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Uttarakhand High Court · body

2022 DIGILAW 208 (UTT)

Narendra Kumar Aggarwal v. Devki Nandan Sarraff

2022-07-14

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. It is defendants revision preferred under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.) where the defendant has put a challenge to the impugned order of 22.05.2017, as it has been passed by the court of learned Civil Judge (Senior Division) Kashipur, District Udham Singh Nagar in Suit No. 17 of 2014 Devki Nandan Sarraff vs. Narendra Kumar Aggarwal and Others, whereby the learned trial court, had decided the issue no. 7, relating to the implications of Order 2 Rule 2 of C.P.C. against the defendant. 2. Brief facts of the case are that the plaintiff/respondent herein on 21.01.2014, had instituted a suit in relation to the disputed property which was more appropriately described at the foot of the plaint constituting, to be a property in the shape of an angan, staircase and a chabutra, as depicted by the plaint map by figure EFGHIJ. The nature of degree, which was sought therein by the plaintiffs as modulated was a simiplicitor suit for grant of decree of permanent injunction, as against the defendant therein, but what would be of more concern for this Court, for the purposes of the present revision is, that if the pleadings raised in the plaint, which was instituted on 21.01.2014 is taken into consideration in its totality particularly the pleadings, which were raised in Para 8 and Para 10 of Suit No. 20 of 2014, the plaintiff therein has consciously made an observation and a pleading to the effect, “that the sale deed of 04.12.2013, which was executed in favour of defendant no. 5, was to be a deed of conveyance, which was bad in the eyes of law and was an ineffective document”, based on which it was conducted by the plaintiff that the defendant could not have claimed any right in relation to the property in question. 3. The nature of pleading, which was modulated in Para 10 of the suit itself, where the plaintiff was conscious about the legal impact of sale deed dated 04.12.2013, where the averment has been made “for the sale deed conferring the right on defendant no. 3. The nature of pleading, which was modulated in Para 10 of the suit itself, where the plaintiff was conscious about the legal impact of sale deed dated 04.12.2013, where the averment has been made “for the sale deed conferring the right on defendant no. 5 was a fraudulent document or was a nonest document.” Meaning thereby the plaintiff therein, when he had instituted the suit on 21.01.2014 had foundationed his relief for the grant of decree of permanent injunction only, on the basis of the sale deed which was then only was pleaded to be void. In that eventuality the voidablity of a document creating a right in favour of the defendant, was a conscious pleading which had been raised by the plaintiff in Suit No. 20 of 2014, it ought to have at that time itself should have contained a relief for giving a challenge to the sale deed of 04.12.2013 itself but for the reasons best known to the plaintiff, the relief was modulated and limited only for the grant of decree of permanent injunction. 4. During the intervening period of pendency of earlier suit, the plaintiff/respondent herein instituted yet another suit in March 2014, wherein he has prayed for a degree for cancellation of sale deed dated 04.12.2013 as void in the eyes of law, which is said to have been registered before the Sub Registrar. In the suit which was thus instituted for cancellation of the sale deed, being numbered as Suit No. 17 of 2014, the learned trial court has framed the issues and one of the prime issue, which was the subject matter of consideration and which was pressed by the revisionist by way of preliminary was Issue No. 7, to the effect, that “whether the subsequent suit was barred by the provisions contained under Order 2 Rule 2 of the C.P.C. or not?” 5. The learned trial court had decided that said issue as against the defendants/revisionists, by the impugned judgment, which is under challenge. The learned trial court had decided that said issue as against the defendants/revisionists, by the impugned judgment, which is under challenge. It has been argued by the learned counsel for the revisionist, that the observations which had been made and the logic, which has been assigned by the learned trial court by not attracting the provisions contained under Order 2 Rule 2 (3) of C.P.C. would be bad in the eyes of law because the earlier suit instituted, that is Suit No. 20 of 2014, was foundationed on the sale deed of 04.12.2013. In that eventuality, when the knowledge of the propriety of the sale deed and its effect of defective execution was attributed to the plaintiff, itself when the first suit was instituted by him and particularly when the pleading itself was raised in the plaint in the above referred paragraphs pertaining to propriety of its execution, it was in that eventuality, itself at that stage, when the first suit was instituted, the plaintiff, should have prayed for cancellation of sale deed, which was admittedly pleaded to be void. This was not done. Hence, the issue which has been decided by the learned trial court, by the impugned order deciding Issue No. 7 against the defendant/revisionist, this Court is not in agreement with the reasoning which had been given by the said court, for the reason being that the reference, which has been made to the judgment in relation to the ratio propounded by the judgment of Alka Gupta vs. Narendra Kumar Gupta (2010) 10 SCC 141 , the exception which has been carved out and referred to in the impugned order is, that in relation to a different and a distinct cause of action will not bar a suit under Order 2 Rule 2 of C.P.C. there cannot be any doubt on this basic principle, regards different cause of action. But this situation may not be a subject matter which would be engaging consideration in the present circumstances of the case, because the cause of action herein for the plaintiff/ respondent, would have been, when the earlier suit itself was instituted by him on 21.01.2014, when there was a conscious pleading raised pertaining to the propriety of sale deed of 04.12.2013 and its voidability. Having not done so the principles contained under Order 2 Rule 2(3) of C.P.C. will obviously come into play. Having not done so the principles contained under Order 2 Rule 2(3) of C.P.C. will obviously come into play. For the purposes of gravity, the provisions contained under Order 2 Rule 2 Sub Rule (3) of C.P.C. is extracted hereunder: “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 relinquishes, 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.” 6. The legislature has consciously incorporated Sub-Rule (3) of Order 2 of C.P.C. observing thereof, that when there are several reliefs which were available to the plaintiff/respondent in relation to the same cause of action at the time when the first suit is instituted, if the plaintiff, renounces his rights or knowingly omits to put a challenge to the cause of action, which was then actually available at the time when the first suit itself was instituted, that is the issue involved in the instant case, the challenge to the sale deed itself, which itself finds reference in the earlier suit, hence, the omission to sue for one of several reliefs, which were then available would attract the implication of Sub-Rule (3) of Order 2 Rule 2 of C.P.C. 7. The learned counsel for the defendant/revisionist had referred to the following judgments, dealt with hereunder. In that eventuality, I am of the view that there is an absolute relinquishment of right on part of plaintiff/respondents, to put a challenge to the sale deed, when the earlier suit which was instituted on 21.01.2014, the relief of challenge to sale deed was available. In that eventuality, I am of the view that there is an absolute relinquishment of right on part of plaintiff/respondents, to put a challenge to the sale deed, when the earlier suit which was instituted on 21.01.2014, the relief of challenge to sale deed was available. Hence, the observations, which has been made and referred to by the counsel for the revisionist in the light of the judgment of the Hon’ble Apex Court Civil Appeal No. 5527 of 2014 Coffee Board vs. M/s Ramesh Exports Pvt. Ltd. as decided by the judgment rendered by the Hon’ble Apex Court on 09.05.2014, the learned counsel for the revisionist has referred to Para 11, which is extracted here under: “11. The bar of Order 2 Rule 2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit; and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. Furthermore, the bar under Order 2 Rule 2 must be specifically pleaded by the defendant in the suit and the Trial Court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different. This was held by this Court in Alka Gupta vs. Narender Kumar Gupta (supra) which referred to decision of this Court in Gurbux Singh vs. Bhooralal wherein it was held that: “6. In order that a plea of a bar under Order 2 Rule 2(3) of the 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.” 8. In fact if the implications of Order 2 Rule 2 of C.P.C. which has been considered in the matters of Coffee Board (Supra) by the Hon’ble Apex Court, in the said case, if that is taken into consideration, the language used therein by the Hon’ble Apex Court, was to the effect that “when the cause of action” of the previous the suit is foundationed on a cause, which was then actually prevalent at the time, which is being subsequently sought to be agitated by filing of a subsequent suit would attract the bar of Order 2 Rule 2(3) of C.P.C. In fact I am in agreement with the ratio laid down in Para 11 owning to the reasons already assigned above and would be applicable in the instant case. 9. On the contrary the learned counsel for the respondent/plaintiff had referred to and had had relied upon the judgment reported in Rathnavathi and Another vs. Kavita Ganashamdas, (2015) 5 SCC 223 and he has particularly drawn the attention of this Court to the contents of Para 36 of the said judgment, which is extracted hereunder: “36. Again in the case reported in Smt. Chand Rani vs. Smt. Kamal Rani, this Court placing reliance on law laid down in aforementioned two cases took the same view. Similar view was taken with more elaboration on the issue in K.S. Vidyanadam and Others vs. Vairavan, wherein it was held as under: “10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limits specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani vs. Kamal Rani: “25.......it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract. (2) from the nature of the property. (3) from the surrounding circumstances, for example, the object of making the contract. In other words, the court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973.... In other words, the court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973.... 11.......Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so... The aforesaid view was upheld in K. Narendra vs. Riviera Apartments (P) Ltd.” 10. In fact if the principles and the backdrop under which the implications of Order 2 Rule 2 of C.P.C. was being considered in the said case, this judgment has to be read in its totality and not in a piecemeal, while interpreting the implications of Order 2 Rule 2(3) of C.P.C. particularly when this Court cannot ignore, as to what were the factual backdrop, under which the implications of Order 2 Rule 2 of C.P.C. was there made as a subject matter of consideration, before the Hon’ble Apex Court. The factual backdrop has been discussed by the Hon’ble Apex Court in Para 2 of the said judgment, which is extracted hereunder: “2. The plaintiff filed two suits, one for specific performance of agreement and other for grant of permanent injunction in relation to the suit house. The trial court vide common judgment and decree dated 16.10.2001 dismissed both the suits. The first appellate court, i.e. the High Court, in appeal, by impugned judgment and decree dated 08.09.2011 reversed the judgment and decree of the trial court and decreed both the suits in appeal, against the defendants. Being aggrieved by the judgment and decree of the High Court, Defendants 1 and 3 have approached this Court in the instant civil appeals.” 11. It was a case, where there were two suits filed, one suit was for the grant of decree of permanent injunction and second suit was filed for relief in relation to a specific performance of an agreement for sale. It was a case, where there were two suits filed, one suit was for the grant of decree of permanent injunction and second suit was filed for relief in relation to a specific performance of an agreement for sale. The two reliefs, which were subject matter of consideration in the aforesaid judgment, were entirely different and were rather not based upon, one another because in a suit for grant of decree of a specific performance, in relation to an agreement for sale, will in itself will not create any substantive right to bar an institution of a suit for grant of decree of permanent injunction. This could be very well justified in the light of the observations made in Para 7 of the judgment. 12. The observations, which has been made by the Hon’ble Apex Court, in an earlier judgment reported in the matters of Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810 , Para 7 of the said judgment is extracted hereunder: 7. 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. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O. 2. R. 2 Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2. R. 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar under O. 2. R. 2, Civil Procedure Code was not maintainable. Learned counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read: “The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court.” 13. The judgment of Gurbux Singh (supra) has observed, that the plea of bar of Order 2 Rule 2 (3) of C.P.C. should succeed for the defendant, who raises his plea and make out, that the second suit was in respect of the same cause of action, as that on which the previous suit was based. The judgment of Gurbux Singh (supra) has observed, that the plea of bar of Order 2 Rule 2 (3) of C.P.C. should succeed for the defendant, who raises his plea and make out, that the second suit was in respect of the same cause of action, as that on which the previous suit was based. In fact this first exception which had been carved out by the judgment of Hon’ble Apex court in Gurbux Singh (Supra), will in itself make the subsequent suit to be barred by Order 2 Rule 2(3) of C.P.C. because in the present case if the earlier suit, since it was based upon the cause of action which was then available to the plaintiff/revisionist, when he has instituted the first suit on 21.01.2014, that is by referring to the propriety of the sale deed of 04.12.2013, in fact the subsequent suit of the plaintiff/respondent, would be barred by Order 2 Rule 2(3) of C.P.C. In view of the principles which had been laid down by the judgment of Gurbux Singh itself, the reference of which has been made by the counsel for the respondents, while drawing the attention of this Court to the contents of Para 36 itself, in view of the aforesaid reasons, I am of the view that since the earlier suit was foundationed on the factum of fraudulent execution of the sale deed of 14.12.2013, and particularly when there was a specific and conscious plea about the propriety of the sale deed itself, where the plaintiff/respondent has claimed itself to be a void document, it was at that stage itself when the plaintiff had the first available opportunity and a cause of action too, to question the propriety of the sale deed, but rather the plaintiff has chosen to sue the defendant only for injunction and not in relation to the propriety of the sale deed dated 14.12.2013, which he himself has admitted in the earlier plaint to be a void document, thus the subsequent suit would be barred by Order 2 Rule 2(3) of C.P.C. as such the reasons which has been given by the Subordinate Court on the basis of the ratio laid down in the matter of Alka Gupta (Supra) will not be attracted in its principle to be applied in the instant case. 14. 14. Hence, I do not find any valid reasons in the judgment, as assigned while deciding Issue No. 7. Hence, the impugned order of 22.05.2017, is hereby quashed. The findings recorded on Issue No. 7, is answered in favour of the defendant/revisionist, for the reasons already given above, holding thereof that the subsequent suit filed by the plaintiff/respondent, being Suit No. 17 of 2014 for cancellation of sale deed dated 14.12.2013 would be bad in view of the bar created by law under Order 2 Rule 2(3) of C.P.C. In view of the aforesaid, the civil revision is allowed. The impugned order is hereby quashed.