Puran Chand vs Brij Lal
2013 Latest Caselaw 934 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                              R.S.A. NO.16 OF 2001

                                           Decided on : 25th February, 2013

PURAN CHAND                                           ...... Appellant
                      Through:      Mr. P.K.Gulia, Advocate.

                        Versus

BRIJ LAL                                             ...... Respondent
                      Through:      Mr.Manoj, proxy counsel

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. Both the learned counsel for the appellant as well as proxy counsel

for the respondent pray for an adjournment on the ground that the

parties are trying to settle the matter.

2. The request of the learned counsel for the parties for adjournment

cannot be allowed on account of the fact that this is a regular

second appeal pending for the last more than 12 years without

formulating any substantial question of law.

3. The learned counsel for the parties have failed to assist the Court in

formulating any substantial question of law purported to be arising

from the said regular second appeal.

4. The substantial question of law which is purported to have been

formulated in the appeal is as under:

"Whether the ADJ erred in not appreciating the contention of the appellant that the cause of action for filing the suit for injunction was different from the suit for recovery?"

5. The aforesaid question is essentially a question of fact which has

been answered by the appellate Court against the appellant/plaintiff

stating therein that in terms of Order 2 Rule 2 CPC, the suit of the

plaintiff should contain the whole of the claim. Admittedly, in the

instant case, a sum of `75000/- is purported to have been paid by

the appellant /plaintiff to the respondent /defendant in pursuance to

the agreement to sell and the defendant /respondent is purported to

have executed an agreement to sell in favour of the

petitioner/plaintiff in respect of his property. When the defendant

/respondent had backed out of the agreement, the plaintiff had

chosen to file a suit for specific performance, he ought to have

included the relief of claim, recovery of the amount paid to him to

the respondent/defendant in the said suit. Since this has not been

done, it is assumed that the appellant /plaintiff had given up the

claim of recovery and was banking only on specific performance.

Once this was done by the appellant, he could not have chosen to

file subsequent thereto, an independent suit for recovery of the

aforesaid amount. This is what is prohibited under Order 2 Rule 2

CPC and this is preciously what the appellate Court has held.

6. I do not find any substantial question of law arising from the said

regular second appeal and accordingly, the same is dismissed.

V.K. SHALI, J.

FEBRUARY 25, 2013 RN