BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.521 of 2009 1.Sakkarayan 2.Rajathi ... Petitioner Vs K.Subramani ... Respondent Prayer This Civil Revision Petition is filed against the fair and decreetal order passed in IA.No.13/2008 in OS.No.23/2006 by the learned Additional District Judge (FTC) Periyakulam dated 30.12.2008. !For Petitioner ... Mr.V.Raghavachari ^For Respondent ... Mr.A.Thirumurthy :ORDER
This Civil Revision Petition is filed against the order passed in
IA.No.13/2008 in OS.No.23/2006 by the learned Additional District Judge (FTC)
Periyakulam dated 30.12.2008.
2. The Respondent/Plaintiff had filed the above said suit for
specific performance of an agreement to sell dated 24.11.2004 and the
Petitioners had filed a Written Statement refuting the allegations made in the
plaint. Pending the said suit, the Petitioners/Defendants filed an application
in IA.NO.13/2008 under Order 2 Rule 2 of CPC to dismiss the suit on the ground
that the Respondent/ Plaintiff had already filed two suits in OS.No. 122/2005 on
the file of the District Munsif, Periyakulam and in OS.No.269/2006 on the file
of the District Munsif, Theni. OS.No.122/2005 was filed for the relief of
permanent injunction restraining the Petitioners from interfering with his
possession and also restraining them from encumbering the suit property in any
manner either by way of creating lease or sale of the suit property to third
parties. The said suit was decreed exparte on 13.7.2005 and the Respondent filed
EP.No.139/2005 against the Petitioners for contempt, as the Petitioners
continued to violate the decree granted by the court.
3. In the mean while, the Petitioners again attempted to alienate
the suit property to third parties and the Respondent submitted an objection to
the Sub Registrar, Theni, who in turn is said to have issued a certificate that
the Respondent may seek his remedy in the court of law. Thereafter, the
Respondent had field a suit in OS.No.269/2006 against the Petitioners, the Sub
Registrar, Theni and the District Collector, Theni for permanent injunction
restraining the Authorities from registering any document in respect of the suit
property.
4. In the mean while, the Petitioners had entered into a sale
agreement with one P.Jeyaraj, 6th Defendant in the suit in OS.No.23/2006.
According to the Respondent, the Petitioners failed to execute the sale deed in
spite of several demand made by him and hence, he had filed the suit in
OS.NO.23/2006 for specific performance of the agreement dated 24.11.2004 and for
permanent injunction restraining the 6th Defendant the subsequent agreement
holder not to encumber the suit property in any manner. The Petitioners had
filed their Written Statement contesting the said suit refuting the allegations
made therein. Pending the suit, the Petitioners had filed an application in
IA.No.13/2008 under Order 2 Rule 2 of CPC and Section 151 of CPC to dismiss the
above said suit. The learned Additional District Judge (FTC) Periyakulam
dismissed the said application as against which the unsuccessful Petitioner has
filed this Civil Revision Petition.
5. Mr.V.Raghavachari, the learned counsel for the Petitioner
strenuously contended that the Respondent willfully omitted and relinquished to
sue for larger and wider relief of specific performance even at the time of
initiation of the first suit and having failed to avail the course of action for
filing a suit for a larger relief, he cannot be allowed to maintain the present
suit under Order 2 Rule 2 of CPC. He placed reliance on the decisions of this
court rendered in the cases of Kumarayee Ammal and 10 others Vs. M.Ramanathan by
his Power Agent S.P.Kathiresan [2007-4-LW-319], Bhagawath Devi Vs. Aswin C.Jain
[2009-3-LW-456] and M/s.Raptakos Brett and Company Private Limited Vs M/s.Modi
Business Centre Private Limited [CDJ-2006-MHC-1661] in support of his
contentions.
6. On the other hand, Mr.A.Thirumurthy, the learned counsel for the
Respondent submitted that when both the earlier suit and the subsequent suit are
based on different causes of action, the provision of Order 2 Rule 2 of CPC are
not attracted. Further, in the present case, there was no omission on the part
of the Respondent to sue in respect of the claim for specific performance of the
agreement, as the cause of action for instituting a suit for specific
performance had not accrued at the time of filing of the previous suits. He
would submit that the cause of action for initiating the present suit had arisen
when there was failure to execute the sale deed. He placed reliance on the
decisions of the Honourable Supreme Court rendered in the cases of Kunjan Nair
Sivaraman Nair Vs. Narayanan Nair and others [2004-3-SCC-277], M/s.Bengal
Waterproof Limited Vs. M/s.Bombay Waterproof Manufacturing Company and another
[AIR-1997-SC-1398], HMA Data Systems Private Limited, Chennai Vs. SSI Limited by
its authorised signatory R.Rangarajan, Chennai [2009-5-MLJ-1174] and Ramajayam
and others Vs. Lakshmi Mills Co. Limited by its Managing Director [2009-6-MLJ-
310] in support of his contentions.
7. In the present case, the Respondent had filed the first suit in
OS.No.122/2005 on the file of the District Munsif, Periyakulam for permanent
injunction restraining the Petitioners and their legal heirs from alienating the
suit property to third party on the basis of the agreement of sale dated
24.11.2004 entered into between them and the said suit had been decreed exparte.
8. It is alleged that the Petitioners had received a sum of Rs.2
lakhs from the Respondent towards advance amount and handed over possession of
the property to the Respondent. It is further alleged that the balance amount
of Rs.16 lakhs should be paid on or before 23.9.2005 and the Petitioners should
execute a registered sale deed in favour of the Respondent. There is a specific
clause in the agreement that the Petitioners should execute a registered general
Power of Attorney in favour of the Respondent and the terms and conditions in
the sale agreement is extracted below:-
@,J Kjy; ehsJ njjpapypUe;J tUfpw 23/09/2005k; njjpf;Fs; nkw;go fpuaj; bjhiff;F
1tJ ghh;l;oahhpd; brhe;j brytpy; gj;jpu’;fs; th’;fp nkw;go 1tJ ghh;l;oahUf;fhtJ
nkw;goahh; nfhUk; egh;fSf;fhtJ fpuag; gj;jpuk; vGjp g{h;j;jp bra;J nkw;go
gj;jpuj;jpy; 2tJ ghh;l;oahh;fs; ifbaGj;J bra;J g{h;j;jp bra;J ghf;fpj; bjhifia
bgw;Wf;bfhz;L gj;jpuk; gjpt[ bra;J bfhLj;J tpl ntz;oabjd;Wk;. moapw;fz;l ,lj;jij
ek;kpy; 1tJ ghh;l;oahhpd; brhe;j brytpy; gpshl;Lfs; nghl;L mth; ,c&;lk; nghy
ghifs; mikj;J gpshl;Lfis jhd; tpUk;g[k; egh;fSf;F vf;hpbkz;l; bra;tjw;F 2tJ
ghh;l;oahh;fs; ve;jtpj Ml;nrgida[k; bra;af;Tlhbjd;wk; nkw;go tha;jh njjpf;Fs;
moapw;fz;l ,lj;jpy; gpshl; nghl;L tpw;gid bra;a[k;nghJ Vw;gLk; muR rk;ge;jg;gl;l
midj;jJ rfytpjkhd fhhpa’;fis bra;tjw;F kl;Lk; ek;kpy; 1tJ ghh;l;oahh; bgahpy;
2tJ ghh;l;oahh;fs; gth; vGjpf;bfhLj;J tpl ntz;oabjd;Wk;/@
9. According to the Respondent, he approached the Petitioners on
12.3.2005 and 15.3.2005 for execution of general power deed for obtaining layout
approval from the Director of Town Planning in accordance with the terms of the
agreement, but the Petitioners delayed the execution of the said deed and hence,
he had to file the suit in OS.No.122/2005. Subsequently, as the Petitioners
attempted to encumber the suit property, he had filed the second suit in
OS.NO.269/2006 and thereafter and the Petitioners failed to execute the sale
deed, he had filed the present suit for specific performance. It is seen that
the cause of action for the relief of specific performance not accrued, when the
first suit for injunction was instituted, as there was time till 23.9.1995 even
as per the agreement. The Respondent has pleaded in the present suit that he
approached the Petitioners to perform the agreement, but they failed to do so.
10. The provision in Order 2 Rule 2 of CPC is based on the principle that
a party should not be vexed twice for the same cause. It is directed against
the splitting of claims and remedies. It, however, does not require that
separate and distinct causes of action should be combined in one suit. Not only
the commonality of parties, but even that of the causes of action is an
essential pre-requisite for invoking the provision of Order 2 Rule 2 of CPC.
11. Therefore, it is clear that in order that a plea of a bar under
Rule 2 Order 2 of CPC to succeed, the Defendant who raises the plea must make
out that the 2nd suit was in respect of the same cause of action, on which the
previous suit was based and that in respect of the cause of action, the
Plaintiff was entitled to more than one relief. Unless there is identity between
the cause of action on which the earlier suit was filed and on which the claim
in the later suit is based, there would be no scope for the application of the
bar.
12. In the present case, the cause of action for instituting a suit
for specific performance had not accrued, when the Respondent filed a suit for
permanent injunction to restrain the Petitioners from alienating the property in
dispute to any one else and the cause of action for initiating the present
proceedings had arisen, as there was failure to execute the sale deed.
Therefore, I am of the considered view that the causes of action are different
and hence, the provisions of Order 2 Rule 2 of CPC are not attracted to the
facts of this case. Still further, a bare perusal of the provision shows that
the Plaintiff must omit or intentionally relinquish a portion of his claim
before he can be debarred from suing in respect thereof. But, in the present
case, there is no omission on the part of the Respondent to sue in respect of
the claim for specific performance of the agreement, when he filed the earlier
suit that arose on different causes of action. Therefore, I am of the
considered view that the decision of the court below cannot be assailed and
there are no merits in this Civil Revision Petition and the same is liable to be
dismissed.
13. In the result, this Civil Revision Petition is dismissed. No
costs. Consequently, the connected MP is closed.
Srcm
To:
The Additional District Judge (FTC) Periyakulam