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2017 DIGILAW 3462 (MAD)

Ramachandran v. Krishnamurthy

2017-10-27

V.M.VELUMANI

body2017
ORDER : 1. This Civil Revision Petition is filed against the fair and decreetal order dated 14.06.2011 in I.A. No. 153 of 2010 in O.S. No. 25 of 2008 on the file of the Subordinate Judge, Mannargudi. 2. The petitioner is the first defendant, first respondent is the plaintiff and the respondents nos. 3 to 5 are the legal heirs of deceased second respondent/second defendant. The first respondent filed suit in O.S. No. 25 of 2008 for specific performance of agreement of sale dated 10.02.1991 against the petitioner and deceased second respondent or in alternative direct the petitioner to refund the advance amount together with interest @ 6% per annum. The petitioner filed I.A. No. 153 of 2010 under Order II Rule 2, Order VII Rule 11 and Section 151 CPC for rejection of plaint. 3. According to the petitioner, the suit is barred by provisions of Order II Rule 2 CPC. The first respondent earlier filed O.S. No. 52 of 2005 for permanent injunction restraining the petitioner from selling the suit property in breach of sale agreement dated 10.02.1991 in favour of any third parties and restraining the petitioner and others from interfering with his peaceful possession. He also filed O.S. No. 55 of 2005 for injunction restraining the petitioner and second respondent from interfering with his peaceful possession and enjoyment of the suit property and injunction restraining the petitioner and second respondent from trespassing into the suit property or removing the trees planted for the purpose of fencing. 4. According to the petitioner, when the first respondent filed the above two suits, cause of action for the present suit in O.S. No. 25 of 2008 for specific performance and relief of specific performance were available to the first respondent. The first respondent ought to have claimed relief of specific performance in the first suit O.S. No. 52 of 2005 itself. The first respondent did not obtain any leave under Order II Rule 2 (iii) CPC to file a suit for specific performance subsequently. 5. The first respondent filed counter and denied all the averments made by the petitioner. The first respondent submitted that earlier two suits were filed for injunction as the petitioner was trying to alienate the properties, the petitioner and second respondent were trying to tress-pass into the suit property and restraining them from removing the tress planted for the purpose of fencing. The first respondent submitted that earlier two suits were filed for injunction as the petitioner was trying to alienate the properties, the petitioner and second respondent were trying to tress-pass into the suit property and restraining them from removing the tress planted for the purpose of fencing. The present suit is for specific performance of agreement of sale dated 10.02.1991. The cause of action and relief sought for in earlier two suits and present suit are different and not one and the same. The first respondent has withdrawn earlier two suits and filed present suit for specific performance and therefore the present suit is not hit by Order II Rule 2 CPC. The first respondent further submitted that the petitioner has not stated under which provision the present suit is barred by law. 6. The learned Judge, considering the averments in the plaint, affidavit and counter affidavit dismissed the application holding that the plaint can be rejected only on the grounds mentioned in Order VII Rule 11 CPC. The first respondent had time to file suit for specific performance when he filed earlier two suits and only after trial, final decision can be rendered. 7. Against the said order of dismissal dated 14.06.2011 made in I.A. No. 153 of 2008 in O.S. No. 25 of 2008, present Civil Revision Petition has been filed. 8. The learned Senior Counsel appearing for the revision petitioner contended that in the plaint filed in O.S. No. 52 of 2005, the first respondent has stated that the petitioner is trying to sell the suit property to third parties and informed him that first respondent is ready to get the sale deed executed in his favour. On 08.06.2005, the first respondent issued a notice to the petitioner. In the said notice, the first respondent called upon the petitioner to come to Sub Registrar Office on 16.06.2005 at 10.00 a.m. and execute the sale deed in his favour. He also mentioned in the notice that petitioner is trying to create bogus sale deeds. Without waiting till 16.06.2005, the first respondent has filed the suit for injunction on 08.06.2005. As far as the second suit in O.S. No. 55 of 2005 for injunction is concerned, the first respondent reiterated the fact that the petitioner is trying to execute the sale deed in the name of the second respondent who is the benami of the petitioner. As far as the second suit in O.S. No. 55 of 2005 for injunction is concerned, the first respondent reiterated the fact that the petitioner is trying to execute the sale deed in the name of the second respondent who is the benami of the petitioner. According to the first respondent, the petitioner, the second respondent and their men tried to encroach the suit property on 10.05.2005 and 17.05.2005 but he has filed the suit on 13.06.2005, after issuance of notice to the petitioner on 08.06.2005 and filed the earlier suit on 08.06.2005 itself. In view of the admission by the first respondent that the petitioner is trying to alienate the suit property to third parties and is trying to defraud the first respondent by not executing the sale deed as per the agreement of sale dated 10.02.1991, the cause of action for the suit for specific performance and relief of specific performance was available to the first respondent at the time of filing of the first suit, i.e. on 08.06.2005 itself. All the three suits are based on the same cause of action. The first respondent, by filing earlier two suits only for permanent injunction has relinquished his right for relief of specific performance. The first respondent has filed earlier two suits without obtaining leave of the court under Order II Rule 2 CPC to file present suit for specific performance on the same cause of action. 9. The learned Senior Counsel submitted that the learned Judge failed to properly appreciate the scope of Order II Rule 2 as well as Order VII Rule 11 (d) CPC. The learned Judge erred in dismissing the application on the ground that the first respondent had time to file suit for specific performance when he filed earlier suits. The learned Judge failed to consider scope of Order II Rule 2 CPC and subsequent suit is barred by law and is liable to be rejected under Order VII Rule 11 (d) CPC. The learned Senior Counsel relied on the judgment reported in Virgo Industries (Eng.) Pvt. Ltd. vs. Venturetech Solutions Pvt. Ltd. 2012 (5) CTC 359 in support of his contentions: "16. The learned Senior Counsel relied on the judgment reported in Virgo Industries (Eng.) Pvt. Ltd. vs. Venturetech Solutions Pvt. Ltd. 2012 (5) CTC 359 in support of his contentions: "16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R. Vimalchand and M. Ratanchand vs. Ramalingam, T. Srinivasalu and T. Venkatesaperumal (supra) holding that the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully sub-served by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti vs. Bhola Ram and by the Bombay High Court in Krishnaji vs. Raghunath." 10. Per contra, the learned counsel appearing for the first respondent submitted that Order II Rule 2 CPC is not applicable to the facts of the present case. Earlier two suits were filed for injunction and the cause of action and relief sought for in the earlier two suits are entirely different from the present suit. Per contra, the learned counsel appearing for the first respondent submitted that Order II Rule 2 CPC is not applicable to the facts of the present case. Earlier two suits were filed for injunction and the cause of action and relief sought for in the earlier two suits are entirely different from the present suit. The earlier two suits were filed to prevent the petitioner from alienating the property and interfering with the peaceful possession of the first respondent. The present suit is a comprehensive suit for the relief of specific performance. The earlier two suits were withdrawn as not pressed and therefore present suit is not hit by Order II Rule 2 CPC. 11. Heard the learned Senior Counsel for the petitioner as well as learned counsel appearing for the first respondent and perused the materials available on record. 12. The issue whether the present suit for specific performance of agreement of sale is hit by provisions of Order II Rule 2 CPC when the first respondent filed earlier suits for bare injunction has been considered by this Court as well as Hon'ble Apex Court. It has been held that the cause of action for the suit for injunction and for specific performance are different. The suit for injunction is filed to prevent immediate danger to the possession or right of the plaintiff. If cause of action for the suit for specific performance was already available to the plaintiff at the time of filing of the suit for injunction, then the plaintiff must file comprehensive suit seeking relief of specific performance as well as injunction. If the plaintiff fails to seek the relief of specific performance at that time when cause of action has arisen and has not obtained leave of the court under Order II Rule 2 (3) CPC to file subsequent suit at a later stage, then the subsequent suit for specific performance is hit by provisions of Order II Rule 2 CPC. The Court has to consider the plaint in the earlier suit to find out whether the earlier suit reveals cause of action for the subsequent suit filed seeking the relief of specific performance was available to the plaintiff at the time of filing of the suit for injunction. 13. The Court has to consider the plaint in the earlier suit to find out whether the earlier suit reveals cause of action for the subsequent suit filed seeking the relief of specific performance was available to the plaintiff at the time of filing of the suit for injunction. 13. I had an occasion to consider similar issue in CRP (PD) No. 118 of 2011 dated 11.10.2017 wherein I referred to the judgment of the Hon'ble Apex Court reported in Inbasegaran and Another vs. S. Natarajan (dead) through legal heirs, 2014 (6) CTC 445 and extracted paras 26 and 29A of the said judgment which read as follows:- "26. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical. ........... ........... 29A. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement." 14. In the present case, the first respondent has stated in the first suit that on 01.06.2005 itself that he expressed his willingness to get the sale deed executed in his favour. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement." 14. In the present case, the first respondent has stated in the first suit that on 01.06.2005 itself that he expressed his willingness to get the sale deed executed in his favour. In the notice issued through Advocate on 08.06.2005 to the petitioner, he has stated that the petitioner is trying to alienate the property to the second respondent and has fixed 16.06.2005 for execution of the sale deed in his favour by the petitioner. The relevant two paragraphs in the said notice dated 08.06.2005 are extracted for better appreciation. For some time part, there has been misunderstanding between my client and yourself. My client recently came to know that to spite my client, you are feverintly attempting to creating bogus show sale deed in favour of your amicable. My client feels that in the changed circumstances, it is n longer desirable to keep the transaction at the contract stage. My client hereby inform you that he has the entire cash ready for depositing the stamp duty at the office of Sub Registrar, since such facility is now legal instead of purchase of stamp papers. He fixed 16.06.2005 as the time when you should go over at 10 A.M. To the office of the Sub-Registrar at Thiruthuraipoondi, when my client will produce the sale deed for your signature and registration along with required form. As the time is made essence by this notice, no extension of time will be granted. 15. After stating so, the first respondent informed the petitioner that if he fails to execute the sale deed on 16.06.2005, he would take action in Court of law for specific performance of agreement. This allegation in the notice dated 08.06.2005 and averments in the plaint in O.S. No. 52 of 2005 clearly reveals that the first respondent was aware that the petitioner is not willing to execute the sale deed in his favour as per agreement of sale dated 10.02.1991. The relevant averment in the plaint is extracted herein for better appreciation. xxx xxx xxx xxx xxx 16. The relevant averment in the plaint is extracted herein for better appreciation. xxx xxx xxx xxx xxx 16. Applying the principles laid down by the Hon'ble Apex Court in the judgment referred supra, it is clear that cause of action for specific performance of agreement of sale was available to the first respondent at the time of filing of the first suit itself, as alleged in O.S. No. 52 of 2005 that the petitioner is giving evasive reply with regard to execution of sale deed and is trying to alienate the suit property to third parties. In the said circumstances, the first respondent ought to have filed comprehensive suit for specific performance of agreement of sale or atleast obtained leave of the court to file suit for specific performance at a later stage. The first respondent has omitted to sue for the relief of specific performance of agreement of sale which amounts to relinquishing the right to claim the said relief. The learned Judge has failed to consider the scope of Order II Rule 2 CPC and failed to hold that the plaint can be rejected under Order VII Rule 11 (d) CPC when the suit is barred under Order II Rule 2 CPC. The learned Judge failed to consider the contention of the petitioner that cause of action for all the three suits is one and the same and the present suit is barred as per Order II Rule 2 CPC as first respondent failed to sue for all the reliefs in the first suit O.S. No. 52 of 2005 itself and plaint in present suit is liable to be rejected as under Order VII Rule 11 (d) CPC. The reasoning of the learned Judge that the first respondent had time to file the suit for specific performance when he filed the suit for injunction is not valid reason on the facts of the present case. 17. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.