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2022 DIGILAW 1894 (MAD)

T. v. Shathish VS G. R. Shekar

2022-07-05

R.N.MANJULA

body2022
JUDGMENT : (Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India, pleased to set aside the return order dated 24.02.2022 passed in unnumbered O.S.Sr.No.2291 of 2022 by the Hon’ble I Assistant Judge, City Civil Court at Chennai and direct the Registry/Court to number the said Original Suit by allowing this Civil Revision Petition.) This Civil Revision Petition has been preferred challenging the docket order of the learned I Assistant Judge, City Civil Court, Chennai dated 24.02.2022 made in O.S.Sr.No.2291 of 2022. 2. The revision petitioner is the plaintiff, who has presented the plaint for seeking the relief of Permanent Injunction restraining the defendants 1 and 2 from alienating and encumbering the suit property in favour of the third parties. The said plaint was rejected as not maintainable. Aggrieved over the said order, the plaintiff has filed this Civil Revision Petition. 3. Learned counsel for the revision petitioner submitted that the plaintiff and the defendants had entered into a Joint Venture agreement for developing and promoting the suit property by way of building residential apartments. During the course of executing the project, the defendants have attempted to approach some other builders, violating the terms of contract and also attempted to sell the property in favour of the third parties. Since, the plaintiff has cause of action against the defendants to restrain them from alienating the suit property, he has filed the suit for permanent injunction. 4. The learned trial Judge has observed that the plaintiff ought to have filed a suit for recovery of money for a sum of Rs.90,75,000/- (Rupees Ninety Lakhs Seventy Five Thousand only), on the basis of the alleged violations of the terms of the contract agreed between the parties through a Memorandum of Understanding and a revised letter dated 17.10.2019. It is further observed by the trial Court that the plaintiff has not sought for the relief of specific performance on the cause of action alleged by him and hence the suit is not maintainable. 5. The learned counsel for the petitioner submitted that since, the cause of action to claim the relief of permanent injunction is independent from that of the cause of action seeking the relief of specific performance, the plaint filed by the petitioner for seeking the relief of permanent injunction alone is maintainable. 5. The learned counsel for the petitioner submitted that since, the cause of action to claim the relief of permanent injunction is independent from that of the cause of action seeking the relief of specific performance, the plaint filed by the petitioner for seeking the relief of permanent injunction alone is maintainable. He attracted the attention of this Court to a decision of the Hon’ble Supreme Court held in the case of “Sucha Singh Sodhi (D) Thr. Lrs. Vs. Baldev Raj Walia & Another in support of his above contention. In the said Judgment, it is held as under:- 31) First, the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa. 32) In other words, a plaintiff cannot claim a relief of specific performance of agreement against the defendant on a cause of action on which he has claimed a relief of permanent injunction. 33) Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff-s possession over the suit premises accrues when defendant No.1 threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1(c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (See - Part VII Articles 85, 86 and 87 of the Limitation Act). 34) On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date (See – Part II Article 54 of the Limitation Act). The limitation to file such suit is three years from such date (See – Part II Article 54 of the Limitation Act). 35) Third, when both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of action. 36) This Court in Rathnavathi & Another vs. Kavita Ganashamdas ( 2015 (5) SCC 223 ) had the occasion to examine this very question on somewhat similar facts in detail. This Court after taking into account the earlier decisions of this Court which dealt with this question held in Paras 22 to 31 that bar contained in Order 2 Rule 2 of the Code on such facts is not attracted against the plaintiff so as to disentitle him from filing the subsequent suit to claim specific performance of agreement against the defendants in relation to the suit property. 37) We apply the law laid down in the case of Rathnavathi (supra) and hold that the suit filed by the original plaintiff for specific performance of agreement against the respondents (Defendants) is not barred by Order 2 Rule 2 of the Code and is held maintainable for being tried on merits....” 6. As per the Order 2 Rule 2 of C.P.C., the suit shall include the whole claim, which the plaintiff is entitled to seek in respect of the cause of action. However, it is open to the plaintiff to relinguish a part of the relief, in order to bring the suit within the jurisdiction of any Court. In the case in hand, the plaintiff has not relinguished his right to claim the reliefs of the specific performance or recovery of money against the defendants. 7. However, it is open to the plaintiff to relinguish a part of the relief, in order to bring the suit within the jurisdiction of any Court. In the case in hand, the plaintiff has not relinguished his right to claim the reliefs of the specific performance or recovery of money against the defendants. 7. When the matter was taken up today, during the course of arguments, learned counsel for the petitioner submitted that he may be permitted to file a petition to seek leave of the Court to reserve his right to seek the other reliefs like specific performance and recovery of money within a period of limitation by way of filing a petition under Order 2 Rule 3 of C.P.C. 8. However, the relief claimed as such is only permanent injunction restraining the defendants from alienating the suit property. Such kind of permanent relief cannot be sought for any indefinite period against the persons, who have interest in the property. The plaintiff-s right to seek such a prayer would be limited to a time till the alleged Joint Venture agreement agreed between the parties is completed. 9. At this juncture, Learned counsel for the petitioner has undertaken to do the suitable amendment that has to be made to the plaint, in case the plaint is returned. Under such circumstances, it is appropriate for the learned trial Judge to return the plaint for maintainability, in view of the blanket prayer with regard to the relief of permanent injunction and also for want of any petition to seek leave under Order 2 Rule 3. 10. With theses observations, this Civil Revision Petition is allowed and the order of the learned I Assistant Judge, City Civil Court, Chennai dated 24.02.2022 made in O.S.Sr.No.2291 of 2022 is hereby set aside. No costs.