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2019 DIGILAW 1716 (MAD)

Pichai Iyer v. K. Subramanian

2019-06-20

SENTHILKUMAR RAMAMOORTHY

body2019
ORDER : 1. This Civil Revision Petition is filed against the order dated 09.10.2013 in I.A. No. 581 of 2011 in O.S. No. 167 of 2010 whereby the II Additional District and Sessions Judge, Thanjavur rejected the application filed by the revision petitioners to reject the plaint in O.S. No. 167 of 2010. 2. The case of the revision petitioners is that the respondent/plaintiff had earlier filed O.S. No. 72 of 2009 for a permanent injunction restraining the defendants/petitioners herein from alienating the suit schedule property and to direct the defendants to apply for approval from the Director of Town Planning. Subsequently, the said respondent/plaintiff filed O.S. No. 167 of 2010 for specific performance of the agreement of sale dated 11.04.2005. According to the revision petitioners, the cause of action for both the suits is identical and, therefore, the second suit is barred under Order II, Rule 2(3) of CPC because leave was not obtained by the respondent/plaintiff to reserve his right to sue for specific performance. 3. On the other hand, the case of the respondent herein is that the respondent/plaintiff was not in a position to sue for specific performance when O.S. No. 72 of 2009 was filed in view of the fact that D.T.P. approval was not obtained by the defendants. According to the respondent, a transfer petition was filed so as to hear both suits jointly and the revision petitioners did not object to the transfer on the ground that the second suit is barred by law. Therefore, the respondent states that the trial Court has correctly rejected the application to reject the plaint. 4. At the hearing; the learned counsel for the revision petitioner referred to the judgment of this Court in Sathiyamurthy vs. R. Payunambal and Another, (2012) 1 MLJ 789 wherein, at paragraph No. 7, it was held that the cause of action for both suits arose out of the agreement dated 20.08.2007 and therefore, leave ought to have been obtained under Order II Rule 2 CPC before filing the second suit. According to the learned counsel for the revision petitioners, the said decision is squarely applicable to the facts of this case in as much as the basis of both suits is the agreement of sale dated 11.04.2005 and that it is stated in the cause of action paragraph of the plaint in both suits that the revision petitioners/ defendants failed to execute the sale deeds as per the agreement of sale. 5. In response, the learned counsel for the respondent referred to paragraph No. 13 of the plaint in the first suit (O.S. No. 72 of 2009) wherein it is expressly stated that "the plaintiff cannot file the suit for specific performance now because his right to specific performance would arise only if the defendant gets D.T.P. approval for the suit property." In this regard, he further submitted that the revision petitioners/defendants had, admitted in the written statement in the first suit that D.T.P. approval had not been obtained for all the plots and had been obtained only in respect of 55 plots, which form the subject matter of the agreement of sale. 6. He further referred to paragraph No. 6 of the plaint in the second suit, viz. O.S. No. 167 of 2010, wherein it is stated that the defendants promised to execute the sale deed after the filing of the first suit, viz. O.S. No. 72 of 2009, and finally refused to do so only on 06.10.2009, which is after the filing of the first suit. Accordingly, he submitted that the cause of action for the two suits is not identical. In order to substantiate his submissions, the learned counsel for the respondent referred to the judgment of the Hon'ble Supreme Court in Rathnavathi and Another vs. Kavitha Ganashamdas, 2015 (1) LW 24 : (2015) 5 SCC 223 , which is a case relating to an agreement of sale. In specific, he referred to paragraph Nos. 22 and 29 of the said judgment, wherein it was held that it was not necessary to obtain leave from the Court in which the first suit was pending under Order II Rule 2 CPC before filing the second suit because the cause of action in the second suit was different. 7. In specific, he referred to paragraph Nos. 22 and 29 of the said judgment, wherein it was held that it was not necessary to obtain leave from the Court in which the first suit was pending under Order II Rule 2 CPC before filing the second suit because the cause of action in the second suit was different. 7. By way of rejoinder submissions, the learned counsel for the revision petitioners submitted that the judgment reported in (2015) 5 SCC 223 (cited supra) is distinguishable because in the facts of that case, the cause of action for filing the second suit for specific performance arose subsequently upon refusal to perform the obligations under the agreement of sale, in spite of receipt of the lawyer's notice dated 06.03.2000. 8. The pleadings, records and the oral submissions of both the parties were carefully considered. 9. The main issue that arises for consideration in this revision petition is whether the order rejecting I.A. No. 581 of 2011 in O.S. No. 167 of 2010 is liable to be interfered with by this Court. The said Interlocutory Application was filed under Order VII Rule 11(d) of CPC which reads as follows:- “The plaint shall be rejected in the following cases: (d) where the suit appears from the statement in the plaint to be barred by any law.” 10. On a plain reading of Order VII Rule 11(d) CPC, it is clear that the enquiry in an application under the said provision is confined to examining the statements made in the plaint. As a corollary, it is necessary to examine the plaint in O.S. No. 167 of 2010 to ascertain whether it can be concluded on reading the same that the plaint is liable to be rejected on account of being barred by law. Paragraph No. 6 of the plaint in O.S. No. 167 of 2010 refers to the earlier suit, viz. O.S. No. 72 of 2009, and explains the facts and circumstances relating to the filing of O.S. No. 167 of 2010. Similarly, the cause of action paragraph refers to a series of events commencing from the date of execution of the agreement of sale and culminating in the failed attempts at mediation on 14.08.2009 and 06.10.2009. Therefore, it is not possible to draw the inference that O.S. No. 167 of 2010 is barred under any law by examining the statements made in the plaint. Therefore, it is not possible to draw the inference that O.S. No. 167 of 2010 is barred under any law by examining the statements made in the plaint. 11. As already stated, the case of the revision petitioners is that the plaint in O.S. No. 167 of 2010 is liable to be rejected because the cause of action for O.S. No. 167 of 2010 is identical with that of O.S. No. 72 of 2009 and that the respondent/plaintiff failed to obtain leave to suit for specific performance subsequently. Consequently, according to the revision petitioner, the respondent/plaintiff has relinquished the right to sue for specific performance by way of a separate suit. The correctness or otherwise of this contention cannot be tested without examining the plaint and the oral and documentary evidence in O.S. No. 72 of 2009. In other words, the revision petitioners' contention that the cause of action in the two suits is identical and therefore, the second suit is barred under Order II Rule 2(3) of CPC cannot be determined in an application under Order VII Rule 11(d) of CPC. 12. In this connection, it is relevant to refer to a few judgments of the Hon'ble Supreme Court and the same are discussed briefly below: (i) In Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 , it was held that the application under Order VII Rule 11(d) of CPC should be decided entirely on the basis of averments in the plaint and not by reference to the written statement or any other documents. (ii) Similarly, in Vishnu Dutt Sharma vs. Daya Sapra, (2009) 13 SCC 729 , it was held that the embargo should be apparent from the averments in the plaint and strict construction should be applied before deciding whether the plaint is liable to be rejected. (iii) In Kamala and Others vs. K.T. Eshwara Sa and Others, (2008) 12 SCC 661 , it was held that evidence cannot be looked into for the purpose of deciding an application under Order VII Rule 11(d) of CPC. Consequently, it was held that mixed questions of fact and law, such as res-judicata, which require an examination of not only the plaint but other evidence and orders passed in earlier suits cannot be considered in such an application. 13. Consequently, it was held that mixed questions of fact and law, such as res-judicata, which require an examination of not only the plaint but other evidence and orders passed in earlier suits cannot be considered in such an application. 13. In view of the foregoing analysis and the principles laid down in the decisions of the Hon'ble Apex Court, it is clear that an application under Order VII Rule 11(d) CPC cannot be sustained on the basis that the cause of action in the suit is identical to that of the earlier suit because such a determination can only be made by examining the pleadings and evidence in the two suits. Consequently, the issue as to whether there is a bar under Order II Rule 2(3) of CPC can only be considered at the stage of final disposal after evidence is recorded. In this regard, the learned counsel for the respondent/plaintiff submits that the evidence of the plaintiff was completed and closed and that the respondent's evidence is being recorded at the moment. 14. In these facts and circumstances, the impugned order in I.A. No. 581 of 2011 under O.S. No. 167 of 2010 is not liable to be interfered with in the exercise of revisional jurisdiction. Accordingly, the Civil Revision Petition is disposed of without costs, with a direction to the Trial Court to consider and decide whether O.S. No. 167 of 2010 is barred under Order II Rule 2(3) CPC by framing an additional issue in this regard, if such issue is not currently framed.