objections were not placed on record, the Registry was, therefore, directed to verify and make an endorsement. The matter once again was adjourned on 04.07.2007, as the Registry was not able to trace the cross-objections. By further order dated 11.07.2007 also the cross-objections (sr). No.86461 of 2001 was said to be not traced as yet. Learned counsel for the appellant, therefore, stated that he is filing authenticated copy of the cross-objections into the Registry for reference. The office was, therefore, directed to list the matters again on 18.07.2007. It is, thereafter, that the matters were heard for some time and later released from ‘part heard’ caption and then it came to be listed before me on 06.04.2010. 47. On 20.04.2010 while hearing the appeals, the aforesaid aspect relating to cross-objections was mentioned, when I had required the Registry to verify and put up a note as to whether the said cross-objections were filed and whether the Court fee as mentioned was paid therein. The Office has thereafter put up a note confirming as follows: “It is further submitted that on verification in the ledger maintained it is found that an amount of Rs.7,112/- was paid in A.S.No.448 of 2002 dated 07.12.2001.” The said Court fee as per the authenticated copy of the cross-objections is the Court fee payable on the value of the cross-objections and the authenticated copy mentions that the said duplicate cross-objections are filed as directed by the Court on 11.07.2007, which shows that the cross-objections filed in December 2001 with the Court fee of Rs.7,112/- was filed in A.S.No.448 of 2002. It also appears from the record that the said appeal A.S.No.448 of 2002 was not numbered as the said appeal was filed seven days after the expiry of limitation. Hence, the application CMP.No.16271 of 2001 was filed seeking condonation of delay. In response to the notice ordered on 04.09.2001 on the said application, it is found that appearance was entered by the defendant on 21.09.2001. Hence, the application CMP.No.16271 of 2001 was filed seeking condonation of delay. In response to the notice ordered on 04.09.2001 on the said application, it is found that appearance was entered by the defendant on 21.09.2001. The delay was ultimately condoned by order dated 15.10.2001 and thereafter, the office has raised objections with regard to the deposit of the Court fee and the plaintiff made good the said Court fee by filing application CMP.No.22171 of 2001 seeking condonation of delay in payment of depositing the Court fee. The said application was ordered by this Court on 25.02.2002 and thereafter, the appeal filed by the plaintiff has been numbered. Since the defendant was already appearing through his counsel as respondent in the said appeal, that explains the filing of the cross-objections in December 2001 and before the appeal was numbered as A.S.No.448 of 2002, the second objection of the learned counsel for the respondent/plaintiff is thus answered in favour of the cross-objector. 48. So far the first objection is concerned, the learned counsel relied upon MT. TEHL KUAR’s case (7 supra) for the proposition that law does not permit the respondent, who has preferred an appeal to file cross-objections. That was a case wherein the suit of reversioner was decreed, which gave rise to two appeals, one by the defendant – widow and other by the plaintiff. The plaintiff also preferred the cross-objections in the appeal by the defendant. The appeal by the defendant, however, abated and in that view of the matter, the plaintiff’s appeal was rejected. Based on the earlier decision of the Allahabad High Court in RAMJI DAS’s (8 supra) the cross-objections were held to be not maintainable. There is, however, no discussion in this decision. The earlier Allahabad High Court’s decision, which was relied upon by the Lahore High Court, arose on the following facts. The plaintiff had sued for compensation for damages and the suit was decreed in part. To the extent of the decree, the defendant had filed an appeal and to the extent of the disallowed part, the plaintiff had filed an appeal. The plaintiff’s appeal came for hearing first and was dismissed. Immediately, on dismissal of that appeal, the plaintiff filed cross-objections in the defendant’s appeal on the very same grounds, which he had urged in his independent appeal. The plaintiff’s appeal came for hearing first and was dismissed. Immediately, on dismissal of that appeal, the plaintiff filed cross-objections in the defendant’s appeal on the very same grounds, which he had urged in his independent appeal. In that context, it was held, while interpreting Section 561 CPC than existing, that only in those cases in which the party proposing to file an appeal might have appealed but upon reading of the Section 561 CPC it would not be open to the plaintiff to maintain cross-objections under the CPC and the decree of the appellate Court dismissing plaintiff’s appeal and upholding the decree of the Court of first instance precluded the plaintiff from agitating again the question, which is raised in the appeal, by these cross-objections. 49. The situation as existed in the said decision does not exist in the present case. The defendant’s appeal A.S.No.2399 of 2001 did not relate to counter claim and the said counter claim being treated as a suit for all purposes gave rise to right of the aggrieved party to file a separate appeal. The said right could have been exercised by the defendant either by filing one more appeal by paying the requisite Court fee or by way of cross-objections in the plaintiff’s appeal. The requisite Court fee, undoubtedly, has been paid and in terms of Order 41 Rule 22 CPC the defendant was well within his right to file the cross-appeal, though numbered as cross-objections, questioning the rejection of his counter claim. I am, therefore, unable to uphold the objections of the learned counsel for the respondent/plaintiff and the point is answered accordingly. POINT Nos.8 and 9: 8. If so, whether the defendant is entitled to claim recovery of possession based upon the quit notice – Ex.A8 dated 28.10.1994? 9. Whether the defendant’s claim for rents, both past and future, is sustainable? If so, at what rate? 50. The plaintiff even according to his plaint allegations in both the suits i.e. O.S.No.736 of 1993 for injunction as well as the present suit O.S.No.379 of 1995 for specific performance, claims to be in possession of the suit schedule property. In the present suit he claims that after payment of Rs.85,000/- on 15.06.1990 the defendant gave possession of the entire unit to him with a promise to write a detailed lease deed subsequently. In the present suit he claims that after payment of Rs.85,000/- on 15.06.1990 the defendant gave possession of the entire unit to him with a promise to write a detailed lease deed subsequently. The plaintiff also states that he started steel manufacturing unit from the same day. On the evidence, as discussed in the paragraphs above, in effect the plaintiff has paid Rs.3,55,039/- and has been exploiting the unit from 15.06.1990. Thus, in the last 20 years except payment of Rs.3,55,039/-, no amount is paid by the plaintiff for the use and occupation of the said suit schedule property and at the same time, he has been using it for his steel manufacturing unit right from 15.06.1990. The possession of the plaintiff even according to him is permissive through the defendant. 51. Learned counsel for the plaintiff is, however, right in submitting that there was never any lease deed between the parties and there is nothing to show the relationship of landlord and tenant, as claimed by the defendant. Learned counsel, further, submits that the quit notice – Ex.A8 and the demand for rent, both past and future, based upon the alleged relationship of landlord and tenant, is clearly not sustainable. 52. The facts and circumstances, however, disclose that the said permissive possession of the plaintiff was referred to in the suit agreement dated 01.08.1990, executed two months after the alleged delivery of possession. If we go by paragraph III (b) of the plaint allegations in the present suit O.S.No.379 of 1995, the suit agreement was entered into hoping to complete the sale transaction by 31.07.1992. However, as found under the points above, the plaintiff committed default and the plaintiff resorted to abandonment as well as repudiation of the suit agreement and sought assistance of the civil Court for protecting his possession by filing the suit for injunction O.S.No.736 of 1993. Irrespective of whether the relationship of landlord and tenant exists between the parties, the possession of the plaintiff is traceable to the permissive possession given to him by the defendant. It has, therefore, to be first found as to what is the legal status of the plaintiff under which he holds possession, as he himself asserts that there is no relationship of landlord and tenant between the parties. It is also accepted by both sides that the defendant permitted the plaintiff to remain in exclusive possession. It has, therefore, to be first found as to what is the legal status of the plaintiff under which he holds possession, as he himself asserts that there is no relationship of landlord and tenant between the parties. It is also accepted by both sides that the defendant permitted the plaintiff to remain in exclusive possession. Question also arises as to whether he can be said to be licensee in possession, as at the point of entry his possession was permissive and the said permission stood revoked when the defendant issued quit notice – Ex.A8. It has also to be considered as to whether the plaintiff’s possession can be said to be protected under Section 53-A of the Transfer of Property Act, as claimed by the learned counsel for the plaintiff in his written submissions. The said contention is, obviously, based upon the following clause in Ex.A13 agreement: “And the vendor does hereby covenant with the purchase the purchaser shall hence for peaceably and quietly entered into possession and enjoy the rents and profits thereof when any let, hindrance, interruption or disturbance by the vendor or their agents.” 53. Section 53-A of the Transfer Property Act would protect possession of an agreement holder, (a) if he is put in possession in part performance of the contract or (b) being already in possession, continues in possession in part performance of the contract. As per para III (b) of the plaint in O.S.No.379 of 1995 plaintiff claims that he was put in possession on 15.06.1990 i.e. two months prior to agreement – Ex.A13 and he claims to have started steel manufacturing unit from the same day. In order to satisfy Section 53-A of the Transfer of Property Act, it will have be to considered that plaintiff’s possession from 15.06.1990 continued as a possession under the suit agreement – Ex.A13 dated 01.08.1990. However, whether the plaintiff is entitled to protection under the said provision would also depend upon he satisfying that he has performed or is willing to perform his part of the contract. As already found on points 1 and 2 above, he has failed to discharge his obligations and failed to establish his readiness and willingness and consequently, cannot claim protection under Section 53-A of the Transfer of Property Act. 54. As already found on points 1 and 2 above, he has failed to discharge his obligations and failed to establish his readiness and willingness and consequently, cannot claim protection under Section 53-A of the Transfer of Property Act. 54. Question, therefore, still remains as to what is the legal status of the plaintiff vis-à-vis his possession of the land and unit in question, particularly, when he himself disowns any relationship as landlord and tenant between him and the defendant. The defendant claims as follows in the counter claim at para 21-A: “…The plaintiff never even tried to perform his part of the obligations under the suit agreement and simply squatting on the property and enjoying the benefits. The suit agreement stood automatically cancelled and repudiated. So the original possession of the suit schedule property by the plaintiff as alleged purchaser has been changed to either as a lessee or license by implication of law…” It has, therefore, to be seen as to whether the plaintiff can be said to be a licensee. It is well settled that a tenant or a lessee acquires an interest in specific immovable property, which is subject matter of the lease and under the said title as a lessee he enjoys exclusive possession of the specific immovable property. One of the tests distinguishing a lease and the license is the exclusive nature of possession enjoyed by a lessee as opposed to that of licensee. However, over the years, it has been settled that the said test itself is not decisive and the real test is the intention of the parties viz. whether the parties intended to create a lease or a license. Under Section 105 of the Transfer of Property Act the transaction of lease relating to specific immovable property can be said to have been established if transfer of right to enjoy the property for a certain time in consideration of price paid or promised periodically or unspecified occasions is established. Apart from the plaintiff denying any such relationship of landlord and tenant between the parties, admittedly, there is no evidence of any payment periodical or otherwise by the plaintiff to the defendant except about Rs.3,50,000/- paid by the plaintiff under Ex.A13 agreement of sale. 55. In SULTANA BEGUM v. PREM CHAND JAIN AIR 1997 SC 1006 the Supreme Court considered the above legal position, as extracted in the following paras “27. 55. In SULTANA BEGUM v. PREM CHAND JAIN AIR 1997 SC 1006 the Supreme Court considered the above legal position, as extracted in the following paras “27. Tenant or lessee of a premises is a person in whose favour an interest in the specific immovable property is transferred, who, therefore, comes to occupy the demised property exclusively in his own rights. The right to exclusive possession is the basic feature of the tenancy created by lease. Licencee's possession, on the contrary, is only permissive and he can be thrown out at any time. He does not also get the right to exclusive possession. Since the decree for eviction was passed against the respondent in his capacity as tenant of the premises in question, he could have, if at all, avoided that decree only by getting a fresh lease of that premises and not a licence which cannot have the effect of avoiding the decree or superseding or substituting the decree. The intention of the parties clearly was not to extinguish the decree for eviction but to create only a licence allowing the respondent to stay in the premises for a while. 28. In Konchada Ramamurty Subudhi v. Gopinath Naik: (1968) 2 SCR 559 : AIR 1968 SC 919 , this Court relied upon the theory of intention and held that the intention of the parties was the decisive test as to whether the rights under the decree were given up or not. In that case, the landlord had filed a suit for eviction of the tenant which was dismissed by the trial court, but was compromised at the appellate stage. The decree was passed in terms of the compromise which provided that the tenant could continue in possession for five years but if he did not pay rent for three consecutive months he would be evicted by executing the decree. When execution proceedings were initiated against the tenant, an objection was raised by him that the compromise decree created a fresh lease and, therefore, the decree was inexecutable. This plea was rejected and it was held that the intention of the parties, which was the decisive test, was not to enter into the relationship of landlord and tenant. When execution proceedings were initiated against the tenant, an objection was raised by him that the compromise decree created a fresh lease and, therefore, the decree was inexecutable. This plea was rejected and it was held that the intention of the parties, which was the decisive test, was not to enter into the relationship of landlord and tenant. Reliance in this case was placed on the decision of Subba Rao, J. (as he then was) in Associated Hotels of India Ltd. v. R.N. Kapur [1960] 1 SCR 368: AIR 1959 SC 1262 ,in which one of the propositions laid down was: “the real test is the intention of the parties; whether they intended to create a lease or a licence.” Reliance was also placed on the observations of Lord Greene. M.R. in Booker v. Palmer, (1942) 2 All ER 674, which is quoted below: “there is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind.” Ramamurty's case was followed by this Court in Smt. Kalloo and Ors. v. Dhakadevi [1982] 3 SCR 201: AIR 1982 SC 813 , in which again the intention of the parties was held to be the decisive test and it was laid down whether a fresh lease was intended to be created would depend upon the intention of the parties.” In an earlier decision in R.V. BHUPAL PRASAD v. STATE OF ANDHRA PRADESH ( AIR 1996 SC 140 ) the Supreme Court considered Sections 105, 106, 111 and 116 of the Transfer of Property Act and the following extract thereof would be useful for the present case.; paras 7, 8 and 9 and portions of paras 10, 11 and 13. 7. Section 105 of the Transfer of Property Act [for short, 'the TP Act'] defines "lease" of immovable property as "a transfer of a right to enjoy such property, made for a certain time, express of implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer by the transferee, who accepts the transfer on such terms". Therefore, the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money etc. and the lessee accepts the transfer on such terms, Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. Section 116 envisages the effect of holding over and provides that "if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106". Section 106 of the TP Act deals with duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or asserted to the appellant's continuance in possession, he cannot be treated under Section 116 to be a tenant holding over. 8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633 the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does riot create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical. 9. The question then is what is the meaning of the expression 'lawful possession'. This was considered by this Court in a leading decision on the right to grant licence under the Cinematographic Act and the Madras Cinemas Rules in M.C. Chockalingam and Ors. v. V. Manickavasagam: [1974] 2 SCR 143 . Rule 13 of the Madras Rules required the licensee in lawful possession, when he had applied for renewal after the expiry of the lease of the licensee. v. V. Manickavasagam: [1974] 2 SCR 143 . Rule 13 of the Madras Rules required the licensee in lawful possession, when he had applied for renewal after the expiry of the lease of the licensee. The Court observed thus: “Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession', although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified by 'lawful' in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh case ( AIR 1968 SC 620 ) (supra) had not to consider whether judicial possession in that case was also lawful possession. This Court in Lalu Yeshwant Singh case ( AIR 1968 SC 620 ) (supra) had not to consider whether judicial possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. This decision has been followed in many subsequent decisions of this Court. In Krishna Kishore Film's case ( AIR 1990 SC 2292 ) (supra), this Court has considered the controversy in a slightly different scenario. The facts therein were that the appellant-firm while running the Cinema Theatre on a licence granted pursuant to a lease by the landlords, one of the co-owners had agreed to sell his share of the property and another co-owner also entered separately into a lease. The question therein was whether the possession was lawful possession under the Rules. Giving various illustrations, this Court held that the lawful possession means legal possession which is also rightful or at least excusable. Thus that which is not stricto legalo may yet be lawful. It should not be forbidden by law. In fact "legal" is associated with provisions in the Act, rules etc. whereas "lawful" visualises all that is not illegal, against law or even permissible. "Lawful" is wider in connotation than "legal". Although provisions in Specific Relief Act empowering a person or tenant to recover possession if he has been evicted forcibly by the landlord, may be juridical and not lawful or a tenant holding over is not in lawful possession unless landlord agrees or acquiesces or impliedly but that does not alter the legal position about possession of a person not legal yet not without interest. In considering the Chockalingam's case (AIR 1974) SC 104), this Court made a distinction between nature of the possession of the lessee after the expiry of period of lease and the nature of the possession of the lessee acquiesced in by the landlord. In that context, it was pointed out that the lessee before expiry of period of lease acquired lessor's entire interest resulting in drowning or sinking of inferior right into superior right. That is a right, one of merger into another. It has been separately recognised by Section 111(d) of the TP Act. In that context, it was pointed out that the lessee before expiry of period of lease acquired lessor's entire interest resulting in drowning or sinking of inferior right into superior right. That is a right, one of merger into another. It has been separately recognised by Section 111(d) of the TP Act. Similarly, a tenant after expiry of period of lease may be holding over and the lessor may acquiesce in his continuance, expressly or impliedly. This is from conduct of lessor the tenant's possession may stand converted into lawful. The other may be where lessor may not agree to renew the lease nor he may acquiesce in this continuance. Such a lessee cannot claim any right or interest. His possession is neither legal nor lawful. Such was the ratio of Chockalingam's case. 10. …Although he may not have a legal right to continue in possession after the termination of the tenancy or after the expiry of the tenancy, his possession was at sufferance recognised to be juridical and that possession is protected by Common law. 11. …The licensee in possession for well over 15 years is in settled possession and is entitled to remain in possession and make use of the premises for the purpose for which it was demised until he is ejected in due course of law. The acquiescence of the landlord in this context would be to the initial unlawful entry into possession and continuation thereafter but not to the continuance in possession of the licensee after the expiry or termination of the licence… 12. … 13. In view of the settled position of law. the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry.” In PURAN SINGH SAHNI v. SUNDARI BHAGWANDAS KRIPALANI (1991) 2 SCC 180 the Supreme Court considered whether exclusive possession is the only test determinative of distinction between lease and license. The following extracts from the said decision are very relevant for consideration: 20. He is akin to a trespasser, though initially he had lawful entry.” In PURAN SINGH SAHNI v. SUNDARI BHAGWANDAS KRIPALANI (1991) 2 SCC 180 the Supreme Court considered whether exclusive possession is the only test determinative of distinction between lease and license. The following extracts from the said decision are very relevant for consideration: 20. It has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord. We do not agree with the submission in an unqualified form. There have been cases where exclusive possession has been given outside the Rent Act. In Isaac v. Hotel De Paris, Ltd. [1960] (1) All E.R. 348, the respondent company owning the hotel de Paris where the lessees of another building called the P. Hotel, it was held that the respondent company were entitled to an order for possession because the relationship between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P. Hotel with no interest in the land at all, and this privilege came to an end with the notice of May, 1956 and that after the notice the appellant remained in occupation at sufferance, and, in the circumstances, the acceptance of rent by the respondent company did not waive their right to immediate possession. It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy. It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy. Lord Denning quoted from Booker v. Palmer [1942] 2 All E.R. 674: “There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind.” The following passage was also cited with approval: (All ER P.352) “It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered.” 21. On the question of nature and effect of the grant of exclusive possession in paragraph 7 of Halsbury's Laws of England (4th edn., Vol. 27), we read: “7. The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance, although of lesser significance than the intention of the parties. In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance of the agreement. In order to give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. However, the grant of an exclusive right to a benefit can be inferred only from language which is clear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease.” 24. …A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass. …A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property…” A license, therefore, is held to be a privilege and not an interest in property. 56. In the light of the above legal position, therefore, the possession of the plaintiff though at the point of entry was permissive, the same is rendered akin to that of trespasser after revocation of permission under Ex.A8 quit notice and the defendant, therefore, was entitled to seek possession. The counter claim filed by the defendant, therefore, deserved to have been allowed but the Court below committed error in thinking that the defendant is not entitled to possession as no relationship of landlord and tenant was established. Apart from the relief of recovery of possession, the defendant would also be entitled to recovery of damages for use and occupation from the plaintiff instead of rents as described in the counter claim. 57. So far as rents/damages for use and occupation up to the date of filing of the counter claim is concerned, the defendant has claimed rent from 01.08.1990 till 31.07.1995 at Rs.8,000/-. The defendant cannot seek arrears of rent/damages of more than three years prior to his claim, as any arrears for more than three years, are barred by time. The said claim of the defendant, therefore, has to be restricted to three years prior to the date of counter claim i.e. 01.08.1992 onwards the defendant is entitled to arrears of damages up to the date of filing of counter claim i.e. 31.07.1995. The said issue is answered accordingly. 58. Further to the extent of quantum of rent, the evidence of D.W.2 is to the effect that the plaintiff agreed to pay Rs.8,000/- per month. Further, the said agreement is said to be by the brother of the plaintiff and not by the plaintiff. The evidence of D.W.3, who is Assistant Executive Engineer, is to the effect that the rental value of the plaint schedule property is Rs.3.50 per sq. feet and on that basis the rent is said to be Rs.8,000/-approximately. Further, the said agreement is said to be by the brother of the plaintiff and not by the plaintiff. The evidence of D.W.3, who is Assistant Executive Engineer, is to the effect that the rental value of the plaint schedule property is Rs.3.50 per sq. feet and on that basis the rent is said to be Rs.8,000/-approximately. He has filed Ex.X1, which is the assessment of rental value. In his cross-examination, he further states that the said rental fixed at Rs.3.50 per sq. feet is common for all categories i.e. commercial as well as residential. In my opinion,the counter claim of the defendant claiming arrears of damages at Rs.8,000/- per month is, therefore, justified. The counter claim of the defendant for damages, therefore, deserves to be decreed at Rs.8,000/- per month from 01.08.1992 to 31.07.1995. To the extent of future damages/mense profits, however, the evidence available on record is not satisfactory. The principles for ascertainment of mense profits have not been kept in mind by the parties and there is hardly any evidence to establish the quantum of profits for the period after institution of the counter claim. 59. I, therefore, deem it appropriate, just and equitable to direct that so far as relief for future mense profits/damages for use and occupation is concerned, for the period from 01.08.1995 the same shall be determined by the trial Court if the defendant makes an application under Order XX Rule 12 CPC. If such application is made, the trial Court shall afford opportunity to both sides to lead evidence and shall determine the future damages for use and occupation. 60. Further, the award of Rs.50,000/- sought for by the defendant towards damages is clearly not established. The trial Court also rejected the said claim and in the absence of any such damages pecuniary or otherwise established on evidence by the defendant, he is not entitled to any such claim for damages of Rs.50,000/- as made in the counter claim. POINT No.10: 61. This point also does not arise for consideration now in view of the answer to the points, referred to above, being held against the plaintiff. The contention of the learned counsel for the plaintiff that interest cannot be decreed on the balance sale consideration, however, appears sustainable inasmuch as no such provision is made in the suit agreement. This point also does not arise for consideration now in view of the answer to the points, referred to above, being held against the plaintiff. The contention of the learned counsel for the plaintiff that interest cannot be decreed on the balance sale consideration, however, appears sustainable inasmuch as no such provision is made in the suit agreement. However, in view of the plaintiff’s suit for specific performance being held liable to be dismissed, the said point framed is not necessary to be dealt with. 62. The plaintiff, who has to vacate the schedule premises, is granted time for vacation up to 31.03.2011 subject to filing an undertaking that he shall not alienate or induct third party in possession and shall be liable to pay mense profits till date of eviction of the premises. In the result, A.S.No.2399 of 2001 is allowed with costs and the Cross-objections (SR).No.86461 of 2001 in A.S.No.448 of 2002 are also allowed to the extent indicated above and A.S.No.448 of 2002 is dismissed with costs.