Rohit Kumar & Another vs A.S. Chugh
2008 Latest Caselaw 2039 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 36/2007

%                                 Date of decision: 20.11.2008

ROHIT KUMAR & ANOTHER                                  ....... Plaintiffs
                       Through: Mr Keshav Dayal, Sr Advocate with Mr N.
                                Mittal and Mr P Dayal, Advocates.

                                Versus

 A.S. CHUGH                                           ....... Defendant
                       Through: Mr A.S. Chandhiok, Sr Advocate with Mr
                                Rohit Puri, Ms Geetika Panwar, Ms Benu
                                Sodhi and Mr Sindhu Sinha, Advocates.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?       YES

2.     To be referred to the reporter or not?   YES

3.     Whether the judgment should be reported YES
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The defendant after filing the written statement to the suit for

specific performance of an agreement of sale of immovable

property, submitted before the court that the suit was not

maintainable. This court vide order dated 23rd May,2007, even

before the framing of issues, listed the matter for arguments on the

question of maintainability of the suit. The senior counsels for the

plaintiff as well as the defendant have been heard on the aspect of

maintainability.

2. The defendant has challenged the maintainability of the suit for

the reason of the plaintiffs having earlier filed a suit for permanent

injunction for restraining the defendant from selling, encumbering

or parting with the possession of the property agreed to be sold to

the plaintiffs to any other person. It is stated in para 1 of the

preliminary objections in the written statement of the defendant

that the said suit was filed by the plaintiffs before the court of the

Civil Judge, Delhi and along with the said suit an application for

interim relief was also filed; that the said application was rejected

by the court of the Civil Judge, Delhi and no appeal had been

preferred by the plaintiffs; that by the earlier suit for injunction

also, the plaintiffs were seeking to enforce their rights under the

alleged agreement to sell and the present suit for specific

performance is also for enforcement of the same alleged agreement;

that the plaintiffs ought to have sought the relief of specific

performance in the previously instituted suit which till the time of

institution of the present suit was stated to be still pending before

the court of Civil Judge, Delhi. It was thus urged that the present

suit was barred under the provisions of order 2 rule 2 of CPC.

3. It is further the admitted position that the plaintiffs after the

institution of the present suit have withdrawn the previous suit for

permanent injunction. The court of the Civil Judge, Delhi vide order

dated 26th February,2007 (the present suit was instituted on 8 th

January, 2007) allowed the said previous suit to be withdrawn

unconditionally on the prayer of the plaintiffs, subject however to

costs of Rs.5,000/-. The senior counsel for the defendant has thus

argued on the maintainability of the present suit not only under

order 2 rule 2 of the CPC but also argued that the present suit is

barred by the provisions of order 23 rule 1 of the CPC.

4. Though the suit was got listed for arguments on

maintainability but it may be mentioned that during the arguments

on 22nd July,2008 it was discovered that the pleadings/orders of the

earlier suit on the basis whereof maintainability was challenged had

not been filed. Direction in that regard was made. The defendant

thereafter filed the pleadings and orders in the said earlier suit. It

may also be noticed that it was the preliminary contention of the

senior counsel for the plaintiffs that without framing an issue, the

arguments on maintainability could not be heard but in view of the

earlier order listing the suit for arguments on maintainability having

attained finality, the counsels were heard.

5. The plaintiffs have sued for specific performance of an

agreement dated 2nd August, 2004. As per the agreement filed by

the plaintiffs, the balance sale consideration was payable by the

plaintiffs to the defendant on or before 31st January, 2007 against

execution of all requisite documents viz sale deed, possession letter,

receipt etc. and delivery of physical possession of the property by

the defendant to the plaintiffs. The parties are at issue with respect

to the said date of 31st January, 2007. It is the contention of the

defendant that the plaintiffs have in their copy of the agreement

changed the date for payment of balance sale consideration and

completion of transaction from 31st March,2005 to 31st

January,2007. But the same does not fall for adjudication at this

stage. The maintainability of the suit is to be adjudicated on the

averments of the plaintiffs.

6. The senior counsel for the defendant has drawn attention to

the plaint in the earlier suit and in the present suit and sought to

demonstrate that the contents thereof are identical. It is urged that

even though as per the plaintiffs the date for conclusion of the

transaction was 31st January, 2007 but it was the averment of the

plaintiffs in the plaint in the earlier suit also that the defendant was

in breach of the agreement and resiling from the agreement. It was

urged that after the plaintiffs had instituted a suit for permanent

injunction, the second suit for specific performance does not lie and

more so when the prior suit was withdrawn unconditionally and

without seeking leave from the court for suing for specific

performance. Relying upon order 23 rule 1 (4) it was argued that a

fresh suit in respect of "subject matter" of the earlier suit or "such

part of the claim" as in the earlier suit, was precluded. It was

argued that the subject matter of the two suits was the same. The

senior counsel submitted that merely because a new notice was

stated to be given by the plaintiffs, after the institution of the

previous suit and before the institution of the present suit would not

give a new cause of action to the plaintiffs and the subject matter of

the suits remained the same. It was further argued that had the

plaintiffs proceeded with the previous suit, it would have been

decided therein whether the agreement to sell subsisted or not.

With reference to the plaint in the present suit, it was argued that

there was no averments therein that the relief of specific

performance was not claimed at the time of institution of the earlier

suit because the cause of action therefor had then not accrued.

Reliance was placed on AIR 1964 SC 1810 and on a judgment of a

single bench of this court in S. Sawant Singh Vs. S. Darshan

Singh AIR 1992 Delhi 80.

7. Per contra the senior counsel for the plaintiffs placed reliance

on Om Prakash Srivastava Vs. Union of India (2006) 6 SCC 207,

Dalip Singh Vs. Mehar Singh Rathi (2004) 7 SCC 650 and Deva

Ram Vs. Ishwar Chand and another AIR 1996 SC 378.

8. In my view, the crucial question is whether the cause of action

for the relief for specific performance can be said to have accrued to

the plaintiffs at the time when the previous suit claiming the relief

for injunction only was instituted. If the cause of action can be said

to have accrued, the present suit would undoubtedly be barred by

order 2 rule 2 of CPC, otherwise not.

9. Article 54 of Schedule 1 to the Limitation Act while prescribing

a period of three years for a suit for the relief of specific

performance, prescribes the date of commencement as the date

fixed for performance and if no date is fixed for performance, then

three years from the date when the plaintiff first has notice that the

defendant is refusing performance.

10. The plaintiffs have approached the court with a case of

agreement fixing a date for performance. Thus such a case cannot

fall in the second category (of when the plaintiff first has notice that

performance is refused) in as much as the said category is

applicable only if no such date is fixed. In cases where the date for

performance is fixed in the agreement, the other category of the

date of notice to the plaintiffs that performance is refused, is not

applicable.

11. Having said that I may notice that though the date fixed for

performance according to plaintiffs was 31st January, 2007, the

plaintiffs instituted this suit for specific performance before the said

date on 08.01.2007. Would this fact or the fact that the plaintiffs

themselves in the earlier suit also stated that the defendant was

refusing performance make a difference or whether for the said

reasons it can be said that the cause of action for the relief for

specific performance, notwithstanding the date for performance

having been fixed in the agreement had accrued to the plaintiffs

prior to the institution of the suit for permanent injunction. In the

facts of the present case, I do not find so.

12. The plaintiffs in the plaint in the earlier suit for injunction

stated that they were in the process of arranging the balance sale

consideration and shall make the entire payment in terms of the

agreement i.e. by 31st January,2007; that the defendants had no

right to deal with any other person with respect to the property till

the time granted by the defendant to make the full payment i.e. by

31st January,2007 had not expired. It was the contention of the

plaintiffs in the plaint in the earlier case that notwithstanding the

said position, the defendant was threatening to deal with the

property with the others.

13. On the contrary, the case of the plaintiffs in the plaint in the

present suit is that they, during the pendency of the previous suit

for injunction sent a notice dated 23rd December, 2006 to the

defendants informing the defendants that the plaintiffs had

arranged the balance sale consideration and were ready and willing

to pay the same and calling upon the defendant to perform his

reciprocal obligations. Undoubtedly, the plaintiffs in the paragraph

mentioning the date on which the cause of action for the suit had

accrued to the plaintiffs stated that the cause of action had also

accrued before they instituted the previous suit for permanent

injunction but also stated that the cause of action also accrued when

the plaintiffs vide notice dated 23rd December, 2006 informed the

defendant of their readiness and when the defendant in spite of the

same has not performed his reciprocal obligations.

14. Thus, it would seen that as per the plaintiffs, the agreement

fixed the date of performance "on or before 31st January, 2007"; the

plaintiffs at the time of institution of the previous suit for permanent

injunction or prior thereto were not ready and willing to perform

their part of the agreement. Such readiness and willingness of the

plaintiffs is essential to the plaintiffs' claim for specific performance.

As per the case of the plaintiffs, the plaintiffs had time till 31st

January, 2007 to pay the balance sale consideration; they could not

pay the balance sale consideration prior to the institution of the suit

for injunction, but could pay the same after the institution of that

suit, though within the time stipulated in the agreement. The

readiness and willingness of the plaintiffs is essential to a claim for

a specific performance under provisions of section 16 of the Specific

Relief Act, 1963 and constitutes a cause of action for the relief of

specific performance. The averments in the plaint in the previous

and the present suit, and which alone have to be seen at this stage

thus do not show that the cause of action for the relief of specific

performance had accrued to the plaintiffs prior to the institution of

the previous suit for injunction. If that be the position, neither

order 2 rule 2 nor order 23 rule 1 of the CPC would bar the present

suit, notwithstanding the plaint in the previous suit also making

averments of the defendant having resiled from the agreement.

15. In my view, the factum of the plaintiffs having instituted the

present suit also prior to 31st January, 2007 would not come in the

way of the plaintiffs in as much as the agreement permitted the

plaintiffs to pay the balance sale consideration on or before 31st

January, 2007. Thus upon the plaintiffs, before 31st January, 2007,

vide notice dated 23rd December, 2006 having offered the balance

sale consideration to the defendant and the defendant having

refused to perform his part of the agreement, the cause of action for

relief of specific performance accrued to the plaintiffs.

16. In my view for the reason of the plaintiff in the cause of action

paragraph in the plaint in the present suit, mentioning the dates

prior to the institution of the previous suit also, would also not make

any difference. Cause of action is a bundle of facts and the entire

bundle of facts of entering in the agreement, issuance of the

previous notice, institution of the previous suit, together with the

last cause of action of refusal of the defendant to abide by the notice

dated 23rd December, 2006, together constitutes the cause of action.

What has to be seen is whether the cause of action for the

relief of specific performance was complete before the

institution of the previous suit. The answer has to be in the

negative. Without the plaintiffs offering the balance sale

consideration to the defendant signifying the plaintiffs' readiness

and willingness to perform the essential term of contract,

the plaintiff could not have sued for specific performance.

Thus, the institution of the previous suit for injunction stating that

the defendant was resiling from the agreement would not bar the

present suit.

17. I do not find the judgments cited on either side to be applicable

to the facts of the present case. I may, however, refer to the

judgment in Kamal Kishore Sahu Vs. Nawab Zada Humayun

Kamal Hasan Khan 90 (2001) DLT 45 (DB) in which the Division

Bench of this court held a second suit for specific performance on

same averments as in a previous suit for permanent injunction to be

barred by the provisions of order 2 rule 2 of the CPC. However, in

that case, as borne out from the facts reproduced in the judgment,

the date fixed for performance pleaded by the plaintiffs was of a

time prior to institution of the first suit for permanent injunction.

For this distinguishing feature I do not find myself bound by the

ratio laid down therein.

18. With all respect I am also humbly of the view that a suit for

permanent injunction filed after accrual of the cause of action for

specific performance, as in Kamal Kishore Sahu aforesaid can not

bar a subsequent suit for specific performance.

19. This is for the reason that under section 41 (h) of the Specific

Relief Act an injunction cannot be granted when equally efficacious

relief can be obtained by any other usual mode. In my opinion, after

the cause of action for the relief of specific performance has

accrued to a purchaser, the efficacious relief of specific

performance is available to the purchaser and an injunction at the

instance of the purchaser restraining the seller from dealing with

the property cannot be granted. This has also been held in Satish

Bahadur v Hans Raj AIR 1980 Punjab 351 with which I

respectfully concur. If injunction cannot be granted or if the relief

of injunction is barred under section 41 (h) of the Specific Relief

Act, plaint in such a suit for permanent injunction is liable to be

rejected. If such a plaint is liable to be rejected, a suit on the basis

of such a plaint cannot bar the subsequent suit for the efficacious

relief of specific performance. The courts, from time to time have

held that one of the ingredients to be made out for applicability of

order 2 rule 2 of the CPC is "the earlier suit must have been decided

on merits"; this ingredient does not require that the earlier suit

ought to have necessarily reached its logical conclusions. Even if

the earlier suit is dismissed in default or withdrawn, the provisions

of order 2 rule 2 would apply. All that it means is that an

application for amendment to include a relief which in a subsequent

suit would be barred under order 2 rule 2 of the CPC can be made

in the pending suit and that if the earlier suit is dismissed on a

technical plea, then also the provisions of order 2 rule 2 of the CPC

would not apply. A single judge of this court in Brahma Kumari v

Sarwan Singh 1981 Rajdhani Law Reporter 486 has so interpreted

the said ingredient of applicability of order 2 rule 2 of the CPC. I

may further with respect state that the aforesaid aspect was not

urged before the Division Bench of this court in Kamal Kishore

Sahu (supra) and thus finds no adjudication.

20. Another single judge of this court in Ashok Agrawal Vs.

Bhagwan Das Arora 88 (2000) DLT 606 also held a suit for specific

performance after a suit for permanent injunction to be barred by

order 2 rule 2 of the CPC. However, the finding in that case also

was that the time fixed in the agreement in that case for

performance had elapsed before the institution of the suit for

permanent injunction. On the contrary, in Sukh Ram Das Vs.

Ramesh Chand Jain 67 (1997) DLT 289, the suit for specific

performance was held to be maintainable when the defendant in the

previous suit for permanent and mandatory injunction had objected

to the pecuniary jurisdiction of the court where that suit was

instituted. It was held that the defendant could not be permitted to

approbate and reprobate. I find that the defendant in the present

case also, in the previous suit for injunction had in his written

statement, taken a plea that the suit for injunction without the

consequential relief of specific performance was not maintainable

and was also beyond the pecuniary jurisdiction of that court. The

defendant having stated so cannot, when the suit for specific

performance is filed, object to the same also.

21. I may also notice that Division Bench of the Gujarat High Court

in Rajivbhai Mathurbhai Solanki v Bijalbhai Devjibhai

Prajapati AIR 2004 Gujarat 102 has also held that where the cause

of action for the relief of specific performance had not accrued

when the suit for permanent injunction was filed, the subsequent

suit for specific performance would not be barred by order 2 rule 2

of the CPC. The Apex Court in Shri Inacio Martins Vs. Narayan

Hari Naik AIR 1993 SC 1756 has held that even where the subject

matter of the two suits was very same but the cause of action,

distinct and also if the relief claimed in the subsequent suit was not

identical to the relief claimed in the previous suit and further if the

subsequent suit was based on a distinct cause of action not found in

the former suit, the bar of order 2 rule 2 would not apply. The Apex

Court further held that where a previous suit had become

infructuous, in that case also the provisions of order 2 rule 2 would

not apply.

22. As far as the provisions of order of 23 rule 1 are concerned,

they are attracted when the second suit is instituted after the

withdrawal of the first suit. That is not the position here. For this

reason also the present suit instituted during the pendency of the

earlier suit cannot be barred by order 23 rule 1 of the CPC.

23. I, therefore, do not find the present suit to be not maintainable

for the reasons aforesaid and the question of maintainability of the

suit to the extent discussed above is decided in favour of the

plaintiffs and against the defendant.

24. Though, I would ordinarily have imposed costs on the

defendant for the reason of having raised the question of

maintainability even before framing the issues and thereby delaying

the suit for more than one year but in view of the serious averments

made, of the plaintiffs having manipulated their copy of the

agreement to sell, I am refraining from doing so.

RAJIV SAHAI ENDLAW (JUDGE)

November 20, 2008 P