INBASEGARAN & ANR. Vs. S. NATARAJAN(DEAD) THROUGH LRS
Code Of Civil Procedure, 1908 (CPC)
Section 2 - Definitions- In this Act, unless there is anything repugnant in the subject or context,-
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4215-4216 of 2007, Judgment Date: Oct 29, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4215-4216 OF 2007
Inbasegaran and another ……Appellant(s)
versus
S. Natarajan (Dead) thr. Lrs. …..Respondent(s)
WITH
CIVIL APPEAL NOs.4217-4218 OF 2007
S. Natarajan (Dead) thr. Lrs. ……Appellant(s)
versus
Inbasegaran and another …..Respondent(s)
CIVIL APPEAL NOs.4219 OF 2007
S. Natarajan (Dead) thr. Lrs. ……Appellant(s)
versus
Inbasegaran …..Respondent(s)
JUDGMENT
M.Y. EQBAL, J.
These appeals are directed against the common judgment and order
dated 30.4.2004 passed by the High Court of Judicature at Madras in A.S.
Nos.665 and 666 of 2001, whereby the appeals preferred by S. Natarajan were
allowed. This matter pertains to a property bearing S.No.159/10 and 11,
Plot No.436, Tallakulam Village, Madurai City, measuring 6980 sq.ft., which
was allotted to one S. Natarajan on lease-cum-sale agreement by the Housing
Board. S. Natarajan, original defendant in O.S. Nos.445/85 & 252/86 and
plaintiff in O.S. No.3/86 alleged to have entered into a sale agreement
with respect to the suit property with one Inbasegaran. Therefore, for the
sake of convenience S. Natarajan and Inbasegaran are hereinafter
respectively referred to as ‘defendant’ and ‘plaintiff’.
2. The facts giving rise to the present appeals are that the plaintiff
filed a suit being O.S. No.252 of 1986 for specific performance of the
agreement for sale dated 19.1.1984 with respect to aforesaid suit schedule
property. According to him, the said land was allotted to the defendant on
lease-cum-sale agreement on 4.7.1975 by the Tamil Nadu Housing Board (in
short, ‘Housing Board’). Since the defendant had not constructed building
on the said site for the purpose of getting sale deed as contemplated under
the lease-cum-sale agreement, the Board did not execute the sale deed in
favour of the defendant. Hence, he entered into a sale agreement on
19.1.1984 with the plaintiff. In the said agreement, he agreed to sell the
suit house site to the plaintiff for a total consideration of Rs.3,84,220/-
and received a sum of Rs.1,00,000/- as advance in cash towards part of the
sale consideration. It is alleged that the defendant agreed that after a
sale deed executed in his favour from the Housing Board he will execute and
register the sale deed in favour of the plaintiff or his family members
after receiving the balance sale consideration. Time for performance of
the agreement was tentatively fixed as four months and the same was
extended until the defendant got the sale deed executed from the Housing
Board. The parties agreed that the plaintiff shall prepare a plan for
construction of a building in the said property and the defendant will sign
the building plan and get the plan approved and the plaintiff thereafter
shall construct the building in the suit housing plot at his own expenses.
3. Pursuant to the sale agreement, the plaintiff took possession of the
suit property and completed the construction. According to the plaintiff,
the defendant had been representing to the plaintiff that he has not yet
got the sale deed executed in his favour from the Housing Board but
attempted to forcibly take possession of the building constructed on the
suit property by the plaintiff. So the plaintiff filed a suit being O.S.
No.445/1985 on 11.9.1985 for permanent injunction restraining the defendant
herein from taking forcible possession of the building constructed in the
suit property. Pending the aforesaid suit, few days after, the plaintiff
on 25.4.1986 filed aforesaid suit for specific performance being O.S.
No.252 of 1986.
4. The defendant pleaded in his written statement that the agreement
dated 19.1.1984 is not a valid document and the plaintiff cannot maintain
the suit as he had relinquished his right. It is also stated that the
agreement was executed when the defendant was not the owner of the site and
any sale by the defendant was prohibited as per the terms and conditions of
the lease-cum-sale agreement entered into with the Housing Board and so the
agreement in question is void, inoperative and opposed to law. The
defendant also denied the payment of Rs.1,00,000/- in cash as advance as
alleged by the plaintiff. Even with respect to the averment in the plaint
that the plaintiff was permitted to put up construction in the suit site,
the same is denied. The defendant also denied that the plaintiff put up
construction at his own cost.
The defendant further denied that the plaintiff was given possession of the
suit property and claimed that he never handed over possession of the
property to the plaintiff at any point of time. It is alleged that the
plaintiff is not entitled to a decree for specific performance because the
agreement dated 19.1.1984 no longer subsists. It is further alleged that
the subsequent suit being O.S. No.252/1986 for specific performance is
barred under Order 2, Rule 2 of the Code of Civil Procedure because the
plaintiff who instituted the earlier suit O.S. No.445/1985, should have
included the relief for specific performance and, in any event, could not
have filed O.S. No.252/1986 without any leave of the Court.
5. The defendant also filed a suit being O.S. No.3/1986 seeking a decree
for injunction restraining the purchaser (defendants therein) from
interfering with his possession and enjoyment of the suit property. The
trial court tried all the three suits together and dismissed the suits
filed by the plaintiff and defendant for injunction in O.S. Nos.445/1985
and 3/1986 and decreed the suit in O.S. No.252/1986 preferred by the
plaintiff for specific performance with the direction to the defendant to
execute and register the sale document in favour of the plaintiff.
6. Aggrieved by the judgment and decree of the trial court, the
defendant S. Natarajan preferred appeals before the High Court being A.S.
Nos.665 and 666 of 2001.
7. High Court held that the causes of action in both the suits filed by
the appellant are identical, arose from the same transaction and that is
why the trial court also had a common trial and decided the case by a
common judgment. The plaintiff has not come forward with the suit in O.S.
252/1986 on the basis of the fact that the sale deed with respect to the
suit property was obtained only on 18.2.1985 by the defendant from the
Housing Board and the defendant failed to execute the sale deed in favour
of the plaintiff pursuant to Ex.A1 agreement and so the prayer sought for
in the said suit could have been sought for even in the Original Suit
No.445/1985 as the pleading set out in the plaint in O.S. 252/1986 was
available even on the date when O.S. No.445/1985 was filed. Since the
plaintiff omitted to seek such a relief and did not obtain the leave of the
Court to file the subsequent suit, it amounts to relinquishment of his
rights which is sought for in O.S. 252/1986 and he cannot sustain the
subsequent suit in O.S. 252/1986 for the relief sought for in that suit in
view of Order 2, Rule 2 of the Code.
8. The High Court formulated as many as following six points for
consideration to decide the appeals:
(1) Whether Ex.A1 is enforceable in law?
(2) Whether the suit in O.S. No.252/1986 is maintainable on the basis of
Ex.A1 in view of variations made in Exs.B7 and B9?
(3) Whether the respondent/plaintiff was ready and willing to perform his
part of the contact?
(4) Whether the suit in O.S. 252/1986 is maintainable in view of Order 2,
Rule 2 of the Code of Civil Procedure?
(5) Whether the relief for the specific performance of the agreement suit
in O.S. 252/1986 can be rejected on the ground that the
respondent/plaintiff has not come to court with clean hands?
9. However, instead of deciding all the points, the High Court took up
only Point no.4 and 5 and decided the appeal in following three paragraphs:
“13. Further, in the present case, the parties and the court felt that in
view of common issue, the said suit was to be dealt with and so the trial
court in a common judgment dated 28.7.2000 disposed of the same. The trial
court though framed the issue, simply rejected that it is not barred by
Order 2, Rule 2 of the Code on assumption that there is a change of cause
of action. So the said findings of the trial court cannot be sustained in
law. So we can safely conclude that the suit in O.S. No. 252/1986 is
barred under Order 2, Rule 2 of the Code and so it has to be rejected.
14. Even with respect to Point No.5, it has to be held that the
respondent/plaintiff has come to court by filing O.S. 252/1986 with unclean
hands. Though in the plaint filed in O.S. No.3/1986 which was filed on
5.9.1985, it is specifically stated that conditional sale deed dated
18.2.1985 was executed in favour of the appellant/defendant by the Tamil
Nadu Housing Board. In O.S. No.252/1986 which was filed on 5.4.1986, the
respondent/plaintiff has come forward with the false plea that the
appellant/defendant had been representing to the plaintiff that he had not
yet got the sale deed executed in his favour by the Tamil Nadu Housing
Board, which is contrary to the averment made in the earlier suit. Learned
counsel for the respondent/plaintiff also tried to submit that the
respondent has no knowledge about the said document so as to enable him to
file the suit for specific performance of the Agreement on that basis. The
said plea is nothing but false in view of the specific averment made in the
plaint in O.S. No.3/1986. The said plea that the sale deed is yet to be
got by the appellant/defendant from the Tamil Nadu Housing Board is a
material fact to enforce the right and got the sale deed by the
respondent/plaintiff arose only after getting the sale deed by the
appellant/defendant from the Tamil Nadu Housing Board as contemplated under
Ex.A1. The respondent/plaintiff suppressed the said material fact. Hence,
even on that ground the suit in O.S. 252/1986 has to be rejected holding
that the respondent/plaintiff is not entitled to equitable relief of
specific performance of the Agreement in view of the above said fact.
15. In view of the findings given above with respect to point Nos.4 and 5,
we are; not inclined to deal with the other points.”
10. By impugned order dated 30.4.2004, the High Court allowed the appeals
preferred by the defendant based on Order 2 Rule 2 with a direction to the
defendant to pay the cost of construction (Rs.8,00,000/-) to the plaintiff
and on such deposit, the plaintiff would hand over the suit property with
building to the defendant and after handing over the same, he can withdraw
the aforesaid amount along with the money already deposited, if any.
Hence, present cross appeals by both sides. The High Court further held
that no other points need to considered and decided.
11. Mr. K. Parasaran, learned senior counsel appearing for the appellants-
plaintiff, assailed the impugned judgment passed by the High Court as being
erroneous in law as also in facts. Learned counsel firstly drew our
attention to the agreement to sell dated 19.1.1984 and submitted that the
defendant-respondent put a condition in the said agreement that the sale
deed shall be executed by the defendant in favour of the plaintiff only
after getting transfer of the lease hold plot in his favour by the Housing
Board. However, pending transfer of the property by the Housing Board in
favour of the defendant-respondent, the rowdy elements of the defendant
threatened the appellant-plaintiff to dispossess him from the building
constructed by the plaintiff. In order to restrain and prevent the
defendant, the appellant filed a suit for injunction being O.S. No.445 of
1985 seeking the prohibitory order restraining the respondent from
dispossession of the plaintiff.
12. Simultaneously, before the trial court, the defendant-respondent also
filed a suit being O.S. No.3/1986 (13/1985) making similar prayer for
injunction against the appellant. In the written statement of the said
suit, for the first time the defendant of the suit (appellant herein)
disclosed in paragraph 4 that the sale deed was executed by the Housing
Board in his favour and now the plaintiff of the suit (respondent herein)
is the absolute owner of the property. Having come to know about the
transfer of the property by the Housing Board in favour of the plaintiff,
legal notices were given by the appellant to the respondent and a regular
suit for specific performance was filed.
13. Mr. Parasaran submitted that from bare reading of the plaints in two
suits, it would be apparently clear that cause of action of each of the two
suits by the plaintiff was quite different and distinct and the same would
not attract the provisions of Order 2, Rule 2 CPC. Mr. Parasaran further
submitted that the trial court had categorically held that the provisions
of Order 2, Rule 2 shall have no application in the facts and circumstances
of the case. Mr. Parasaran then drew our attention to the agreement dated
19.1.1984 and the codicil sale agreement dated 31.4.1984 to show that the
period of sale agreement between the plaintiff-appellant and the defendant-
respondent was further extended in anticipation of the transfer of the
property by the Housing Board in favour of the defendant. Lastly, it was
contended that the provision of Order 2 Rule 2, CPC does not apply where
the two suits are filed on different cause of action and the counsel relied
upon the decision of this Court in the cases of Gurbux Singh vs. Bhooralal,
(1964) 7 SCR 831; Kewal Singh vs. Lajwanti, (1980) 1 SCC 290 and in the
case of Lakshmi alias Bhagyalakshmi and another vs. E. Jayaram (dead) by
Lr., (2013) 9 SCC 311.
14. Mr. R. Balasubramanian, learned senior counsel appearing for the
respondent-defendant, firstly submitted that if the allegations made in the
plaint filed by the plaintiff-appellant are read together it would be clear
that the plaintiff had knowledge about the sale deed executed by the
Housing Board in favour of the defendant. It was only because of that the
plaintiff in the plaint categorically stated that he reserves his right to
file a suit for specific performance. According to the learned counsel,
the causes of action in both the suits filed by the plaintiff are
identical, and therefore, the subsequent suit for specific performance is
not maintainable being barred under Order 2 Rule 2 CPC. Learned counsel
put heavy reliance on the decision of this Court in the case of Virgo
Industries (Eng.) (P) Ltd. vs. Venturetech Solutions (P) Ltd., (2013) 1 SCC
625.
15. We have heard learned counsel appearing for the parties, perused the
pleading and findings recorded by the trial court as also by the first
Appellate Court.
16. Admittedly, the first suit being O.S. No.445 of 1985 was filed by the
plaintiff-appellant for the grant of permanent injunction restraining the
defendant, his agents and servants from interfering with the possession and
enjoyment of the suit property by the plaintiffs either by attempting to
trespass into it or in any other manner whatsoever. Besides other facts,
it was pleaded that in pursuance of the sale agreement the plaintiff took
possession of the suit plot from the defendant and began construction of
Kalyana Mahal. It was alleged by the plaintiff that the defendant with an
ulterior malafide motive and intention of extracting more money was
representing to the plaintiffs that he would execute the sale deed after
getting the sale deed from the Housing Board and after completion of the
construction of the building. With that ulterior motive, the defendant
tried to forcibly take possession of the building constructed by the
plaintiffs and threatened the plaintiffs’ worker to remove them from the
building. The plaintiffs then gave complaint to the police and in
response, the police immediately rushed to the suit property and warned the
rowdies not to enter into the building. The plaintiffs, therefore, pleaded
that the defendant was again arranging to gather unruly elements and to
forcibly and unlawfully take possession of the suit property from the
plaintiffs. With that apprehension, the suit was filed mainly on the cause
of action which arose when the defendant attempted to forcibly occupy the
suit property by driving away plaintiffs’ workers and that the defendant
was arranging to forcibly and unlawfully take possession of the suit
property. The defendant, in his written statement, denied each and every
allegation and stated that building was constructed by him and in fact the
plaintiffs attempted to forcibly take possession of the building.
17. In the subsequent suit filed by the plaintiff being O.S. No.252 of
1986, a decree for specific performance of the agreement was claimed on the
ground inter alia that the defendant in the earlier suit took a defence
that the sale agreement was allegedly given up or dropped by the plaintiff.
The cause of action, as pleaded by the plaintiff in the subsequent suit,
arose when defendant-respondent disclosed the transfer made by Housing
Board in his favour and finally when the defendant was exhibiting an
intention of not performing his part of the sale agreement and in reply to
the lawyer’s notice the defendant made a false allegation and denied to
execute the sale deed as per the agreement.
18. A perusal of the pleadings in the two suits and the cause of action
mentioned therein would show that the cause of action and reliefs sought
for are quite distinct and are not same.
19. Indisputably, cause of action consists of a bundle of facts which
will be necessary for the plaintiff to prove in order to get a relief from
the Court. However, because the causes of action for the two suits are
different and distinct and the evidences to support the relief in the two
suits are also different then the provisions of Order 2 Rule 2 CPC will not
apply.
20. The provision has been well discussed by the Privy Council in the
case of Mohd. Khalil Khan & Ors. vs. Mahbub Ali Mian & Ors., AIR (36) 1949
Privy Council 78, held as under:-
“61 The principles laid down in the cases thus far discussed may be thus
summarised:-
(1) The correct test in cases falling under Order 2, Rule 2, is "whether
the claim in the new suit is in fact founded upon a cause of action
distinct from that which was the foundation for the former suit." Moonshee
Buzloor Ruheem v. Shumsunnissa Begum (1867-11) M.I.A. 551.
(2) The cause of action means every fact which will be necessary for the
plaintiff to prove if traversed in order to support his right to the
judgment. Read v. Brown (1889-22) Q.B.P. 128..
(3) If the evidence to support the two claims is different, then the causes
of action are also different. Brunsden v. Humphrey (1884-14) Q.B.D. 141 .
(4) The causes of action in the two suits may be considered to be the same
if in substance they are identical. Brunsden v. Humphrey (1884-14) Q.B.D.
141.
(5) The cause of action has no relation whatever to the defence that may be
set up by the defendant nor does it depend upon the character of the relief
prayed for by the plaintiff. It refers...to the media upon which the
plaintiff asks the Court to arrive at a conclusion in his favour. Muss.
Chand kour v. Partab Singh (15 I.A. 156 : Cal.98 P.C.). This observation
was made by Lort Watson in a case under Section 43 of the Act of 1882
(corresponding to Order 2, Rule 2), where plaintiff made various claims in
the same suit.”
21. The Constitution Bench of this Court, considering the scope and
applicability of Order 2 Rule 2 of the CPC, in the case of Gurbux Singh vs.
Bhooralal, (supra) AIR 1964 SC 1810, held as under:
“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; (i) 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 latter 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. It is for this reason that we consider
that a plea of a bar under Order 2 Rule 2 of the 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 CS 28 of
1950 were not filed by the appellant in the present suit as evidence in
support of his plea under Order 2 Rule 2 of the 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 the 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
Order 2 Rule 2 of the Civil Procedure Code was not maintainable.
xxxxx
It was his submission that from this passage we should infer that the
parties had, by agreement, consented to make the pleadings in the earlier
suit part of the record in the present suit. We are unable to agree with
this interpretation of these observations. The statement of the learned
Judge. “The two courts have, however, freely cited from the record of the
earlier suit” is obviously inaccurate as the learned District Judge
specifically pointed out that the pleadings in the earlier suit were not
part of the record and on that very ground had rejected the plea of the bar
under Order 2 Rule 2 of the Civil Procedure Code. Nor can we find any basis
for the suggestion that the learned Judge had admitted these documents at
the second appeal stage under Order 41 Rule 27 of the Civil Procedure Code
by consent of parties. There is nothing on the record to suggest such an
agreement or such an order, assuming that additional evidence could
legitimately be admitted in a second appeal under Order 41 Rule 27 of the
Civil Procedure Code. We can therefore proceed only on the basis that the
pleadings in the earlier suit were not part of the record in the present
suit.”
22. In the case of of Kewal Singh vs. Lajwanti (supra), while considering
the applicability of Order 2 Rule 2 CPC, this Court observed that:-
“5. So far as the first two contentions are concerned, we are of the
opinion that they do not merit any serious consideration. Regarding the
question of the applicability of Order 2 Rule 2 CPC the argument of the
learned Counsel for the appellant is based on serious misconception of law.
Order 2 Rule 2 CPC runs thus:
“2(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) 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.”
A perusal of Order 2 Rule 2 would clearly reveal that this provision
applies to cases where a plaintiff omits to sue a portion of the cause of
action on which the suit is based either by relinquishing the cause of
action or by omitting a part of it. The provision has, therefore, no
application to cases where the plaintiff bases his suit on separate and
distinct causes of action and chooses to relinquish one or the other of
them. In such cases, it is always open to the plaintiff to file a fresh
suit on the basis of a distinct cause of action which he may have
relinquished.
6. In the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78,
the Privy Council observed as follows:
“That the right and its infringement, and not the ground or origin of the
right and its infringement, constitute the cause of action, but the cause
of action for the Oudh suit (8 of 1928) so far as the Mahbub brothers are
concerned was only a denial of title by them as that suit was mainly
against Abadi Begam for possession of the Oudh property; whilst in the
present suit the cause of action was wrongful possession by the Mahbub
brothers of the Shahjahanpur property, and that the two causes of action
were thus different.
7. Applying the aforesaid principles laid down by the Privy Council we find
that none of the conditions mentioned by the Privy Council are applicable
in this case. The plaintiff had first based her suit on three distinct
causes of action but later confined the suit only to the first cause of
action, namely, the one mentioned in Section 14-A(1) of the Act and gave up
the cause of action relating to Section 14(1)(e) and (f). Subsequently, by
virtue of an amendment she relinquished the first cause of action arising
out of Section 14-A(1) and sought to revive her cause of action based on
Section 14(1)(e). At the time when the plaintiff relinquished the cause of
action arising out of Section 14(1)(e) the defendant was not in the picture
at all. Therefore, it was not open to the defendant to raise any objection
to the amendment sought by the plaintiff. For these reasons, we are
satisfied that the second amendment application was not barred by the
principles of Order 2 Rule 2 CPC and the contention of the learned counsel
for the appellant must fail.”
23. In the case of Deva Ram vs. Ishwar Chand, (1995) 6 SCC 733, this
Court, considering its various earlier decisions, observed as under:-
“14. What the rule, therefore, requires is the unity of all claims based on
the same cause of action in one suit. It does not contemplate unity of
distinct and separate causes of action. If, therefore, the subsequent suit
is based on a different cause of action, the rule will not operate as a
bar. (See Arjun Lal Gupta v. Mriganka Mohan Sur, (1974) 2 SCC 586; State of
M.P. v. State of Maharashtra, (1977) 2 SCC 288; Kewal Singh v. B. Lajwanti,
(1980) 1 SCC 290).
15. In Sidramappa v. Rajashetty, (1970) 1 SCC 186, it was laid down that if
the cause of action on the basis of which the previous suit was brought,
does not form the foundation of the subsequent suit and in the earlier suit
the plaintiff could not have claimed the relief which he sought in the
subsequent suit, the latter [pic]namely, the subsequent suit, will not be
barred by the rule contained in Order 2 Rule 2, CPC.”
24. In the case of Sidramappa vs. Rajashetty & Ors., AIR (1970) SC 1059,
this Court held:
“7. The High Court and the trial court proceeded on the erroneous basis
that the former suit was a suit for a declaration of the plaintiff’s title
to the lands mentioned in Schedule I of the plaint. The requirement of
Order II Rule 2, Code of Civil Procedure is that every suit should include
the whole of the claim which the plaintiff is entitled to make in respect
of a cause of action. “Cause of action” means the “cause of action for
which the suit was brought”. It cannot be said that the cause of action on
which the present suit was brought is the same as that in the previous
suit. Cause of action is a cause of action which gives occasion for and
forms the foundation of the suit. If that cause of action enables a person
to ask for a larger and wider relief than that to which he limits his
claim, he cannot afterwards seek to recover the balance by independent
proceedings. — see Mohd. Hqfiz v. Mohd. Zakaria AIR(1922) PC 23.”
8. As seen earlier the cause of action on the basis of which the previous
suit was brought does not form the foundation of the present suit. The
cause of action mentioned in the earlier suit, assuming the same afforded a
basis for a valid claim, did not enable the plaintiff to ask for any relief
other than those he prayed for in that suit. In that suit he could not have
claimed the relief which he seeks in this suit. Hence the trial court and
the High Court were not right in holding that the plaintiff’s suit is
barred by Order II, Rule 2, Code of Civil Procedure.”
25. In the case State of M.P. v. State of Maharashtra & Ors., (1977) 2
SCC 288, at page 295 this Court observed as under: -
“24. This Court in State of Bihar v. Abdul Majid, AIR 1954) SC 245, stated
that a government servant could ask for arrears of salary. Counsel for
Madhya Pradesh said that the decision of this Court in Abdul Majid case
declared what the existing law has been, and, therefore, the plaintiff
could not contend that it was not open to him to ask for arrears of salary
in the 1949 suit. It is in that background that Madhya Pradesh contends
that the plaintiff not having asked for relief under Order 2 Rule 2 of the
Code of Civil Procedure would not be entitled to claim salary in the 1956
suit.
25. The contention of Madhya Pradesh cannot be accepted. The plaintiff will
be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he
omits to sue for or relinquishes the claim in a suit with knowledge that he
has a right to sue for that relief. It will not be correct to say that
while the decision of the Judicial Committee in Lall case1 was holding the
field the plaintiff could be said to know that he was yet entitled to make
a claim for arrears of salary. On the contrary, it will be correct to say
that he knew that he was not entitled to make such a claim. If at the date
of the former suit the plaintiff is not aware of the right on which he
insists in the latter suit the plaintiff cannot be said to be disentitled
to the relief in the latter suit. The reason is that at the date of the
former suit the plaintiff is not aware of the right on which he insists in
the subsequent suit. A right which a litigant does not know that he
possesses or a right which is not in existence at the time of the first
suit can hardly be regarded as a “portion of his claim” within the meaning
of Order 2 Rule 2 of the Code of Civil Procedure. See Amant Bibi v. Imdad
Husain, (1885) 15 Ind App 106 at pg.112 (PC). The crux of the matter is
presence or lack of awareness of the right at the time of first suit.
27. The appellant Madhya Pradesh is, therefore, not right in contending
that the plaintiff is barred by provisions contained in Order 2 Rule 2 of
the Code of Civil Procedure from asking for arrears of salary in the 1956
suit. The plaintiff could not have asked for arrears of salary under the
law as it then stood. The plaintiff did not know of or possess any such
right. The plaintiff, therefore, cannot be said to have omitted to sue for
any right.”
26. In the light of the principles discussed and the law laid down by the
Constitution Bench as also other decisions of this Court, we are of the
firm view that if the two suits and the relief claimed therein are based on
the same cause of action then only the subsequent suit will become barred
under Order 2, Rule 2 of the CPC. However, when the precise cause of
action upon which the previous suit for injunction was filed because of
imminent threat from the side of the defendant of dispossession from the
suit property then the subsequent suit for specific performance on the
strength and on the basis of the sale agreement cannot be held to be the
same cause of action. In the instant case, from the pleading of both the
parties in the suits, particularly the cause of action as alleged by the
plaintiff in the first suit for permanent injunction and the cause of
action alleged in the suit for specific performance, it is clear that they
are not the same and identical.
27. Besides the above, on reading of the plaint of the suit for
injunction filed by the plaintiff, there is nothing to show that the
plaintiff intentionally relinquished any portion of his claim for the
reason that the suit was for only injunction because of the threat from the
side of the defendant to dispossess him from the suit property. It was
only after the defendant in his suit for injunction disclosed the transfer
of the suit property by the Housing Board to the defendant and thereafter
denial by the defendant in response to the legal notice by the plaintiff,
the cause of action arose for filing the suit for specific performance.
29. Mr. R. Balasubramanian, learned senior counsel appearing for the
respondents put reliance on the decision of this Court in the case of
Virgo Industries (Eng.) Private Limited (supra). After going through the
decision given in the said case, we are of the view that the facts of
that case were different from the facts of the instant case. In the case
of Virgo Industries (supra) two sale agreements were executed by the
defendant in favour of the plaintiff in respect of the two plots.
In the suit filed by the plaintiff for injunction it was pleaded that the
defendant is attempting to frustrate the agreement on the pretext that
restriction to transfer of land may be issued by the Excise Department on
account of pending revenue demand. Further, the defendant was trying to
frustrate the agreement by alienating and transferring the suit property to
third parties. On these facts, the Court observed :-
“5. While the matter was so situated the defendant in both the suits i.e.
the present petitioner, moved the Madras High Court by filing two separate
applications under Article 227 of the Constitution to strike off the
plaints in OSs Nos. 202 and 203 of 2007 on the ground that the provisions
contained in Order 2 Rule 2 of the Civil Procedure Code, 1908 (for short
“CPC”) is a bar to the maintainability of both the suits. Before the High
Court the defendant had contended that the cause of action for both sets of
suits was the same, namely, the refusal or reluctance of the defendant to
execute the sale deeds in terms of the agreements dated 27-7-2005.
Therefore, at the time of filing of the first set of suits i.e. CSs Nos.
831 and 833 of 2005, it was open for the plaintiff to claim the relief of
specific performance. The plaintiff did not seek the said relief nor was
leave granted by the Madras High Court. In such circumstances, according to
the defendant-petitioner, the suits filed by the plaintiff for specific
performance i.e. OSs Nos. 202 and 203 were barred under the provisions of
Order 2 Rule 2(3) CPC.
xxxxxxxx
13. A reading of the plaints filed in CSs Nos. 831 and 833 of 2005 show
clear averments to the effect that after execution of the agreements of
sale dated 27-7-2005 the plaintiff received a letter dated 1-8-2005 from
the defendant conveying the information that the Central Excise Department
was contemplating issuance of a notice restraining alienation of the
property. The advance amounts paid by the plaintiff to the defendant by
cheques were also returned. According to the plaintiff it was surprised by
the aforesaid stand of the defendant who had earlier represented that it
had clear and marketable title to the property. In Para 5 of the plaint, it
is stated that the encumbrance certificate dated 22-8-2005 made available
to the plaintiff did not inspire [pic]confidence of the plaintiff as the
same contained an entry dated 1-10-2004. The plaintiff, therefore,
seriously doubted the claim made by the defendant regarding the proceedings
initiated by the Central Excise Department. In the aforesaid paragraph of
the plaint it was averred by the plaintiff that the defendant is “finding
an excuse to cancel the sale agreement and sell the property to some other
third party”. In the aforesaid paragraph of the plaint, it was further
stated that “in this background, the plaintiff submits that the defendant
is attempting to frustrate the agreement entered into between the parties”.
14. The averments made by the plaintiff in CSs Nos. 831 and 833 of 2005,
particularly the pleadings extracted above, leave no room for doubt that on
the dates when CSs Nos. 831 and 833 of 2005 were instituted, namely, 28-8-
2005 and 9-9-2005, the plaintiff itself had claimed that facts and events
have occurred which entitled it to contend that the defendant had no
intention to honour the agreements dated 27-7-2005. In the aforesaid
situation it was open for the plaintiff to incorporate the relief of
specific performance along with the relief of permanent injunction that
formed the subject-matter of the above two suits. The foundation for the
relief of permanent injunction claimed in the two suits furnished a
complete cause of action to the plaintiff in CSs Nos. 831 and 833 to also
sue for the relief of specific performance. Yet, the said relief was
omitted and no leave in this regard was obtained or granted by the Court.”
29. In the instant case, as discussed above, suit for injunction was
filed since there was threat given from the side of the defendant to
dispossess him from the suit property. The plaintiff did not allege that
the defendant is threatening to alienate or transfer the property to a
third party in order to frustrate the agreement.
30. It is well settled that the ratio of any decision must be understood
in the background of the facts of that case. The following words of Lord
Denning in the matter of applying precedence have been locus classicus.
“Each case depends on its own facts and a close similarity between one
case and another is not enough because even a single significant detail may
alter the entire aspect, in deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo) by matching the colour of
one case against the colour of another. To decide therefore, on which side
of the line a case falls, the broad resemblance to another case is not at
all decisive.”
31. In the case of Bharat Petroleum Corpn. Ltd. and Another vs. N.R.
Vairamani and another, (2004) 8 SCC 579 at page 584, this Court observed :-
“9. Courts should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the decision
on which reliance is placed. Observations of courts are neither to be read
as Euclid’s theorems nor as provisions of a statute and that too taken out
of their context. These observations must be read in the context in which
they appear [pic]to have been stated. Judgments of courts are not to be
construed as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton 1951 AC 737 (AC at p. 761) Lord
MacDermott observed: (All ER p. 14 C-D)
“The matter cannot, of course, be settled merely by treating the ipsissima
verba of Willes, J., as though they were part of an Act of Parliament and
applying the rules of interpretation appropriate thereto. This is not to
detract from the great weight to be given to the language actually used by
that most distinguished judge,…”
32. Having regard to the facts and evidence of the instant case, we are
of the view that the issue decided in Virgo Industries (supra) is not
applicable in this case.
33. Further, taking into consideration all these facts, we are of the
considered opinion that the conclusion arrived at by the High Court that
the suit is barred under Order 2 Rule 2 CPC cannot be sustained in law.
34. As noticed above, the High Court, although formulated various points
for consideration and decision, as quoted hereinabove, but has not
considered other points in its right perspective. The High Court, being
the final court of facts in a first appeal, is required to decide all the
points formulated by it. In view of the same, the matter needs to be
remanded back to the High Court to consider and decide other points
formulated by it.
35. For the aforesaid reason, Civil Appeal Nos.4215-4216 of 2007 are
allowed in part and the decision arrived at by the High Court against point
no.4 holding that the suit was barred under Order 2 Rule 2 of the CPC is
set aside. The matter is remanded back to the High Court to decide the
appeals by recording its finding on other points formulated by it.
Consequently, other connected appeals, filed by the defendant against the
plaintiff, stand disposed of with a direction to maintain status quo with
regard to possession of the suit property till further orders of the High
Court in this regard.
…………………………….J.
[ M.Y. Eqbal ]
.…………………………….J
[Shiva Kirti Singh]
New Delhi
October 29, 2014
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