Posted On by &filed under Gujarat High Court, High Court.


Gujarat High Court
Lalubhai Hirabhai Patel And Anr. vs Indo-Japan Industries And Ors. on 5 September, 2000
Equivalent citations: (2001) 3 GLR 2254
Author: H Mehta
Bench: H Mehta


JUDGMENT

H.H. Mehta, J.

1. This is an appeal under Section 104(1) of C.P.C. read with Order 43, Rule l(r) of C.P.C., filed by the original defendant Nos. 2 and 3 in Special Civil Suit No. 39 of 1994, challenging an order dated 15-3-1995, passed below Exh. 5 in Special Civil Suit No. 39 of 1994, at present, pending on the file of 2nd Jt. Civil Judge (S.D.), Bhavnagar (who will be referred to hereinafter as the learned Judge of the trial Court).

2. Here in this appeal, the appellants are the original defendant Nos. 2 and 3 while respondent No. 1 is a plaintiff in that suit. Respondent Nos. 2/a and 2/b are the heirs and legal representatives of original defendant No. 1 in the aforesaid suit, and therefore, parties will be referred to hereinafter as the plaintiff and defendants respectively at appropriate places.

3. The facts leading to this appeal in a nutshell are as follows :

3.1 Till 29-4-1983, plaintiff was a Power of Attorney-Holder of defendant No. 1-Dr. Virbhadrasinhji Gohil. On or about 21-3-1980, defendant No. 1 executed one agreement to sell (Banakhat) in favour of plaintiff for four different lands bearing Survey Nos. 244, 248, 258 (Paiki 8000 sq. yds.) and Survey No. 450 all situated in the area known as Vadva of city of Bhavnagar. It is the case of the plaintiff that he paid Rs. 1,50,000/- as an earnest money to the defendant No. 1 and it was agreed upon by plaintiff and defendant No. 1 that rest of the amount of consideration of the lands would be paid 90 days after permission is granted by the Government under Section 76 of the Urban Land (Ceiling and Regulation) Act, 1976. It is also the case of the plaintiff that, in continuation of said agreement dated 21-3-1980, one writing was executed by defendant No. 1 in favour of plaintiff on 9-8-1980. Thereafter, plaintiff executed an agreement to sell for land Survey No. 258 in favour of defendants

Nos. 2 and 3 on 22-8-1981. Thereafter, defendant No. 1 addressed a letter cancelling Banakhat dated 21-3-1980 to plaintiff on 30-4-1983 and returned the amount which he had received as an earnest money from plaintiff by Demand Draft. Thereafter, plaintiff, in reply to letter dated 30-4-1983 of the defendant No. 1 gave his reply dated 18-5-1983. It is the case of the plaintiff that defendant No. 1 in his capacity as an owner of the land bearing Survey No. 258 executed a supplementary agreement on 4-5-1987 in favour of defendant Nos. 2 and 3 in continuation of earlier main Satakhat dated 22-8-1981 and handed over the actual physical possession of the land Survey No. 258 to defendant Nos. 2 and 3. As per endorsement’s below the supplementary agreement dated 4-5-1987, defendant Nos. 2 and 3 paid consideration of Rs. 4,01,000=00 in pan by different items during the period from 22-8-1981 to 9-10-1993. Thereafter, defendant Nos. 2 and 3 paid Rs. 99,000/- to defendant No. 1 on 2-1-1995 and thus they have paid full consideration of Rs. 5 lacs to original defendant No. 1 i.e. owner of the land.

3.2 For remaining land Survey No. 248 one Special Civil Suit No. 176 of 1993 was filed by the plaintiff against defendant No. 1 in the Court of the learned Civil Judge (S.D.) Bhavnagar. That suit was compromised and ultimately plaintiff of that suit i.e. present plaintiff withdrew that suit on or about 1-12-1993.

3.3 As per the record, defendant No. 1 died on 29-7-1994. Defendant Nos. 1/1 and 1/2 who are respondent Nos. 2/a and 2/b in this appeal appeared and contested the suit by filing their written statement Exh’. 37. Defendant Nos. 2 and 3 also appeared in the suit and filed their written statement Exh. 25.

3.4 The present plaintiff filed Special Civil Suit No. 39 of 1994 in the Court of the learned Judge of the trial Court on 15-3-1994 for specific performance of the Salakhat dated 22-8-1981. On that very day, plaintiff submitted one application Exh. 5 seeking an interim relief in form of an interim injunction restraining defendant No. 1 from selling the land Survey No. 258 (Paiki 8000 sq. yds.) to any other person including defendant Nos. 2 and 3 and also restraining defendant No. 1 from executing sale deed in favour of defendant Nos. 2 and 3 or any person, till final disposal of the suit. By that application Exh. 5, plaintiff had also prayed for an interim injunction restraining the defendant No. 1 from transferring or assigning or disposing of the said suit land in any manner to any person, and also from handing over the possession of said suit land to any person. At the initial stage, the learned Judge of the trial Court was pleased to grant an ad-interim injunction in terms of para 9(a) of the application Exh. 5 dated 15-3-1994 for limited period upto 23-3-1994 and that order came to be extended from time to time till that application could be decided finally. On that day, urgent notices were also ordered to be issued against the defendants.

3.5 In that suit the defendant Nos. 2 and 3 appeared and contested the suit as well as application Exh. 5 by filing written statement Exh. 25. It appears that defendant No. 1 neither flied any written statement nor written reply, in reply to Exh. 5 application. As said earlier, the defendant No. 1 died on

29-7-1994, and therefore, the defendant Nos. 1/1 and 1/2 who are the heirs’ and legal representatives of the defendant No. 1, appeared and contested the suit by filing the written statement Exh. 31.

3.6 Thereafter, the learned Judge of the trial Court heard the arguments of the learned Advocates for both the parties and after considering the documents produced in the suit came to a conclusion that plaintiff was entitled to get an interim injunction as prayed for by him, and therefore, by passing order dated 15-3-1995, the learned Judge of the trial Court allowed the application Exh. 5 and ordered to continue the earlier ad interim injunction granted on 15-3-1994 till final disposal of the suit. As against that order dated 15-3-1995 below Exh. 5, the defendant Nos. 2 and 3 have filed this present appeal.

4. In this appeal, the respondent No. 1 is original plaintiff who has not appeared and contested this appeal though he has been duly served with the notice of this Court. The original defendant Nos. 1/1 and 1/2 who are the heirs and legal representatives of original defendant No. 1, have supported the case advanced by the appellants in this appeal.

5. When this appeal was taken up for final hearing on 17-8-2000, the appellant had furnished copies of six documents with index in form of paper-book. That documents were taken up on record. On that day appeal could not be finally heard and decided. Again, when this matter came up on board on 31-8-2000, the appellant produced 10 copies of documents with index in form of paper-book. That documents are also taken up on record. Mr. Sanjanwala, learned Senior Advocate for the appellant has argued that all these documents are very much necessary to finally dispose of this appeal, in accordance with law.

6. Shri Sanjanwala, learned Senior Advocate for the appellants has argued that plaintiff is not entitled to get an interim injunction as prayed for mainly on three grounds :

 (1)      That suit itself is time-barred in view of Art. 54 of the Limitation Act, 1963, and therefore, plaint ought to have been rejected in view of provisions of Order 7, Rule ll(d).  
 

 (2)      That plaintiff's suit is barred by Order 2, Rule 2(3) of C.P.C.  
 

 (3)     That as defendant No. 1 had already cancelled the earlier Banakhat by his letter dated 18-5-1983, now plaintiff cannot bring the suit after 11 years i.e., in the year 1994.   
 

6.1 Now, let us examine the contentions of appellants. Admittedly, plaintiff has filed the suit for specific performance on the basis of an agreement to sell dated 21-3-1980. That certified copy of the agreement to sell dated 21-3-1980 is at pages 21 to 25 in the paper-book which is produced on 31-8-2000. If we read that agreement to sell, lands of four different Survey Numbers are recited in it. That Survey Numbers are 244, 450, 248 and 258 (paiki 8000 sq. yds.) situated in the area known as Vadva in Bhavnagar City. Shri Sanjanwala has argued that, as per Art. 54 of Part 2 of the Schedule below Limitation Act, 1963, three years period of limitation is prescribed for a suit for specific

performance of a contract. He has argued that this period of limitation of three years starts to run from the date fixed for performance and in case in which such date is not fixed, then limitation of three years will start to run from the date on which the plaintiff has notice that performance is refused. If we read that agreement to sell, we find that the date for performance is not fixed. As per that Satakhat dated 21-3-1980, the original defendant No. 1 had agreed to execute a final sale deed within 90 days from the date of permission under Section76 of the Urban Land (Ceiling and Regulation) Act, 1976 which was to be obtained from the State Government. Under the circumstances, the latter part of vertical Column No. 3 of Art. 54 of the Limitation Act, 1963 will be applicable to present case. The period of limitation of three years, will start to run when the plaintiff has received notice that performance is refused. Shri Sanjanwala has argued that on or about 30-4-1983, the defendant No. 1 wrote a letter to plaintiff. The copy of that letter is at page 17 of earlier paper-book produced on 17-8-2000. By that letter, defendant No. 1 treated the said Satakhat cancelled and returned the amount which he had received, by Demand Draft. That letter dated 30-4-1983, appears to have been received by plaintiff on or about 9-5-1983 vide Page 19 of earlier paper-book. Hence, plaintiff came to know that defendant No. 1 did not want to act upon the Satakhat and he has refused to execute a final sale deed. Thus, he came to know in the month of May 1983.

6.2 In view of above legal position, the plaintiff ought to have filed the suit for specific performance on or about 9-5-1986. Instead of this, the plaintiff has filed the present suit on 15-3-1994 i.e., about 8 years after prescribed period of limitation already had expired as per Art. 54 of the Limitation Act, 1963 and thus, suit in which injunction has been granted, is ex-facie time-barred. Shri Sanjanwala, learned Advocate for the appellant has argued that in view of Order 7, Rule 11(d) of C.P.C., the plaint of such suit should have been ‘rejected by the learned Judge of the trial Court because the present suit clearly appears, from the statements in the plaint, to be time-barred by the Limitation Act, 1963. Thus, Shri Sanjanwala has argued that when suit itself is time-barred, the learned Judge of the trial Court ought not to have considered the application Exh. 5 and he ought to have refused to grant an interim injunction in favour of the plaintiff.

6.3 One another contention of Shri Sanjanwala is to the effect that originally Satakhat was executed for four different lands and on the basis of that agreement the plaintiff had previously filed one Special Civil Suit No. 45 of 1992 (necessary papers are there at pages No. 1 to 20 of the second paper-book produced on 31-8-2000). Looking to para 17/a of the plaint of Special Civil Suit No. 45 of 1992, that suit was filed for specific performance of only two Survey Nos. 244 and 450, out of four Survey Numbers. In that suit, compromise purshis was filed by present plaintiff and defendant No. 1 on 16-3-1992. Shri Sanjanwala has argued that at that time that suit was not compromised by parties by reserving right of plaintiff to file a suit for Survey No. 258 (Paiki 8000 sq. yds.) in future. As per his arguments, when plaintiff had not prayed for any prayer to reserve his right for filing a separate suit for Survey No. 258 in future in view

of Order 2, Rule 2(3) of C.P.C., now on the basis of that very Satakhat, present suit cannot be filed by the plaintiff for Survey No. 258. Order 2, Rule 2 of C.P.C., reads as follows :

“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 relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.  
 

 (2)      Relinquishment of pan 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.  
 

 Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."   
 

 6.4 In view of aforesaid provisions of Order 2, Rule 2 of C.P.C., when a person who is 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 cannot afterwards sue for any relief so omitted.  
 

7. Shri Sanjanwala has argued that as plaintiff was entitled to reliefs for four different lands mentioned in Satakhat, he ought to have filed earlier suit i.e.. Special Civil Suit No. 45 of 1992 for reliefs for all the four lands. Instead of this, the plaintiff in that earlier suit prayed for relief for only two lands and at that time he did not seek any permission from the Court to reserve his right to sue in future for remaining two lands, one of which was Survey No. 258, and therefore, in view of Order 2, Rule 2(3) of C.P.C., the present suit is barred. In support of his arguments, he has placed reliance in the case of Mohammad Khalil Khan & Ors. v. Mahbub Ali Mian & Ors., reported in AIR 1949 Privy Council 78, wherein, it has been held that where the same cause of action applied to the recovery of properties X and Y, but the plaintiff only sued for property X in the former suit, it cannot be said that he did not “omit to sue” for property Y in such suit, merely because he attempted to include such property in that suit by means of an amendment of the plaint but was not allowed to do so.

In view of the principle laid down in the aforesaid authority, the plaintiff ought to have included the relief for Survey No. 258 in the earlier suit bearing Special Civil Suit No, 45 of 1992. In that earlier suit, he claimed relief only for two Survey Numbers and Survey No. 258 was left out without leave of the Court, and therefore, this suit is barred under Order 2, Rule 2(3) of the C.P.C. Shri Sanjanwala has also placed reliance on the case of Arjunsingh v. Shahu Maharaj Narain, reported in AIR 1950 All. 415. In this cited case, plaintiff

had filed a suit for specific performance. As per facts of that case where a person sues another for specific performance of an agreement to sell, and subsequently on the basis of the same agreement, sues for possession, the subsequent suit would be barred by Order 2, Rule 2 of C.P.C. Thus, in view of the facts of this case, in the earlier suit when plaintiff withdrew Special Civil Suit No. 45 of 1992 he did not seek permission from the Court to file a suit for Survey No. 258 in future.

7.1 Likewise, plaintiff also filed one Special Civil Suit No. 176 of 1993 against present defendant No. 1 and other defendants. That suit was based on the same Satakhat on which present suit is filed. The plaint of that Special Civil Suit No. 176 of 1993 is at pages 96 to 114 of the paper-book produced on 31-8-2000. Looking to prayer clause in para 15 of plaint of that Special Civil Suit No. 176 of 1993, the plaintiff had prayed for relief for land Survey No. 248 (12 Acres), and Survey No. 249 (13 Acres) on the basis of that very Satakhat dated 21-3-1980. That suit was withdrawn on 1-12-1993 and at that time also the plaintiff did not seek permission of the Court for reserving his right to file a suit in future against defendant No. 1, for Survey No. 258 on the basis of that very Satakhat. Thus prima facie the suit is barred under Order 2, Rule 2 of C.P.C.

7.2 The third contention of Slid Sanjanwala is to the effect that when original defendant No. 1 i.e., person who executed Satakhat has already cancelled Satakhat in the year 1983, now that Satakhat cannot been enforced in the year 1994. He has drawn attention of this Court to letter dated 30-4-1983 (Page 17 of First Paper-Book) addressed by defendant No. 1 to plaintiff wherein it is specifically stated as follows :

“Kindly note that in view of the fact that the agreement for sale come to an end on 21st March, 1983, neither party has any claim against the other. Also note that power of attorney given to you in August, 1981 is also hereby cancelled.”

7.3 This notice dated 30-4-1983 appears to have been received by plaintiff on 9-5-1983 vide letter dated 18-5-1983 of which copy is produced at page 19 of first paper-book. Thus, when defendant No. 1 has already cancelled the Satakhat, suit on the basis of that very Saiakhat is now not maintainable, and therefore, plaintiff has no prima fade case to obtain an interim injunction. In spite of this, the learned Judge of the trial Court has granted an interim injunction which is challenged in this appeal.

8. In view of what is stated hereinabove, the order which is challenged in this appeal is against the principles of law and when suit itself is time-barred and not maintainable in view of Order 2 Rule 2 of C.P.C., the order itself is illegal and same requires to be set aside. In view of this, this present appeal is allowed. The order dated 15-3-1995 passed below Exh. 5 in Special Civil Suit No. 39 of 1994 which is challenged in this appeal is hereby set aside. No order as to costs.

9. Appeal allowed.


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