Bombay High Court
Manohar S/O Natthuji Dhawad ... vs Ramesh S/O Janrao Patil (Phiske) ... on 11 March, 2016
Bench: A.B. Chaudhari
sa.210.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 210/2013
1) Manohar s/o Natthuji Dhawad
(since deceased)
2) Smt. Karuna wd/o Manohar Dhawad
(since deceased )
3) Smt.Anuradha w/o Hemantrao Sabane
Aged about 50 years, R/o Ramnagar
Wardha, Tah.&Dist. Wardha.
4) Rajeev s/o Manohar Dhawad
Aged about 48 years, R/o Near Railway
Station, Katol, Tah.Katol
Dist. Nagpur.
5) Smt. Sunita w/o Dr. Suhas Borghate
Aged about 40 years, R/o EAS Extn.
Nehru Nagar, Bhilai.
6) Smt.Jyoti @ Kalyani w/o Kiran Sable
Aged about 38 years, R/o Nagarwala Complex
Dhantoli, Nagpur. ... APPELLANTs
v e r s u s
1) Ramesh s/o Janrao Patil (Phiske)
Aged about 35 years, Cultivator
2) Baburao Baliram Kathawate
Died, Through LRs:
2(a) Smt. Prabhavati wd/o Baburao Kathwate
Aged 73 years, occu: Housewife (wife)
2(b) Vijay s/o Baburao Kathwate (son)
Aged 52 years, occu: private service.
sa.210.13
2(c) Ajay s/o Baburao Kathwate (son)
Aged 42 years, occu: service
2(d) Upendra s/o Baburao Kathwate (son)
Aged 40 years, occu: service
All R/o Plot No. 104/5A 3,
Pensionnagar
Beside Alliance Church
Nagpur, Tah.& Dist. Nagpur. .... RESPONDENTS
...........................................................................................................................
Shri A.M.Deshpande with Shri Pravin Agrawal,
Advocates for the appellants
Shri Prashant Mukund for Respondent no.1 ;
{Advocate K K Pillai Advocate
(absent)
}
None for respondent nos.2 (a) to 2 (d) though served.
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 11th March, 2016
ORAL JUDGMENT:
1. Being aggrieved by the judgment and decree 16th March
2013 passed by the learned District Judge-9 Nagpur in Regular Civil
Appeal No. 589/2012, setting aside the judgment decree dated 4.9.2004
passed by the learned Joint Civil Judge, Senior Division, Nagpur in
Special Civil Suit No. 707/1995, the present Appeal has been filed by
the appellants /original defendants in this Court.
sa.210.13
2. At the time of admission, this Court had observed thus in
last paragraph of its order dated 27th November, 2013:-
"Considering the fact that the dispute between the
parties is going on since the year 1992, it would be
appropriate that final hearing of the Appeal is
expedited and it is accordingly expedited."
3.
On the basis of the said order, an early hearing Application
was filed. Accordingly, this Court had grated early hearing of the
Appeal by order dated 7th August, 2014. When the Appeal was called
out for final hearing on 13th August 2014, Shri K.K. Pillai Advocate for
respondent no.1 (wrongly written as respondent no.2) sought an
adjournment which was granted by this Court. Thereafter on 24.2.2016,
Civil Application, being CA(s) No. 162/2016 for early hearing pursuant
to the order dated 27th November, 2013 was moved and the Appeal
was fixed for final hearing on 3rd March 2016 in the presence of
Advocates for the parties. On 3rd March,2016, however, Mr K.K. Pillai,
Adv. for respondent no.1 sought adjournment which was granted as per
his convenience to 7th March, 2016 on which date, hearing of the Appeal
commenced as per its serial number on the Board. But Advocate M.P.
sa.210.13
Suryawanshi h/for Mr. K.K. Pillai appeared in the midst and again
mentioned for adjournment and that was granted to 8th March 2016.
On 8th March 2016, the respondent no.1-Ramesh Patil (Phiske)
appeared in person and filed an Application. This Court heard him and
made a detailed order which is quoted herein-below :
" This is a part heard Second Appeal posted today for further
hearing, particularly since Advocate M.P. Suryawanshi h/f Mr. K.K.Pillai,
Advocate for respondent no.1 requested accordingly, after the arguments
for the counsel for the appellants were heard on 7.3.2016. Today, Shri
Ramesh Janrao Patil (Phiske)/respondent no.1, has appeared in-person.
There is no appearance on behalf of respondent no.2 or his legal heirs.
This Appeal was heard on admission on 27 th November, 2013 and
was admitted by this Court (S.B. Shukre,J.) on certain questions, with
interim orders therein. Lastly, in the said order this Court has observed
that considering the fact that the dispute between the parties is going on
since the year, 1992 it would be appropriate that final hearing of the appeal
is expedited and it is accordingly expedited. Thereafter, on 7th August,
2014 this Court allowed the early hearing Application as per the aforesaid
observations made by the coordinate Bench and posted the Second Appeal
for hearing on 12th August, 2014, as per the consent of the parties.
However on 13th August,2014, Mr. K K Pillai learned Advocate appearing
on behalf of respondent no.1 (wrongly written for respondent no.2)
requested for adjournment, which was granted for a week. Thereafter on
24th February 2016, Civil Application No.162/2016 for early hearing was
allowed and the Appeal was posted for final hearing on 3rd March 2016.
On 3rd March 2016 Mr. K. K. Pillai, Advocate appearing for respondent no.
1 requested for time till 7th March 2016 on the ground that he was unwell.
This Court accepted his request. As per his request, the Second Appeal
sa.210.13
was kept for hearing on 7th March, 2016. On 7th August 2016, now, it
appears from the letter filed by respondent no.1 that Shri K K Pillai sent a
registered letter dated 4th March 2016 to respondent no.1-Ramesh Patil
(Phiske), stating therein that on his request the High Court adjourned the
Second Appeal to 7th March 2016 and he does not see any possibility of
his recovering from ill-health by 7th March 2016 and, therefore, to take
away the papers from him. Except his statement, there is no supporting
document filed by Ramesh (respondent no.1). Be that as it may, the fact
remains that at the request of Mr K.K.Pillai the Appeal was posted for
hearing on 7th March 2016. On 7th March 2016 in the midst of hearing,
Advocate Suryanwashi came and mentioned that Advocate K.K. Pillai could
not be able to attend on 7th March 2016. However since the arguments had
already started before arrival of Mr.Suryawanshi, Advocate, the arguments
of the counsel for the appellants, were completed and the case was
posted for hearing on the next date, in the presence of Mr Suryawanshi, on
8th March 2016 i.e. the next day. Now today, Ramesh/respondent no.1 has
tendered an application for a suitable time to take services of an Advocate
for defending his case. Learned counsel for respondent no.2 is absent
though served. Heard Shri Ramesh Patil (Phiske) in person, who stated
that he wants to engage an Advocate. He has stated in paragraph 2 of his
Application that he would engage a lawyer within one week. Since this
Appeal is part heard inasmuch as the arguments of the Advocate for the
appellants were almost completed yesterday and the appeal was kept
today for hearing as per the convenience of Shri K K Pillai, for respondent
no.1/Ramesh, he is still asking for time to engage another Advocate. In
my opinion, there should not be any difficulty in granting time for hearing
but however since the matter is appeal is part-heard and was almost
completely heard yesterday, it cannot be adjourned for a longer time. I
therefore place this Appeal as part heard on 11.3.2016, to enable
respondent no.1-Ramesh Patil to engage an Advocate. It is made clear that
in no case, even in the event of engagement of any Advocate by respondent
no.1-Ramesh Patil, this part heard Appeal would be adjourned on
11.3.2016.
sa.210.13
Hence place the Second Appeal for final hearing, as part heard, on
Friday, the 11th March 2016 at Sr.No.1."
In the above order, thus, three days' time was granted till
today by making certain observations. Today, on 11th March 2016,
Prashant B.Mukund, (nephew of Mr. Ramesh Patil (Phiske)/respondent
No.1 appeared and has invited my attention to Civil Application No.
246/2016, stating that respondent no.1 is a diabetic and is suffering
from high blood pressure, along with the Doctor's certificate. In the
light of the above orders and the last order dated 8th March 2016 giving
till 11th March 2016 and particularly when the respondent no.1 was
told that it was not possible to grant longer adjournment as the Appeal
was part-heard and time was granted from time to time, without making
any further comments, hearing of the part-heard Appeal was taken and
completed. Thus, now, I proceed to dictate the judgment in the presence
of Advocates for appellant and Mr.Prashant B.Mukund in the open Court.
FACTS
4. The respondent/plaintiff No.1-Ramesh and Plaintiff No.2-
Baburao filed Special Civil suit No. 707/1995 in the Court of Civil
Judge, Senior Division, Nagpur, for specific performance of contract
dated 21.1.1991. It was averred in the Suit that the appellant/defendant
sa.210.13
Manohar had entered into an agreement on 21.1.1991 with Plaintiff
No.2-Baburao for sale of 5 acres of field out of survey No.86, area
9.01 acres; and Plaintiff No.2-Baburao paid Rs. 50,000/- as earnest
to appellant/defendant -Manohar out of total agreed consideration of
Rs. 8,75,000/- for five acres. The balance amount of Rs. 8,25,000/-
was to be paid as Rs. 2,00,000/- (Rs. 2,50,000/- in the agreement
Exh. 47 ) to be paid by 31.1.1992; Rs.3,25,000/- by 31.1.1993 and
Rs. 3,00,000/- by 30.1.1994. There was a mistake in writing Rs.
2,50,000/- since actually it was Rs. 2,00,000/- in the agreement
Exh. 47. There was an oral partnership between the Plaintiff No.1-
Ramesh and Plaintiff No.2-Baburao for purchase of the suit property;
but Plaintiff No.2-Baburao backed out and executed assignment of
the said agreement Exh. 47 in favour of Plaintiff No.1- Ramesh on
12.11.1991, orally reduced to writing on 3.2.1992 which was a public
notice of assignment and it was served by registered post
acknowledgment due on defendant-Manohar on 5.2.1992. That was
done in view of Clause (3) on page 3 of the agreement which stated
that the sale will be registered either in the name of Plaintiff No.2-
Baburao or the other name suggested by him. After assignment in
favour of plaintiff No.1-Ramesh, Plaintiff No.2-Baburao was still made
plaintiff, by way of abundant precaution and nothing more as
sa.210.13
assignment in favour of Ramesh took place orally on 12.11.1991.
5. Plaintiff No.1-Ramesh, the assignee, was and is still ready
and willing to perform his part of the contract by paying balance
consideration of Rs. 8,25,000/-. He stated that the defendant-Manohar,
however, turned dishonest and avoided receiving even the first payment
of Rs. 2,00,000/- which amount was tendered by him {Plaintiff No.1-
Ramesh on or about 20.1.1992 to defendant-Manohar). He then stated
that the plaintiffs were advised to file a suit i.e. Regular Civil Suit No.
501/1992 against the defendant-Manohar in which mandatory
injunction was sought asking the defendant-Manohar to comply with
the terms and conditions of the agreement dated 21.1.1991 by accepting
Rs.2,00,000/- and to issue prohibitory injunction against him from
dispossessing of the suit property. The Application (Exh. 5 ) for grant
of temporary injunction was filed and was granted, but injunction
order was reversed by the District Court in Appeal No. 302/ 1992 on
7.8.1993, with observation in paragraph 11 of the order that it was
open for the plaintiffs to file suit for specific performance and claim
appropriate reliefs against defendant-Manohar. The plaintiffs filed
Civil Revision Application no. 794/1994 before the High Court which
passed the order on 3.3.1995 accepting the request for withdrawal of
sa.210.13
the Revision Application to enable the plaintiffs to make appropriate
Application for withdrawal of the suit ( RCS No.501/1992), with liberty
to file proper suit in appropriate and competent Court and, thus,
dismissed the Revision as withdrawn. It is for this reason, the plaintiffs
were constrained to file the suit for specific performance amongst other
reliefs. The cause of action was stated to be on 19.8.1992 when
defendant-Manohar filed written statement in RCS No. 501/1992
stating cancellation of agreement by Plaintiff No.2- Baburao himself and
that it also arose on 30.1.1994 i.e. the last date of performance of the
agreement. It was also stated in paragraph 11 of the Suit that the
earlier RCS No. 501/1992 became infructuous and shall be withdrawn
unconditionally by the plaintiff under Order 23 Rule 1 CPC.
6. The appellant/defendant-Manohar appeared and filed
written statement and denied all the averments made in the plaint
adverse to the interest of the defendant. He contended that the time was
the essence of the contract. He also stated that the suit property as a
matter of fact owned by his father-Natthuji and even according to the
plaintiff was not partitioned and, therefore, his brother Dr. Prakash and
other brother Kailash, were also having shares therein and, in fact, Dr.
Prakash had filed RCS No. 343/ 1992 for partition {in the court of 4th
sa.210.13
Joint Civil Judge, Junior Division, Nagpur decided on compromise
decree (Exh. 66) dated 1.1.1996}. It was thus stated that defendant-
Manohar alone was not competent to enter into agreement. He denied
that he had given any consent or had any knowledge about the
assignment in favour of the Plaintiff No.1-Ramesh by Plaintiff No.2
Baburao and there was no privity of contract between the Plaintiff No.1
Ramesh and defendant, and as a matter of fact, there was cancellation
by both plaintiffs-Ramesh and Baburao by issuance of telegram on
22.1.1992 in which the refund of consideration of Rs. 50,000/- was
asked specifically. He therefore contended that in fact the plaintiffs
themselves have cancelled the contract or agreement and therefore, no
right to sue survived. There was a specific denial about any tendering of
amount of Rs.2,00,000/- by the plaintiff No.1-Ramesh to the defendant
or even an attempt to do so. With reference to RCS No.501/1992, it was
specifically stated that the present suit is barred by provisions of Order 2
Rule 2 CPC in view of the filing of RCS No. 501/1992 and the bundle of
facts constituting the same cause of action and that in CRA No.
794/1994 the High Court was not inclined to entertain the Revision
Application but the plaintiff withdrew the same. RCS No.501/1992 was
dismissed as infructuous without any liberty reserved in favour of the
plaintiffs to prosecute the instant Civil Suit and, on the contrary, the
sa.210.13
plaintiffs did not turn up or to even seek liberty in that suit though the
High Court allowed liberty to apply to the trial Court for leave to file a
fresh suit. Nothing was done. There was no readiness and willingness
on the part of the plaintiffs from their conduct nor was any money
available with them. In the specific pleadings, it was stated that the
plaintiffs themselves cancelled the agreement asking for refund of
money and accordingly money was withdrawn from Bank of India, via
Cheque No. 7642 dated 25.1.92 from the account of his wife-Karuna
but then the plaintiffs avoided to receive the amount though demanded
by telegram dated 22.1.1998 (Exh.68). The contract was unenforceable
because the suit land was notified for being acquired vide Notification
dated 16.7.1981 for Nagpur Improvement Trust and, at any rate, the suit
for partition filed by Dr. Prakash, the brother was pending in the
court at that time.
7. The parties thereafter filed several documents and also
went on trial after the issues were framed by the learned trial Judge.
Oral evidence was adduced so also the documentary evidence. The
learned trial Judge thereafter heard the parties and dismissed the Suit
filed by the respondents/plaintiffs, answering almost all the issues
against the respondents/plaintiffs. The respondents feeling aggrieved
sa.210.13
thereby filed an Appeal before the District Judge, Nagpur being Regular
Civil Appeal No.589/2012 and the Court by the impugned judgment
and decree dated 16th March, 2013 allowed the Appeal and decreed the
Suit was that dismissed. Hence this Second Appeal.
SUBMISSIONS:
8. In support of the Appeal, learned counsel for the appellants
invited my attention to the order of this Court dated 27th November,
2013, in which in all three substantial questions of law have been
framed. He then submitted that two more questions may be framed
regarding readiness and willingness and the frustration of the contract
due to acquisition by Nagpur Improvement Trust and the partition Suit
filed by brother of appellant Dr.Prakash against the defendant Manohar.
Shri Anand Deshpande, learned counsel for the appellants then
contended that the judgment of the trial Court is based on facts and
evidence marshalled thoroughly by the trial Judge, after marking the
demeanour of the witnesses and taking careful view of the entire
matter and facts, and evidence on record as well as the legal position.
According to him, for a measly sum of Rs. 50,000/- without making
any payment thereafter, out of the huge sum of Rs. 8,75,000/-, the
plaintiffs wanted to grab the valuable suit land of the defendant
Manohar and, therefore, the trial Judge refused to exercise discretion to
sa.210.13
award specific performance of contract on a paltry amount of Rs.
50,000/-. He then submitted that the agreement Exh.47 was never
made with plaintiff No.1 Ramesh, but was allegedly made with
Plaintiff No.2 Baburao and Baburao never had shown any seriousness
even at the beginning i.e. at the time of payment of Rs.50,000/- or at
any point thereafter, to obtain the contract unto himself. The defendant
Manohar had never agreed to sell the property to plaintiff No.1 Ramesh
which is the admitted position; but on the basis of the alleged
assignment by plaintiff-Baburao to plaintiff no.1 Ramesh without any
consent or knowledge or advance knowledge of Manohar, the
defendant, it was claimed that the plaintiff No.1-Ramesh, being the
alleged assignee, was entitled to claim specific performance. Mr.Anand
Deshpande, learned Advocate then contended that this is wholly
impermissible in law and the assignment cannot be given such a absurd
meaning that plaintiff No.2 Baburao could have assigned the agreement
without consent or knowledge of the defendant or without putting to
defendant the choice of the person to be the assignee. It was,therefore,
contended that there was absolutely no privity of contract between the
Plaintiff No.1-Ramesh and defendant-Manohar as the agreement Exh.
47 contains signature only of Baburao; and plaintiff No.1 Ramesh
was nowhere in picture. Such a suit by plaintiff No.1 Ramesh with
sa.210.13
whom defendant -Manohar had no agreement at all, could not even be
filed. Such agreement cannot be enforced in the court of law. Learned
counsel for the appellants then contended that the suit was clearly hit
by the provisions of O. 2 R.2, CPC, and the law in respect of which has
now been very well settled by the highest court of land. He then
submitted that the plaintiffs never obtained any leave of the Court to
file fresh suit for specific performance of contract though such a
statement was made before the High Court in the Revision Application
and the High Court accordingly permitted obtaining of leave.
Surprisingly enough, according to him, when the earlier Suit i.e. RCS
No. 501/1992 was called out for hearing on Application Exh. 28
for dismissal thereof, the plaintiffs did not apply for withdrawal with
liberty to file another Suit and the Court held that the suit was
infructuous and did not grant any leave or liberty. Therefore,
subsequent suit was clearly barred by O.2 R.2, CPC. He then submitted
that the suit in question was barred by law of limitation under Art. 54 of
the Limitation Act. The learned lower Appellate Court committed a
grave error in law in sticking to date namely 30.1.1994 despite
cancellation Exh.68 made or the refusal sensed by the plaintiffs with full
consciousness ignoring the limitation started running from the point of
cancellation/refusal. According to him, the learned lower Appellate
sa.210.13
Court also made a mistake in law in assuming that there should be
refusal only in writing from the defendant and the Courts do not have
power to find out whether there is a refusal or not, from the evidence on
record. He submitted that the cancellation of the agreement was made
by the plaintiffs themselves on 22.2.1992 under telegram-Exh. 68 and
further the averments in RCS No.501/1992 themselves indicated that
the plaintiffs fully understood clear refusal. Not only that, according to
Mr Deshpande, the lower Appellate Court assumed that the suit for
specific performance cannot be filed before the last date mentioned in
the agreement despite cancellation/refusal at earlier point of time. The
learned counsel for the appellants then contended that there was
absolutely no readiness and willingness on the part of the plaintiffs to
perform part of the contract inasmuch as no evidence of availability of
money of Rs. 2 lakhs was adduced. There was also a inconsistency
whether the money was actually tendered or tried to be tendered. He
then contended that there was a suit filed by Dr. Prakash in respect of
the very suit property and for partition separate possession that was
pending in the Court and the finding recorded by the lower Appellate
Court that suit filed by Dr. Prakash was fraudulent to deny the claim of
the plaintiffs/respondents is nothing but a figment of imagination for
which there were pleadings, issues nor any evidence on record. He then
sa.210.13
cited the following decisions for consideration :-
1) Virgo Industries (Eng) Pvt.ltd. vs. Venturetech Solutions Pvt.ltd.
2013(2) Mh.L.J. 535
2) Deva Ram and another vs. Ishwar Chand and another
1996 (1) Civil L.J. 343;
3) Dayaram Raghobaji Belsare vs. Vishrantibai George Lavet
1990 Mh.L.J. 227
4)
SNP Shipping Services Pvt.ltd.& ors. vs.World Tanker Carrier
Corpn : 2000 (2) Mh.L.J. 570.
5) Kamal Kishore Saboo vs. Nawabzada Hasan Khan :
2001 (4) Civil LJ 177;
6) Ashok Aggarwal vs. Bhjagwan Das Arora
2002 (1) Civil LJ 780.
7) H M Kumaraswamy vs. T.P.R. Rudraradhya
AIR 1966 Mysore 215.
8) Protap Chandra Koyal vs. Kalicharan
AIR 1963 Calcutta 468.
As stated earlier, the respondents remained absent despite
repeated adjournments granted.
9. This Court had at the time of admission on 27th November,
2013 framed three substantial questions of law, as under :
sa.210.13
"1) Whether the first appellate Court was right and
justified in holding that time limit to reckon the limitation to
file the suit will start from 30.1.1994 ?
2) Whether the first appellate Court was justified in
interpreting the document at Exh.47 i.e. an agreement of
sale dated 21.01.1991, that it showed that 30/01/1994 was
the date on which the sale deed was to be executed, when
such term is not embodied in the said document?
3) Whether the first appellate Court was justified in
overruling the objection of the defendant and finding of the
trial court that the present suit is barred by the provisions of
Order II Rule 2 of the Code of Civil Procedure?".
I would re-frame those very questions and, in addition, two
more questions, as under :-
"(1) Whether the first Appellate Court committed an
error in law in computing the limitation within the
meaning of Art. 54 of the Limitation Act, from 30.1.1994
in the wake of detailed averments in paragraphs 3,4,5,6
in the plaint (Exh.71) in RCS No. 501/1992 ( dismissed
as infructuous on 29.11.1995 by order below Exh. 28),
sa.210.13
about the conscious understanding of denial to perform
the contract on the own showing of the plaintiffs
themselves with outer limit, namely, 5.2.1992 when
defendant allegedly received public notice dated
3.2.1992 about assignment and alleged failed attempt to
make payment of Rs. 2,00,000/- on 30.3.1992 as the
limitation of three years would in any case end on
4.2.1995, as against the suit that was filed on 10.7.1995?
Whether the first Appellate Court committed
serious error in interpreting that document Exh. 47
agreement of sale dated 21.1.1991, would partake the
character of extending limitation for being computed
from 30.1.1994 in the wake of limitation already
having commenced from 5.2.1992 and also under Exh.
68 cancellation telegram by both plaintiffs dated
22.1.1992 ?
(3) Whether the first Appellate Court committed a
serious error in holding that the suit in question was not
barred by the provisions of Order 2 Rule 2 CPC in the
wake of absence of leave, liberty, and the same cause of
action on the bundle of same facts founded on Exh.47-
agreement and not at all materially different and in the
wake of non-use of the liberty to apply to the trial Court
for leave to file appropriate suit granted by the High
Court on 3.3.1995 in CRA No. 794/1994?
sa.210.13
(4) Whether the learned first Appellate Court
committed an error in hastily holding that the plaintiffs
were ready and willing to perform their part of the
contract when absolutely no evidence was brought on
record that the plaintiff No.1-Ramesh had with him even
for the first payment ready huge sum of Rs. 2 lakhs
drawn from any known source to the satisfaction of the
Court and in the light of the cancellation (Exh. 68) by
both the plaintiffs and in the absence of any agreement
with plaintiff no.1 Ramesh, much less with any legal or
valid assignment?
(5) Whether the lower Appellate Court committed
serious error in reversing the finding of fact recorded by
the trial Judge about the acquisition of the suit land by
Nagpur Improvement Trust and the partition suit filed
by Dr. Prakash, being RCS No.343/1992 in respect of the
very suit property rendering the contract under
frustration ?
CONSIDERATION:
10. Heard learned counsel for the appellants. Seen the entire
evidence - oral as well as documentary. The trial Judge had framed the
following issues in the suit:
sa.210.13
ISSUES FINDINGS
1. Do plaintiffs prove that the father of plaintiff no. In the
1 and defendant jointly purchased field Survey affirmative
nos. 79 and 86 on 31.07.1952?
2. Do plaintiffs prove that defendant was allotted In the
field No.86 in partition dated 18.07.1966? affirmative
3. Do plaintiffs prove an agreement dated In the
21.01.1991 for total price Rs. 8,75,000 as affirmative
alleged?
4. Do plaintiffs prove that plaintiff no.2 paid Rs. In the
50,000/- as an earnest amount was to be paid affirmative
on 30/01/1992, 30/01/1993 and 30/01/1994
as alleged?
5. Do plaintiffs prove that defendant committed In the negative.
breach of contract?
6. Do plaintiffs prove his willingness to perform In the negative.
part of the contract?
7. Are plaintiffs entitled for decree sought ? In the negative
8. Whether defendant proved that suit is not In the
tenable and deserves to be dismissed as alleged? affirmative.
9. Who is the owner of field Survey no.86/2? Defendant is the
owner of Field
Survey No. 86/2
10. Does defendant prove that plaintiff cancelled In the
an agreement dated 21/01/1991? affirmative.
sa.210.13
11. Does defendant prove that plaintiffs failed to In the
perform the contract as alleged? affirmative.
12. Is the suit time barred? In the
affirmative
13. Is the suit barred by provisions of Order 2, Rule In the
2 of CPC ? affiramtive.
14. What order See the operative
order herein.
ADDITIONAL ISSUE FINDINGS
5A Does defendants prove that the agreement dated In the
21.01.1991, stands frustrated and became affirmative.
impossible to perform the part of contract
because of acquisition of some portion of the
suit land by the state, by virtue of notification
dated 16/08/1994?
The lower Appellate Court framed the following points for
determination in the Appeal:
POINTS FINDINGS
i. Whether plaintiff proved that he was ready In affirmative
and willing to perform his part under contract?
ii. Whether suit is barred by limitation? In negative
iii Whether suit is barred by provisions of Order2 In affirmative
Rule 2 of Code of Civil Procedure?
sa.210.13
iv. Whether defendant is sole owner of suit In affirmative
property?
v. Whether agreement dated 21.01.1991 get In negative
frustrated by acquisition of the land?
vi. Whether plaintiff is entitled for specific In affirmative.
performance?
Vii What order and Reliefs ? Appeal allowed
as per final
ig order.
CONSIDERATION:
11. The story of the case begins with the agreement Exh. 47
dated 21.1.1991 and it is necessary to note that Exh. 47 consists of
three pages. Page No.1 is on Stamp of Rs.10/- No. 12100 dated
19.1.1991; Page No.2 is on Stamp of Rs.10/- No. 28319 dated
11.01.1991 in the name of plaintiff No.2 -Baburao only. There is no
signature of plaintiff No.1 Ramesh on this agreement anywhere and it
is only Baburao (Plaintiff No.2) whose signature appears on page no.3.
It is strange to note that the plaintiffs examined only plaintiff No.1-
Ramesh and no other witness to prove the happenings in regard to Exh.
47 as Ramesh was a rank stranger to Exh.47 dated 21.1.1991.Even
Plaintiff no.2-Baburao was not examined.
sa.210.13
It is an admitted fact that the agreement (Exh.47) was
not at all with the plaintiff No.1-Ramesh, but was only with Plaintiff No.
2-Baburao. However, reliance was placed on the alleged assignment
appearing on page 3 of the agreement. After payment of Rs. 50,000/- on
the date of agreement i.e. 21.1.1991 to defendant-Manohar, plaintiff
No.1-Ramesh stated that Plaintiff No.2-Baburao did not want to honour
the agreement due to his weak financial position and inability to raise
the huge money in the sum of Rs. 8.25 lakhs and that, therefore, due to
their oral partnership, plaintiff No.2-Baburao orally on 12.11.1991
assigned the agreement in favour of Plaintiff No.1-Ramesh which was
reduced to writing on 3.2.1992 (Exh.48) and sent to defendant by
registered post acknowledgment due which he received on 5.2.1992
(Exh.49). The plaintiff No.1-Ramesh, then, alleged that he issued a
telegraphic notice Exh.53 to the defendant infomring him that he was
avoiding to accept Rs. 2Lakhs as per the agreement (Exh. 47) since
13th January, 1992. Exh. 53 telegram reads as under :
"Dated : 31.1.1992 :
You are avoiding to accept the amount Rs. 2 lakhs
against agreement 21.1.1991. Avoiding since 13th
sa.210.13
January,1992. Held responsible for losses and legal
activities.
Kathawate and others
Sender: R.J. Patil
(Plaintiff No.1)"
As stated earlier, Exh. 48-assignment shows that on
12.11.1991, plaintiff No.2-Baburao had orally made assignment in
favour of plaintiff No.1-Ramesh and, therefore, plaintiff No.2-Baburao
had moved away from the transaction, but the telegram-(Exh. 53)
shows that both had alleged that from 13.1.1992 defendant-Manohar
was avoiding to accept the amount of Rs. 2 lakhs. Thus, at least on the
date of Exh. 53 i.e. 31.1.1992, both had become aware that the
defendant-Manohar was in no mood to go ahead with the contract. It is
pertinent to note at any rate that the question of accepting money,
much less Rs. 2 lakhs, from plaintiff No.1-Ramesh from 13.1.1992
onwards did not arise because the alleged assignment dated 3.2.1992-
(Exh.48) was made known to defendant- Manohar for the first time on
5.2.1992 and, therefore, it was idle to contend that defendant-
Manohar was not willing to accept Rs. 2 lakhs from Plaintiff No.1-
Ramesh from 13.1.1992 till the date of telegram dated 31.1.1992 for
want of any privity of contract or knowledge of assignment. Be that
as it may, the plaintiffs-Ramesh and Baburao lodged RCS No. 501/1992
sa.210.13
(Exh. 57) in the Court of Civil Judge, Sr.Dn. Nagpur, in February,1992.
In that suit, they averred thus, in paragraphs 3,4,5 and 6:-
"3. That, due to some unavoidable circumstances the
plaintiff no.2 transferred the agreement in the name of
plaintiff no.1 on 12.11.1991 and given all the rights vested in
the plaintiff no.2 to the plaintiff no.1. As per the agreement
the plaintiff no.1 is ready to purchase the 5 acres land out of
total land @ Rs.1,75,000/- per acre. The plaintiff no.2 had
received all the amount invested by him in the original
agreement. Therefore, he has no interest in further transaction
and therefore he is not claiming any relief as he is joined as a
proforma plaintiff to prove the averments made in the plaint.
The plaintiff no.2 informed the defendant regarding the
transfer of agreement in the name of plaintiff no.1 vide notice
dated 3.2.91. The plaintiff no.2 also issued two telegraphic
notice to the defendant. The plaintiff no.1 also issued one
telegraphic notice stating therein and calling upon the
defendant to accept Rs. 2,00,000/- against the agreement
dated 21.1.1991. The plaintiff no.1 was/is ready to pay the
amount of Rs. 2,00,000/- as per the agreement dated
21.1.1991, but it is the defendant who is avoiding to accept
the amount as per the agreement. The plaintiff No.1 is still
ready to perform his part of contract, but the defendant
had/has trying to avoid his responsibility.
sa.210.13
4. That, it is reliably learnt that the defendant is
trying to transfer the said suit property to another person by
way of sale or mortgage even though the agreement to sell
dated 21.1.92 is valid up to 30.1.1994. Hence it is necessary
in the interest of justice to restrain the defendant from
transferring the suit property in any manner whatsoever to
anybody except the plaintiff no.1. It is further necessary to
restrain the defendant from interfering with the lawful
possession of the plaintiff no.1 on the suit property. It is
further necessary to direct the defendant to comply the
agreement dated 21.1.1991 and to accept the amount of
Rs.2,00,000/- as per the clause of agreement.
5. That, the plaintiff no.1 have approached the
defendant on number of occasion so as to complete all
necessary formalities to expedite the matter so as to complete
the terms and conditions of the agreement. The plaintiff no.1
is always ready and wiling to perform his part of contract in
getting the sale deed executed in their favour and he is trying
his level best to do so to complete the transaction as per
agreement. But the defendant is avoiding on one or the other
pretext.
6. That, under such circumstances and from the
allegations made herein-above, it is very much clear that the
defendant has no mind to cooperate with the plaintiffs to
execute the sale deed as per terms and conditions of an
sa.210.13
agreement dated 21.1.1991. The defendant is avoiding. The
defendant is avoiding to make the attempt in extending his
cooperation and by doing so, there is every possibility that,
he may sale the property to some other persons for higher
consideration. If it is done the plaintiff no.1 shall have to
suffer great irreparable loss. The plaintiff have tried their
level best to settle the matter amicably, but to no effect and as
such is/are constrained to file the instant suit."
They stated the cause of action in Paragraph no.8
thus:-
"8. That, the cause of action for filing the suit
arose on 21.1.91 when plaintiff no.2 and defendant
entered into an agreement of sale, thereafter plaintiff no.2
transferred the agreement of his, in favour of plaintiff No.1.
Then plaintiff issued the notice dated 3.2.92 and telegraphic
notice to the defendant. The cause of action is continuous
one within the jurisdiction of this Hon'ble Court and as such
this Hon'ble Court has jurisdiction to try the suit."
They then made prayers as under :
i) to grant mandatory injunction against the
defendant directing him to comply as per terms and
conditions of an agreement dated 21.1.1992 by
sa.210.13
accepting Rs.2,00,000/-;
ii) to issue prohibitory order against the defendant
restraining him from disposing of the suit property till
the decision of suit;
iii) any other relief which this Hon'ble Court deems
fit under the circumstances of the case be granted in
favour of the plaintiffs;
iv) Cost of the suit be saddled on the defendant."
12.
From the perusal of the averments in the plaint and the
prayers, it is explicitly clear that the defendant-Manohar was avoiding to
accept Rs. 2 lakhs and was avoiding his responsibility; and not only
that, the defendant-Manohar was trying to transfer the suit property to
other person/s and that is why the plaintiffs understood that it was
necessary to restrain the defendant from doing so, as vide paragraph
6, defendant-Manohar had no mind to cooperate with the plaintiffs to
execute the sale-deed and there was every possibility that he would sell
the property to some other person/s for a higher consideration, in which
case they would suffer losses and that the cause of action from all the
above events arose on 3.2.1992 and telegraphic notice Exh.53 dated
31.1.1992. It is in the background of the pleadings that they sought
mandatory injunction to comply with the agreement-Exh. 47 and also
sa.210.13
injunction from disposing the suit property. These prayers and the
averments are clear enough that both the plaintiffs fully and
consciously understood that defendant-Manohar was in no mood to
honour the agreement-Exh. 47 and had blown refusal. Now, at this
stage, it is very important to note another telegram-Exh.68. Though
plaintiff No.1- Ramesh has denied of sending of such telegram, the
same has been duly proved and in the cross-examination instead of
denying, he states that he did not remember issuing such a telegram.
There is no reason to ignore the certified copy of this telegram Exh. 68
and, in fact, the same has been accepted by the Courts below as the
evidence. I also agree that Exh. 68 has been duly proved and will have
to be read in evidence. It is interesting to note that this telegram-Exh. 68
is dated 22.1.1992 addressed to defendant-Manohar (M. N. Dhawad)
and it is sent by Plaintiff No.1/ R.J.Patil, as sender. The telegram reads
thus :
"Return Rs. Fifty thousand within 24 hours, against the
agreement dated 21.1.1991. No interest bargain, as in
litigation. Held responsible losses.
Kathawate and others
Sender
R.J. Patil
(Plaintiff No.1)"
sa.210.13
The telegram, thus, clearly shows that Kathawate and
others obviously means Plaintiff No.1-Ramesh wanted back Rs. 50,000/-
that was paid against agreement dated 21.1.1991 (Exh. 47), meaning
thereby that both of them had decided to cancel the agreement Exh. 47.
It is thus, clear from the above evidence that the Plaintiffs in terms
understood that defendant-Manohar was refusing to honour the
agreement Exh. 47 and the plaintiffs wanted their Rs. 50,000/- back
from defendant-Manohar i.e. to have the agreement Exh. 47 recalled.
With these facts duly proved on record, there can be no manner of
doubt that the contract stood recalled or revoked or cancelled at the
hands of the plaintiffs due to overt acts of clear refusal by defendant-
Manohar as understood by the plaintiffs themselves and that is why they
went to the Court by means of R.C.S. No. 501/1992.
13. The lower Appellate Court has, however, completely
ignored above factual position, relied on last date 30.1.1994 in
Exh. 47- agreement and held that the contract subsisted till 31.1.1994
and held that the limitation would, therefore, consequently start from
30.1.1994. I think the lower Appellate Court clearly landed in serious
sa.210.13
error. It is interesting to note that similar were the facts in the case
decided by the Hon'ble Apex Court in Virgo Industries(Eng) Pvt.Ltd.
Vs. Venturetech Solutions Pvt.Ltd.:2013 (2) Mh.L.J.536) and I quote
from paragraph nos.3,4,13,14,15, as under :-
"3. The respondent in the two appeals, as the
plaintiff, instituted C.S No. 831 of 2005 and C.S. No. 833 of
2005 before the Madras High Court seeking a decree of
permanent injunction restraining the appellant (defendant)
from alienating, encumbering or dealing with the plaint
schedule properties to any other third party other than the
plaintiff. The aforesaid relief was claimed on the basis of two
agreements of sale entered into by the plaintiffs and the
defendant both on 27.7.2005 in respect of two different
parcels of immovable property consisting of land and
superstructures built on plot No. 65 (old No.43) and plot No.
66 (old No.42), Second Main Road, Ambattur Industrial
Estate, Chennai. In each of the aforesaid suits the plaintiff
had stated that under the agreements of sale different
amounts were paid to the defendants, yet, on the pretext
that restrictions on the alienation of the suit land were likely
to be issued by the Central Excise Department on account of
pending revenue demands, the defendants were attempting
to frustrate the agreements in question. In the suits filed by
the plaintiff it was also stated that as the period of six
months fixed for execution of the sale deeds under the
agreements in question was not yet over, the plaintiff is not
claiming specific performance of the agreements. The
sa.210.13
plaintiff, accordingly, sought leave of the court to omit to
claim the relief of specific performance with liberty to sue for
the said relief at a later point of time, if necessary. The two
suits in question, i.e., C.S. Nos. 831 and 833 of 2005 were
filed by the plaintiff on 28.8.2005 and 9.9.2005 respectively.
4. Thereafter on 29.5.2007, O.S. Nos. 202 and
203 were filed by the plaintiff in the Court of the District
Judge, Tiruvallur seeking a decree against the defendant for
execution and registration of the sale deeds in respect of the
same property and for delivery of possession thereof to the
plaintiff.
13. A reading of the plaints filed in C.S. 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
paragraph 5 of the plaint, it is stated that the encumbrance
certificate dated 22.8.2005 made available to the plaintiff
did not inspire confidence of the plaintiff as the same
contained an entry dated 1.10.2004.
14. The averments made by the plaintiff in C.S.
Nos. 831 and 833 of 2005, particularly the pleadings
sa.210.13
extracted above, leave no room for doubt that on the dates
when C.S. 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 alongwith the relief of permanent injunction
that formed the subject matter of 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 C.S. 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.
15. Furthermore, according to the plaintiff, which
fact is also stated in the plaints filed in C.S. Nos. 831 and
833, on the date when the aforesaid two suits were filed the
relief of specific performance was premature inasmuch as
the time for execution of the sale documents by the
defendant in terms of the agreements dated 27.7.2005 had
not elapsed. According to the plaintiff, it is only after the
expiry of the aforesaid period of time and upon failure of the
defendant to execute the sale deeds despite the legal notice
dated 24.2.2006 that the cause of action to claim the relief
of specific performance had accrued. The above stand of the
plaintiff found favour with the High Court. We disagree. A
suit claiming a relief to which the plaintiff may become
entitled at a subsequent point of time, though may be
termed as premature, yet, can not per se be dismissed to be
sa.210.13
presented on a future date. There is no universal rule to the
above effect inasmuch as "the question of a suit being
premature does not go to the root of the jurisdiction of the
Court" as held by this Court in Vithalbhai (P) Ltd. v. Union
Bank of India. In the aforesaid case this Court has taken the
view that whether a premature suit is required to be
entertained or not is a question of discretion and unless
"there is a mandatory bar created by a statute which disables
the plaintiff from filing the suit on or before a particular date
or the occurrence of a particular event", the Court must
weigh and balance the several competing factors that are
required to be considered including the question as to
whether any useful purpose would be served by dismissing
the suit as premature as the same would entitle the plaintiff
to file a fresh suit on a subsequent date. We may usefully add
in this connection that there is no provision in the Specific
Relief Act , 1963 requiring a plaintiff claiming the relief of
specific performance to wait for expiry of the due date for
performance of the agreement in a situation where the
defendant may have made his intentions clear by his overt
acts.
It is thus clear from the above decision and particularly
paragraph 15 above, that there is no question of waiting for expiry of
the due date of performance. In such a situation when the intentions of
the defendant are manifest with his overt acts, not to honour the
agreement, it was wholly illegal for the lower Appellate Court to hold
sa.210.13
that the limitation which started running vide Exh.53 dated 31.1.1992,
Exh.57 plaint in February,1992 and Exh.68 dated 22.1.1992 and from
the understanding of the plaintiffs themselves by filing the suit and
cancellation telegram-Exh. 68, the limitation would remain in
suspension till 30.1.1994 by virtue of Exh. 47. It is also pertinent to
note that in his evidence plaintiff No.1 Ramesh vide paragraph 3 of his
evidence stated that the time was not the essence of the suit agreement
dated 21.1.1991. Article 54 first part of the Limitation Act would not
apply if it is the case of the plaintiffs that the time was not essence of
the contract and then, in that event, second part would have
application that the performance is refused. However, the lower
Appellate Court landed in conundrum and gave the benefits to the
plaintiffs of both parts of Article 54 which is impermissible in law. That
apart, in the wake of cancellation by both the plaintiffs - Exh. 68, in the
first place, there was no cause of action for filing the suit for specific
performance and, at the most, there was cause of action for obtaining
refund of Rs. 50,000/- as claimed in Exh. 68. Further, the plaintiffs did
not seek any declaration qua Exh. 68 cancellation that it was false,
concocted or not binding on the plaintiffs for any reason, in order to
remove the obstacle Exh.68, they ought to have sought a declaration to
that effect in the suit. But then admittedly Exh. 68 was their own
sa.210.13
creation. In this connection, it would be appropriate to quote Paragraph
Nos. 32, 32.(1)(i) 36 and 37 of the Apex Court judgment in the case of
I.S.Sikandar vs. K. Subramani and others : 2014 (1) SCALE 1:-
32. After perusal of the impugned judgment of
the High Court and the questions of law framed by
Defendant 5 in this appeal, the following points would
arise for determination of this Court:
32.1(i) Whether the original suit filed by the
plaintiff seeking a decree for specific performance
against Defendants 1-4 in respect of the suit schedule
property without seeking the declaratory relief with
respect to termination of the agreement of sale vide
notice dated 28.3.1985, rescinding the contract, is
maintainable in law ?
36. Since the plaintiff did not perform his part
of contract within the extended period in the legal
notice referred to supra, the agreement of sale was
terminated as per notice dated 28.3.1985 and thus
there is termination of the agreement of sale between
the plaintiff and Defendants 1-4 w.e.f. 10.4.1985.
37. As could be seen from the prayer sought
for in the original suit, the plaintiff has not sought
sa.210.13
for declaratory relief to declare the termination of
agreement of sale as bad in law. In the absence of
such prayer by the plaintiff the original suit file dby
him before the trial court for grant of decree for
specific performance in respect of the suit schedule
property on the basis of agreement of sale and
consequential relief of decree for permanent
injunction is not maintainable in law."
The plaintiffs or the Court could not have ignored the Exh.
68 -cancellation of Exh. 47 agreement as it was a legal filibuster in the
way.
To sum up, the substantial questions Nos.(1) and (2) above,
therefore, will have to be answered in the affirmative together.
As to Question No.3 :
14. I have already quoted the relevant paragraphs from R.C.S.
No.501/1992 that was earlier filed by the plaintiffs in February 1992.
In that suit, an application for grant of temporary injunction filed by
the plaintiffs was allowed by the learned trial Judge which was
challenged in Misc. Civil Appeal before the District Judge, Nagpur who
had set aside the order below Exh.5 and rejected the injunction
sa.210.13
Application Exh.5. The plaintiffs went to the High Court against the
lower Appellate Court's judgment by filing Civil Revision Application
No. 794/1994. Since the High Court did not want to entertain the
Revision, it passed the order at the behest of the plaintiffs' counsel on
3.3.1995, as under :-
"Hon'ble R.M.Lodha, J. (as then he was):
After arguing this Revision Application for some
time, Mr.B.S.Wankhede submits that he has instructions
to withdraw this Revision Application and he would also
make an appropriate application for withdrawal of the
suit with liberty to file proper suit in appropriate and
competent court.
2. Consequent to the prayer Revision
Application is dismissed as withdrawn."
After the above order was passed, one would naturally
expect the plaintiffs to take steps to obtain liberty from the Court
where RCS No.501/1992 was filed. Instead, the defendant-Manohar
filed an Application (Exh.28) in that suit for dismissal of the suit.
Strangely enough, the plaintiffs did not at all appear in that suit and
did not file any application for grant of liberty to file fresh suit and
ultimately that Court allowed the Application Exh. 28 and observed thus
sa.210.13
in paragraph 3 and 4 of its order as under :
" 3. The say from other side was called. Despite
the opportunities no say as such was filed. The learned
counsel for the plaintiff Mr. Dhande is present when the
order was in dictation. He submitted that the plaintiff is
not responding the call to file the say on this application.
In the open court Mr.Dhande, Adv. submitted that special
civil suit is filed on the basis of agreement dated 21.1.91
However, he is unable to file any reply in absence of his
client. Hence, he submitted that the necessary order may
be passed.
4. At one hand, the defendant is submitting the
certain facts on the basis of record mentioning the
numbers of the proceedings. The plaintiff is not filing reply
to this application. It is pertinent to note that the plaintiff
is not responding even the call of Mr Dhande, Adv. I can
understand problem with Mr. Dhande Adv. The plaintiff
is keeping silence all the while he is not filing his reply. I
treat silence on the part of plaintiff as consent to this
application. The plaintiff had already knocked the door
of Civil Judge, Sn.Dn, by filing Special Civil Suit No.
707/1995. The cause of action in the instant case now
does not survive, suit itself become infructuous. With this
observation, I allowed this application and proceed to the
order below Exh.1."
sa.210.13
The Court thus dismissed that suit as infructuous. There
was no occasion to consider any application seeking liberty to file fresh
suit as the plaintiffs despite opportunities by that court chose not even
to bother to contact their Advocate or go to the Court and file
application. The entire bundle of facts and cause of action and the
prayers in RCS No.501/1992 and the present suit will carefully show
that the same facts and cause of action was pleaded but there was a
deliberate and clear omission to amend their RCS No.501/1992 for
specific performance of contract and/or to ask for liberty to file a fresh
suit in terms of the order dated 3.3.1995. Thus, the plaintiffs did not
use the liberty granted by the High Court as above. The learned lower
Appellate Court, however, held that the cause of action in the earlier suit
was different and therefore, O. II R.2 CPC would not apply. The
decision of the Apex Court in this context on the facts of the present
case is fully identical in the case of Virgo Industries ( supra). At this
stage, I quote paragraph nos.3,4,6,9,10,11,12,13,14,15 and 16:-
"3. ...The respondent in the two appeals, as the
plaintiff, instituted C.S No. 831 of 2005 and C.S. No. 833 of
2005 before the Madras High Court seeking a decree of
permanent injunction restraining the appellant (defendant)
from alienating, encumbering or dealing with the plaint
sa.210.13
schedule properties to any other third party other than the
plaintiff. The aforesaid relief was claimed on the basis of two
agreements of sale entered into by the plaintiffs and the
defendant both on 27.7.2005 in respect of two different
parcels of immovable property consisting of land and
superstructures built on plot No. 65 (old No.43) and plot No.
66 (old No.42), Second Main Road, Ambattur Industrial
Estate, Chennai.
4. Thereafter on 29.5.2007, O.S. Nos. 202 and 203 were
filed by the plaintiff in the Court of the District Judge,
Tiruvallur seeking a decree against the defendant for
execution and registration of the sale deeds in respect of the
same property and for delivery of possession thereof to the
plaintiff.
6. The High Court, on consideration of the cases of the
parties before it, took the view that on the date of filing of
C.S. Nos. 831 and 833 of 2005 the time stipulated in the
agreements between the parties for execution of the sale
deeds had not expired. Therefore, the cause of action to seek
the relief of specific performance had not matured.
According to the High Court it is only after filing of the
aforesaid suits and on failure of the defendants to execute
the sale deeds pursuant to the legal notice dated 24.2.2006
that the cause of action to seek the aforesaid relief of specific
performance had accrued. The High Court, accordingly, took
the view that the provisions of Order II Rule 2 (3) of the CPC
were not attracted to render the subsequent suits filed by the
plaintiff i.e. O.S. Nos. 202 and 203 non-maintainable. The
High Court also took the view that the provisions of Order II
sa.210.13
Rule 2 (3) of the CPC would render a subsequent suit not
maintainable, only, if the earlier suit has been decreed and
the said provisions of the CPC will not apply if the first suit
remains pending.
9. ... In such a situation, the plaintiff is precluded from
bringing a subsequent suit to claim the relief earlier omitted
except in a situation where leave of the Court had been
obtained. It is, therefore, clear from a conjoint reading of the
provisions of Order II Rule 2 (2) and (3) of the CPC that the
aforesaid two sub-rules of Order II Rule 2 contemplate two
different situations, namely, where a plaintiff omits or
relinquishes a part of a claim which he is entitled to make
and, secondly, where the plaintiff omits or relinquishes one
out of the several reliefs that he could have claimed in the
suit. It is only in the latter situations where the plaintiff can
file a subsequent suit seeking the relief omitted in the earlier
suit proved that at the time of omission to claim the
particular relief he had obtained leave of the Court in the
first suit.
10. The object behind enactment of Order II Rule 2 (2)
and (3) of the CPC is not far to seek. The Rule engrafts a
laudable principle that discourages/prohibits vexing the
defendant again and again by multiple suits except in a
situation where one of the several reliefs, though available to
a plaintiff, may not have been claimed for a good reason. A
later suit for such relief is contemplated only with the leave
of the Court which leave, naturally, will be granted upon due
satisfaction and for good and sufficient reasons. The
situations where the bar under Order II Rule 2 (2) and (3)
sa.210.13
will be attracted have been enumerated in a long line of
decisions spread over a century now.
11. .... It will be wholly unnecessary to enter into any
discourse on the true meaning of the said expression, i.e.
cause of action, particularly, in view of the clear enunciation
in a recent judgment of this Court in the Church of Christ
Charitable Trust and Educational Charitable Society,
represented by its Chairman v. Ponniamman Educational
Trust represented by its Chairperson/Managing Trustee[5].
The huge number of opinions rendered on the issue
including the judicial pronouncements available does not
fundamentally detract from what is stated in Halsbury's Law
of England, (4th Edition). The following reference from the
above work would, therefore, be apt for being extracted
hereinbelow:
"Cause of Action" has been defined as meaning simply a
factual situation existence of which entitles one person to
obtain from the Court a remedy against another person. The
phrase has been held from earliest time to include every fact
which is material to be proved to entitle the plaintiff to
succeed, and every fact which a defendant would have a
right to traverse. 'Cause of action' has also been taken to
mean that particular action the part of the defendant which
gives the plaintiff his cause of complaint, or the subject-
matter of grievance founding the action, not merely the
technical cause of action."
12. In the instant case though leave to sue for the relief of
specific performance at a later stage was claimed by the
sa.210.13
plaintiff in C.S. Nos. 831 and 833 of 2005, admittedly, no
such leave was granted by the Court. The question,
therefore, that the Court will have to address, in the present
case, is whether the cause of action for the first and second
set of suits is one and the same. Depending on such answer
as the Court may offer the rights of the parties will follow.
13. .... 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 C.S. Nos. 831
and 833 of 2005, particularly the pleadings extracted above,
leave no room for doubt that on the dates when C.S. 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
alongwith the relief of permanent injunction that formed the
subject matter of above two suits. The foundation for the
relief of permanent injunction claimed in the two suits
sa.210.13
furnished a complete cause of action to the plaintiff in C.S.
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.
15. ... In the aforesaid case this Court has taken the view
that whether a premature suit is required to be entertained
or not is a question of discretion and unless "there is a
mandatory bar created by a statute which disables the
plaintiff from filing the suit on or before a particular date or
the occurrence of a particular event", the Court must weigh
and balance the several competing factors that are required
to be considered including the question as to whether any
useful purpose would be served by dismissing the suit as
premature as the same would entitle the plaintiff to file a
fresh suit on a subsequent date. We may usefully add in this
connection that there is no provision in the Specific Relief
Act, 1963 requiring a plaintiff claiming the relief of specific
performance to wait for expiry of the due date for
performance of the agreement in a situation where the
defendant may have made his intentions clear by his overt
acts.
16. The learned Single Judge of the High Court had
considered, and very rightly, to be bound to follow an earlier
Division Bench order in the case of R.Vimalchand and
M.Ratanchand v. Ramalingam, T.Srinivasalu & T.
Venkatesaperumal (supra) holding that the provisions of
Order II Rule 2 of the CPC would be applicable only when
the first suit is disposed of. As in the present case the second
sa.210.13
set of suits were filed during the pendency of the earlier
suits, it was held, on the ratio of the aforesaid decision of the
Division Bench of the High Court, that the provisions of
Order II, Rule 2(3) will not be attracted. Judicial discipline
required the learned Single Judge of the High Court to come
to the aforesaid conclusion. However, we are unable to agree
with the same in view of the object behind the enactment of
the provisions of Order II Rule 2 of the CPC as already
discussed by us, namely, that Order II Rule 2 of the CPC
seeks to avoid multiplicity of litigations on same cause of
action. If that is the true object of the law, on which we do
not entertain any doubt, the same would not stand fully
subserved by holding that the provisions of Order II Rule 2 of
the CPC will apply only if the first suit is disposed of and not
in a situation where the second suit has been filed during the
pendency of the first suit. Rather, Order II, Rule 2 of the CPC
will apply to both the aforesaid situations. Though direct
judicial pronouncements on the issue are somewhat scarce,
we find that a similar view had been taken in a decision of
the High Court at Allahabad in Murti v. Bhola Ram[1894)
ILR 16 All 165 ] and by the Bombay High Court in Krishnaji
v. Raghunath[ AIR 1954 Bom, 125].
I have no doubt in my mind that the above decision of the
Apex Court in which the Hon'ble Apex Court considered the earlier
decisions on facts as well as on law, has a vigorous application to the
sa.210.13
issue in question. There is one more decision of the Supreme Court on
O.2 R.2 in the case of Deva Ram and another vs. Ishwar Chand and
another : 1996(1) Civil LJ 343, and I quote paragraph Nos. 11,12,14
and 16 from the said judgment which reads thus :
"11. We will deal with Order 2 Rule 2 of the Civil
Procedure Code first. It provides as under:
R.2. Suit to include the whole claim. (1) Every suit shall
include the whole of the claim which the plaintiff be 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.
Relinquishment of part of claim.
(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.
Omission to sue for one of several reliefs.
(3) 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 reliefs so omitted."
12. A bare perusal of the above provisions would
indicate that if a plaintiff is entitled to several reliefs against the
defendant in respect of the same cause of action, he cannot split
up the claim so as to omit one part of the claim and sue for the
other. If the cause of action is the same, the plaintiff has to place
sa.210.13
all his claims before the court in one suit as Order 2 Rule 2 is
based on the cardinal principle that the defendant should not be
vexed twice for the same cause.
14. What the rule, therefore, requires is the unity of all claims
based on the same cause of action in one suit.
16. In view of the above, what is to be seen in the
instant case is whether the cause of action on the basis of which
the previous suit was filed, is identical to the cause of action on
which the subsequent suit giving rise to the present appeal, was
filed. If the identity of causes of action is established, the rule
would immediately become applicable and it will have to be
held that since the relief claimed in the subsequent suit was
omitted to be claimed in the earlier suit, without the leave of the
court in which the previous suit was originally filed, the
subsequent suit for possession is liable to be dismissed as the
appellants, being the defendants in both the suits, cannot be
vaxed twice by two separate suits in respect of the same cause of
action.
There is also a decision of Delhi High Court in the case of
Kamal Kihsore Saboo vs. Nawabzada Hasan Khan : 2001 (Vol.4)
Civil Law Journal 177 and I quote the following paragraphs from the
said judgment:
"3. The appellant herein filed Suit No.863/98 which was a
suit for permanent injunction against the respondent herein in
sa.210.13
the Court of Senior Civil Judge, Delhi.
4. While this suit was pending, appellant filed another
Suit No.93/99 (out of which present appeal arises). This suit
was for specific performance of the contract and the appellant
prayed for decree of specific performance of Agreement to Sell
dated 5th January, 1991 thereby directing the respondent to
transfer the ownership of the suit properties in the name of
the appellant by duly executing and registering Sale Deed and
to attorn the tenants therein in favor of the appellant after
due intimation to such tenants.
5. By the impugned judgment dated 28th May, 1999,
learned Additional District Judge had been pleased to reject
the plaint on the ground that this suit was barred by the
provisions of Order II Rule 2 of Code of Civil Procedure. It is
held that the cause of action for a suit for specific
performance had arisen when the first suit, namely, Suit No.
863/98 was filed and, therefore, the appellant should have
included this relief in the said suit itself. By omitting to do so,
the appellant had precluded himself from suing for this relief
afterwards and, therefore, the second suit was not
maintainable.
6. The learned counsel for the appellant in challenging
the reasoning of the learned trial Court submitted that the
cause of action at the time of filing the first suit was not same
on which the instant suit for specific performance was filed.
His submission was that the respondent was trying to sell the
properties to some third party and the appellant had no
sa.210.13
option but to file the suit for injunction at that point of time,
seeking restraint order against the respondent from selling the
properties to third party. It is only in the written statement
filed in the first suit that the intention of the respondent
became clear to the effect that he did not want to sell the
properties to the appellant and that is why appellant filed the
second suit for specific performance.
8. From the aforesaid averments in plaint in the first suit
filed by the appellant, it is clear that appellant had pleaded
that the respondent was not adhering to the terms of
Agreement to Sell. With intention to cheat and defraud the
appellant he was not performing his part of the contract. He
had not done the needful in spite of legal notice dated 24th
June, 1996. Not only this, even it was pleaded that he was
trying to sell the properties to some other party. Thus
according to the averments contained in the said plaint itself
cause of action for seeking relief of specific performance had
ripened as according to the appellant respondent had failed to
perform his part of the contract. Still the appellant chose to
file the suit claiming relief of permanent injunction only when
on the basis of aforesaid bundle of facts, he could also claim
the relief of specific performance as well. Once he omitted to
claim the relief of specific performance, second suit for this
relief is clearly not maintainable in view of provisions of sub-
Rule-3 of Rule-2 Order-II of CPC which read as under:
10. The circumstances did not change between the first suit
and the second suit. In fact second suit is also based on same
averments.
sa.210.13
In the light of the above factual matrix, I think the plaintiffs
miserably failed in making use of the liberty granted by the High
Court on 3.3.1995 and the reasons perhaps could be of course by way
of imagination that the plaintiffs did not have the balance huge amount
of Rs.8.25 lakhs. I therefore answer Question No.3 in the affirmative
and hold that the Special Civil suit No. 7071995 was clearly barred
by the provisions of O. II R. 2, CPC and was not maintainable.
As to the assignment the following is relevant portion
from the agreement - Exh. 47:-
" Thus the sale will be completed and it will be registered either on
the name of second party (Baburao/Plaintiff no.2) or the other name
suggested by second party."
The meaning of the word 'suggest' as per Oxford Dictionary is
"put forward for consideration" and as per Webster Dictionary "to bring
or put forward for consideration or approval."
It is clear from the reading of the above that the second
sa.210.13
party Baburao was supposed to suggest the other name obviously to
none other than defendant-Manohar. There are no pleadings or
evidence on record that second party-Plaintiff No.2 Baburao had
suggested Plaintiff No.1-Ramesh's name to the defendant-Manohar for
assignment. Plaintiff No.2 -Baburao or any Panch witness on Exh.47
or Exh.48 had not entered into the witness box to show that he had
suggested to the defendant the name of plaintiff no.1 to defendant-
Manohar for assignment nor Plaintiff No.1 -Ramesh deposed to that
effect. Thus, in the absence of any indication about the legal assignment
in terms of the contract, it is difficult to agree with the Courts below
that the assignment could readily be inferred as per clause 3 of the
agreement particularly because there is pleading and evidence from
defendant-Manohar that he did not know anything and had not given
any consent for alleged assignment in favour of plaintiff No.1-Ramesh
nor he was given suggestion accordingly in the cross-examination
The reliance in the case of Shyam Singh vs. Daryao
Singh : AIR 2004 SC 348 placed by the Courts below does not appear
to be sound. A careful reading of the facts of Shyam Singh's case
(supra) shows that vide paragraph 3 there was an unequievocal term
in the agreement for assignment that defendants 2 to 4 had sold
sa.210.13
their right to obtain reconveyance of sale in favour of the plaintiff
specifically in the name of the plaintiff which is not the case at hand. On
the contrary, in the instant case, it was for plaintiff No.2-Baburao to
put forward for approval the name of second party (in this case
plaintiff No.1 Ramesh) before defendant-Manohar and then only upon
his agreement or approval there could be legal and valid assignment.
It is then important to note that Exh. 68-telegram was
issued by both the plaintiffs Ramesh as well as Baburao, asking for
refund of the money of Rs. 50,000/- in relation to agreement Exh. 47
meaning cancellation of the agreement itself within 24 hours which
showed that both of them were not ready and willing to pay further
huge sum of Rs.8,25,000/- and obtain the sale deed. That apart, the
lower Appellate Court held that the plaintiffs were ready and willing to
perform their part of the contract and that an amount of Rs. 2 lakhs
was offered by plaintiff No.1 Ramesh to defendant-Manohar and that
therefore he was ready and willing. A careful reading of the evidence of
Ramesh will show that under the telegram Exh. 53 dated 31.1.1992,
he stated that he had informed defendant-Manohar that he was
avoiding to accept Rs. 2 lakhs from 13.1.1992 when as earlier stated,
defendant-Manohar came to know about the assignment Exh. 48 for
sa.210.13
the first time on 5.2.1992. That apart, the pleadings and evidence of
Ramesh does not show a word as to when and how and in what
manner and what place and by what mode and in whose presence
and on what particular date/s the amount of Rs 2 lakhs was offered to
defendant-Manohar. Not only that plaintiff Ramesh did not at all
depose in his evidence as to whether he had Rs. 2 lakhs with him and
from what source and whether he had withdrawn an amount of Rs. 2
lakhs. Therefore, his bald evidence that he offered of Rs. 2 lakhs
particularly when the same was denied by the defendant Manohar in
his evidence takes one nowhere. The amount of Rs. 2 lakhs in the year
1991 was a very big amount and one cannot presume the availability
thereof so easily. Heavy burden lay on the plaintiff no.1 Ramesh to
prove before the Court through bank statement or otherwise about the
availability of Rs. 2 lakhs with him right from 13.1.1992 till his
telegram or at any time thereafter. However, there were no such
pleadings nor evidence and he remained satisfied by his parol evidence
that too blissfully vague. In my opinion, the readiness and willingness to
perform the part of his contract particularly when huge amount of Rs.
8,25,000/- was the balance and Baburao had withdrawn Exh. 47 due
to his financial difficulties there was hardly any scope to say so. It
appears that plaintiff No.1-Ramesh was only interested in getting
sa.210.13
injunction to simply lock the property rather than having specific
performance in the earlier Suit No.501/1992 which leads one to believe
that plaintiffs were not at all ready and willing to perform their part of
the contract and had in fact no money with them. This is crystal clear
from his following evidence :-
" 3...............The defendant also authorised to get the
aforesaid 5 acres land assessed for non-agricultural
purposes and also carved out and demarcated plots to sell
the same to the prospective purchasers. The balance
amount of Rs. 8,25,000/- was to be paid as shown in the
Agreement by selling the plots. The entire balance amount
of Rs. 8,25,000/- was agreed to be paid upto 30.1.1994
and the sale deed should be executed thereafter as per
the convenience of both the parties. Thus the time was
not the essence of the suit agreement dated
21.1.1991. ............"
The above part of the evidence to collect the money by sale
of plots and then pay to defendant-Manohar is not to be found in the
agreement-Exh.47.
In view of the above, the Question No.4 will have to be
answered in the affirmative, which I do.
sa.210.13
As to Question No.5 :
15. The learned trial Judge held that Dr. Prakash, the brother
of defendant-Manohar had filed Regular Civil Suit No. 343/1992 for
partition and separate possession including the suit property in this suit
and that remained pending. The Appellate Court however held that the
said suit was brought in order to defeat the claim of the plaintiffs for
which there is neither any pleading nor evidence nor it was anybody's
case to that effect. The finding to that effect by the lower Appellate
Court is clearly by way of tangent. It is a fact that Dr. Prakash,
defendant-Manohar and third brother Kailash had share in the suit
property as is evident from suit decree Exh.66. Therefore, there was
clear difficulty in passing any decree for specific performance against
defendant-Manohar in respect of the estate belonging to the joint family.
Apart from that, there was a notification by the Government of
Maharashtra for acquisition of some part of the suit land for N.I.T.
which is also a fact proved on record. Hence, question No.5 will have
to be answered in the affirmative.
16. The upshot of the above discussion is that the present
Second Appeal will have to be allowed. In the result, I pass the
sa.210.13
following order.
ORDER
1) Second Appeal No. 210/2013 is allowed.
2) The impugned judgment and decree dated 16.03.2013 in Regular Civil
Appeal No.589/2012 made by the learned District Judge-9, Nagpur, is set
aside and the Special Civil Suit No. 707/1995 filed by Respondent Nos. 1 & 2
is dismissed.
3)
The judgment of decree dated 04.09.2004 in Special Civil Suit No.
707/1995 made by the learned Joint Civil Judge, Senior Division, Nagpur, is
restored.
4) No order as to costs.
5) Under the circumstances, the judgment is stayed for a period of
twelve weeks from today.
JUDGE
sahare
