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2010 DIGILAW 155 (MAD)

Periyasamy & Others v. Lakshmi Nadesan

2010-01-19

M.JEYAPAUL

body2010
Judgment :- Defendants 23 to 27 in the suit filed a petition invoking provision under Order 2 Rule 2 of the Code of Civil Procedure praying to reject the plaint. The Trial Court chose to dismiss the said petition. Hence, the present civil revision petition before this court at the instance of defendants 23 to 27 as against the respondent/plaintiff. 2. The petitioners herein would contend that the very same respondent filed an earlier suit in O.S.No.284 of 1997 praying only for grant of permanent injunction without seeking any prayer for specific performance of the agreement of sale alleged to have been executed by some of the parties to the present suit. It has been contended that on the very same set of cause of action, the present suit in O.S.No.9 of 2009 has been filed. Therefore, invoking the provision under Order 2 Rule 2 of the Code of Civil Procedure, defendants 23 to 27 have sought for rejection of the plaint. 3. The plaintiff, who is the respondent herein, resisted the said petition on the ground that the cause of action for the present suit is totally different. The parties who face the earlier suit instituted by the plaintiff were also different. Further, there is virtually no similar averment in the present suit laid for specific performance of the agreement of sale, it is contended by the respondent/plaintiff. 4. The Trial Court, without actually adverting to the points that arise for determination under Order 2 Rule 2 of the Code of Civil Procedure, simply dismissed the petition observing therein that there was no bar to proceed with the trial of the case. It has also been observed therein that if the petition seeking for rejection of the plaint is allowed, much hardship would be caused to the plaintiff. 5. Learned counsel appearing for the revision petitioners/defendants 23 to 27 would submit that the present suit for specific performance of the agreement of sale has been filed with similar set of averments found in the earlier suit filed by the very same plaintiff. There is no much difference in the cause of action also pleaded by the plaintiff in the present suit. One of the vendors also was a party to the earlier suit. The legal heirs of the other vendors have also been arrayed in the suit filed simply for bare injunction. There is no much difference in the cause of action also pleaded by the plaintiff in the present suit. One of the vendors also was a party to the earlier suit. The legal heirs of the other vendors have also been arrayed in the suit filed simply for bare injunction. It is her submission that the plaintiff, who omitted to claim a prayer for specific performance of the agreement of sale in the earlier suit filed by him, is not entitled to institute the present suit seeking such a prayer. 6. Learned counsel appearing for the respondent/plaintiff would vehemently submit, taking the court through various averments made both in the earlier plaint and also in the present plaint filed by the plaintiff, that the averments as well as cause of action referred to in both the suits are totally different. It is his submission that on the basis of the threat of interference from one of the vendors and also the legal heirs of the other vendors, the suit was filed for bare injunction. It has nothing to do with the present suit filed by the plaintiff for specific performance of the agreement of sale based on the denial to perform the terms of the agreement by the vendors. It is his further submission that all the vendors were not parties to the earlier suit which was filed for bare injunction. Therefore, he would submit that though the Trial Court has not properly adverted to the rival contentions of the parties, the decision arrived at by the Trial Court is correct. 7. As per Order 2 Rule 2(2) of the Code of Civil Procedure, if there is any omission or intentional relinquishment on the part of the plaintiff any portion of the claim which was available when he instituted an earlier suit, he is debarred from bringing any fresh suit in respect of a portion which was so omitted or relinquished by the plaintiff while instituting the earlier suit. 8. Theearlier suit was filed by the very same plaintiff, of course, arraying one of the vendors viz., Pommi alongwith the legal heirs of the other vendors alleging that there was threat of interference to the possession of the plaintiff. 8. Theearlier suit was filed by the very same plaintiff, of course, arraying one of the vendors viz., Pommi alongwith the legal heirs of the other vendors alleging that there was threat of interference to the possession of the plaintiff. As rightly submitted by the learned counsel appearing for the respondent plaintiff, the material averments found in the earlier suit and the cause of action referred to in the plaint filed earlier by the plaintiff are found to be totally different. As there was a threat of interference, it appears that the plaintiff instituted the earlier suit as against all the parties who wielded threat of interference. 9. The cause of action for the suit for specific performance would arise only when there is a denial on the part of the vendors to abide by the terms of the agreement of sale entered into between the parties. Specifically adverting to the fact that there was a denial on the part of the vendors, who executed the agreement of sale, to adhere to the terms and conditions, the present suit has been filed for specific performance of agreement of sale. So long as there is no denial on the part of the vendors to perform their part of the contract, no cause of action for filing a suit for specific performance would arise. There was virtually no averment in the earlier suit that the vendors refused to go in for execution of the sale deed in terms of the agreement of sale, but, there is such a specific averment found in the present suit. Under such circumstances, I hold that the cause of action for claiming specific performance of agreement of sale was not at all available when the earlier suit was filed by the plaintiff as against one of the vendors as well as legal representatives of the other vendors. When no such cause of action had arisen earlier, the question of relinquishment of such a claim or omission to mention such a claim in the earlier suit would not arise. 10. When no such cause of action had arisen earlier, the question of relinquishment of such a claim or omission to mention such a claim in the earlier suit would not arise. 10. The Supreme Court in KUNJAN NAIR SIVARAMAN NAIR v. NARAYANAN NAIR AND OTHERS ( 2004 (3) SCC 277 ) has held in a similar situation which arose under Order 2 Rule 2 of the Code of Civil Procedure that the defendants must show before the court while invoking Order 2 Rule 2 of the Code of Civil Procedure that the second suit was based on identical cause of action. In other words, the court will have to see whether similar set of pleadings would maintain both the actions. 11. Applying the principles laid down in the aforesaid ratio, the court finds that the present suit was not filed based on identical cause of action which arose in the earlier suit filed by the plaintiff. The nature of evidence that should be recorded for a bare injunction suit is totally different from the nature of evidence that would be recorded in a suit laid as against all the vendors seeking specific performance of agreement of sale. 12. A similar view was taken by the Supreme Court in DALIP SINGH v. MEHAR SINGH RATHEE AND OTHERS ( 2004 (7) SCC 650 ).The Supreme Court has held therein that in the absence of proof of identity of cause of action as well as pleadings, the plea for rejection of the plaint invoking Order 2 Rule 2 of the Code of Civil Procedure cannot be permitted to be raised. 13. In view of the above, the court finds that there is no merit in the petition filed by defendants 23 to 27 seeking to reject the plaint invoking the provision under Order 2 Rule 2 of the Code of Civil Procedure. Though sufficient reason for dismissing the petition filed by defendants 23 to 27 was not given by the Trial Court, it is found that the Trial Court has rightly arrived at a conclusion in the petition filed by defendants 23 to 27. 14. In view of the above, the revision fails and it stands dismissed. There is no order as to costs. The connected miscellaneous petition also stands dismissed. 15. 14. In view of the above, the revision fails and it stands dismissed. There is no order as to costs. The connected miscellaneous petition also stands dismissed. 15. The opinion expressed by this court will not have any bearing on the applications that are pending disposal before the Trial Court.