Shri Naresh Chand Jain vs M/S Mirahul Enterprises & Anr.
2011 Latest Caselaw 5563 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.442/2002

%                                           18th November, 2011

SHRI NARESH CHAND JAIN                             ...... Appellant
                    Through:          Mr. J.K.Seth, Sr. Advocate with
                                      Ms. Shalini Kapoor, Advocate.


                          VERSUS

M/S MIRAHUL ENTERPRISES & ANR.                    ...... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. This appeal came up for hearing for the first time on

31.10.2011 when the appellant was represented but no one appeared

for the respondents. Counsel for the respondents was stated to be

busy in the Supreme Court as the counsel for the appellant in fairness

called up the counsel for the respondents. On 4.11.2011, the appeal

was once again adjourned at the request of the respondent to

14.11.2011. On 14.11.2011, I have specifically noted that ordinarily, I

would not have granted adjournment, however, a new counsel

appeared for the respondent and stated that he did not have the

paper book of the appeal, and which the learned senior counsel for

the appellant fairly agreed to supply to the new counsel for the

respondent. I am informed that even though the paper book has

been duly supplied to counsel for the respondents, however, today

though the matter is effective item no.2 on the „Regular Board‟ no

one appears for the respondents although it is 12:25 P.M. I have

therefore heard the counsel for the appellant and am proceeding to

dispose of the appeal after perusing the record.

2. This appeal has been filed under Section 96 of the Code of

Civil Procedure (CPC), 1908 impugning the judgment dated 31.5.2002

of the Trial Court which dismissed the suit as being barred by Order 2

Rule 2 CPC.

3. The facts of the case are that there was an agreement to

sell dated 2.6.86 between the parties, with the appellant/plaintiff

being the proposed purchaser and the defendant/respondent being

the proposed seller with respect to a flat bearing no.G-4, Mirahual

Apartments, A-13, Green Park Extension, New Delhi. The total

consideration for sale was fixed at Rs.4.5 lacs, out of which the

appellant/plaintiff paid an amount of Rs.2,00,000/- by means of two

cheques of Rs.1,00,000/- each to the respondents/defendants.

Another post dated cheque of Rs.2,00,000/- was given on 20.6.1986,

which the appellant/plaintiff stopped payment of as it was transpired

that the area of the disputed flat was much less than 1730 square

feet as stated in the agreement to sell. The appellant also received

possession of the disputed flat pursuant to the agreement to sell.

4. The appellant before filing of the present suit had also

filed a suit for injunction restraining respondents/defendants from

taking forcible possession of the suit property, and which suit was

ultimately withdrawn by the appellant/plaintiff on 1.9.1989 before the

Appellate Court in which an appeal was pending against an interim

order, inasmuch as, in the meantime the appellant/plaintiff had

already filed the present suit for specific performance, etc.

5. The Trial Court has decided the suit on a preliminary issue

by holding that the suit is barred by Order 2 Rule 2 CPC by giving the

following findings:-

"21. It is not disputed that the parties entered into an agreement to sell of disputed flat on 2.6.86 for a consideration of Rs.4,50,000/- out of which Rs.2 lacs by two cheques of Rs.1 lac each were paid by the plaintiff to the defendants and advance payment of Rs.2 lacs was also made for a sum of Rs.2 lacs by way of post dated cheques. It is also not disputed that plaintiff is in possession of the disputed flat, though there is dispute regarding manner in which the plaintiff occupied the disputed flat. According to the plaintiff, possession of the disputed flat was delivered to him on 2.6.86, when he made part payment of the sale consideration at the time of agreement to sell, t the defendants, while according to the defendants, the plaintiff after obtaining ex-parte injunction from the court of Sub- Judge, Delhi, by filing suit for injunction, had trespassed into the disputed flat.

22. The basic dispute between the parties is regarding areas of the disputed flat which is the foundation of the present suit, filed by the plaintiff and which according to the plaintiff led him to stop payment of the post dated cheque dated 20.6.86 of Rs.2 lacs. The certified copies of the pleadings of the parties and judgment/decree dt. 20.1.286 of Ld. Sub-

Judge, Delhi regarding withdrawal of the suit and statement of Ld. counsel for the appellant/plaintiff dt.1.9.89 are also on record and these documents are not disputed during arguments. The facts as disclosed in the plaint of the plaintiff in the earlier suit for permanent injunction being suit no. 304/86 filed before senior sub-Judge, Delhi by the plaintiff on 4.7.86 and facts disclosed in the present suit are almost identical and in the said suit also the plaintiffs have alleged that the disputed flat should have been of 1730 sq. ft., but was of plinth area of 1200 sq. ft. including the area of setback, percentage of stairs etc. of not more than 1400 sq. ft. In para No. 9 of the plaint in the earlier suit, the plaintiff has alleged that cause of action arose when on various dates the defendants mis-represented about the area of flat was 1730 sq.ft. and against the area of 1400 sq.ft. and also on 6.6.1986 when the relevant fact was discovered by the plaintiff.

23. In the present suit also, the plaintiff in para No. 26 of the plaint has alleged that the cause of action arose against the defendants, when the defendants entered into an agreement to sell dt.2.6.86 and received a sum of Rs.2 lacs by two cheques and in part performance of the agreement to sell, delivered possession of the disputed flat and also on 2.6.1986, when the area of flat was discovered short on 3.7.86 when the defendants threatened to dis-possess the plaintiff."

6. Learned senior counsel for the appellant contends that

the Trial Court in fact mis-directed itself in dismissing the suit under

Order 2 Rule 2 CPC inasmuch as it was really the provision of Order

23 Rule 1 which was called upon to be decided in the present case

and not Order 2 Rule 2 CPC inasmuch as the earlier suit was not

disposed of on merits but was withdrawn by the appellant/plaintiff. It

is argued that a suit on the same cause of action cannot be filed

under Order 23 Rule 1 only after withdrawal of the earlier suit,

however, if a suit, i.e. present suit, was already filed when the earlier

suit for injunction seeking restraint against forcible dis-possession

was pending, then, in such circumstances, the present suit was not

barred under Order 23 Rule 1 CPC. Reliance is placed upon the

decision of the Supreme Court in the case of Vimlesh Kumari

Kulshrestha vs. Sambhajirao and Another (2008) 5 SCC 58. It

is also argued by learned senior counsel for the appellant that the

cause of action in the earlier suit for injunction was confined to the

cause of action qua the threat of illegal dis-possession based on the

rights which had come into existence under the agreement to sell

dated 2.6.1986, and which rights were in substance, though not

specifically pleaded, were rights actually under Section 53-A of the

Transfer of Property Act, 1882 containing the doctrine of part

performance. It is also argued that the suit for specific performance

is a separate cause of action than the earlier suit for injunction

inasmuch as in the present suit for specific performance, besides the

issue of readiness and willingness which is required to be averred,

there would be an issue of the area of the disputed flat which would

be required to be determined so as to decide the price which would

be payable, and which was not a part of the cause of action in the

earlier suit for injunction, which as already stated, was confined to

seeking restraint against the illegal threat of dis-possession.

7. In my opinion, all the arguments as raised by learned

senior counsel for the appellant are well merited and therefore the

appeal has to succeed. Firstly, the Supreme Court has quite clearly

observed in the facts of the case of Vimlesh Kumari Kulshrestha

(supra) that really the provision of Order 23 Rule 1 CPC will not apply

if the second suit is already filed before the earlier suit has been

withdrawn. Therefore, the subject suit was validly filed and could not

have been dismissed by applying either the provisions of Order 23

Rule 1 CPC or Order 2 Rule 2 CPC. In fact, for the reasons as

contained in the arguments of the learned senior counsel for the

appellant, cause of action in the present suit for specific performance

is surely different and in much larger expanse than the earlier suit for

injunction, which was on a limited cause of action of the threat of dis-

possession. The test, as repeatedly held in various judgments, in

deciding whether the later suit is barred by provisions of Order 2 Rule

2 CPC is to see if evidence in the earlier suit will be the same as

required to be led in the second suit. Admittedly, evidence in the

present suit for specific performance would definitely not be the same

to the earlier suit for injunction. Therefore, there is no scope for

applicability even of Order 2 Rule 2 CPC.

8. Accordingly, the appeal is allowed. The impugned

judgment and decree dismissing the suit under Order 2 Rule 2 CPC is

set aside. Parties are left to bear their own costs. Decree sheet be

prepared. Trial court record be sent back.

9. The appellant to appear before the District and Sessions

Judge on 20.12.2011, and on which date District and Sessions Judge,

Delhi will mark the suit to a competent Court for disposal in

accordance with law. The competent Court to whom the suit is

marked will issue necessary notices to the respondents/defendants

before proceeding ahead with the suit, inasmuch as the

respondents/defendants have not been represented in the present

appeal.

VALMIKI J. MEHTA, J.

NOVEMBER 18, 2011 ak