Lakhbir Singh vs Arun Khanna
2015 Latest Caselaw 5274 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment Reserved on: July 13, 2015
                                       Judgment Delivered on: July 23, 2015

+                                RFA (OS) 111/2014
       LAKHBIR SINGH                                     ..... Appellant
                Represented by:        Mr.I.S.Alag, Advocate with
                                       Mr.R.S.Bisht and Mr.Ahmad
                                       Shahrooz, Advocates

                                       versus

       ARUN KHANNA                                       ..... Respondent
               Represented by:         Mr.Sandeep Mittal, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.

1. Post completion of pleadings, called upon to admit/deny the documents filed by the parties, execution of Ex.P-1 was admitted by the parties. It is the agreement to sell executed on November 18, 2006 by Arun Khanna (the seller/defendant) and Lakhbir Singh (the purchaser/plaintiff). It's second recital and the covenants read as under:-

"And whereas the first party/Seller has agreed to sell the Entire Ist Floor without roof rights of property No.3, Road No.5, Punjabi Bagh Extn. New Delhi - 110026, measuring : 299.15 sq.yds. to the second party/Purchaser, with well furnished fittings and fixtures with electricity and water connection in all manners at his own bona fide needs requirements, for a total sale consideration amount of `1,20,00,000/- (Rupees One Crore Twenty Lacs only) and the second party/Purchaser has agreed to purchase in which the second party/Purchaser had paid a sum of `12,00,000/- (Rupees Twelve Lacs only) as earnest money/Byana to the first party and the balance sale consideration Amount of `1,08,00,000/- (One Crore Eight Lacs

only) which shall be paid by the Second party/purchaser to the first party/Seller on or before 300 days i.e. TEN MONTHS. 15.08.2007.

NOW THIS AGREEMENT TO SELL IS WITNESSETH AS UNDER:-

1. That the first party/Seller hereby assures to the Second Party that the above noted property under sale is free from all kinds of encumbrances, liens decree, court case, attachments etc., if found otherwise the First party held liable for the same.

2. That all the outstanding dues, charges, taxes, penalties shall be borne by the first party/Seller.

3. That the first party/Seller shall deliver the peaceful vacant possession after well furnished requirements as per the settlement of both the parties to the Second party/Purchaser as and when he/she will receive the balance amount within stipulated periods, with all proper documents regarding the above said property under sale.

4. That if first party/Seller shall fails to comply this agreement then he/she shall liable to payable the double amount of the Earnest Money to the Second party/Purchaser.

5. That if Second party/Purchaser shall fails to comply this Agreement then his/her earnest money shall be forfeited by the First party/Seller.

6. That the Second party shall fully be entitled to transfer the said property in his/her name or in the name of his/her nominee, after paying the full consideration amount to the First Party/Seller.

7. That all the expenses of Stamp Paper, Registration Fees shall be borne by the Second party/Purchaser.

8. That one water meters and one electricity meters installed by the first party in favour of second party at his expenses.

9. That all the legal heirs, executors, administrators of both the parties shall also bound by all these terms and conditions of this Agreement.

10. That this agreement to Sell & Purchase is made between both the parties by their mutual consents, sound mind, good health and without any force from anywhere."

2. Sale consideration agreed is `1,20,00,000/- (Rupees One Crore and Twenty Lacs only). The first floor of property bearing Municipal No.3 on road No.5 in Punjabi Bagh Extension, New Delhi, has to be sold. `12,00,000/- (Rupees Twelve Lacs only) are acknowledged as having been received by Arun Khanna. The sale has to be completed on or before 300 days, the agreement to sell is executed on November 18, 2006. The parties have thus recorded that the sale-deed has to be executed by August 15, 2007.

3. In the suit instituted on May 26, 2009, seeking specific performance of the agreement to sell Ex.P-1, case pleaded by Lakhbir Singh is that after Ex.P-1 was executed and he paid `12,00,000/- (Rupees Twelve Lacs only) to Arun Khanna, and that balance sale consideration had to be paid when sale-deed was executed, at the asking of Arun Khanna he paid further sums, and in all paid `72,00,000/- (Rupees Seventy Two Lacs only) to Arun Khanna.

4. Admittedly, before the suit seeking specific performance of Ex.P-1 was executed on May 26, 2009, a prior suit seeking a decree for permanent injunction to restrain Arun Khanna from selling, parting with the possession or creating any third party right in the property agreed to be sold was filed

by Lakhbir Singh on September 26, 2007. It was registered as Suit No.551/2007 in the Court of Ms.Savitri, Civil Judge, Delhi.

5. Vide impugned judgment and decree dated April 21, 2014, suit instituted by Lakhbir Singh seeking specific performance of Ex.P-1 has been held to be barred under Order II Rule 2 of the Code of Civil Procedure; and needless to state the reason is that on the same cause of action, having filed on September 26, 2007 the suit for permanent injunction without obtaining leave of the Court to institute the suit for specific performance, the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure.

6. The learned Single Judge has noted that both parties had cited various decisions, but none had cited the decision reported as 2013 (1) SCC 625 Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd.; recording in the order dated March 06, 2014 that neither party had cited the same and hence after giving an opportunity to the parties to advance arguments in light of the law declared in the said decision, the learned Single Judge has held that in view of the law declared by the Supreme Court in Virgo Industries' case, the suit seeking decree for specific performance of Ex.P-1 was barred.

7. Order II Rule 2 of the Code of Civil Procedure reads as under:-

"2. Suit to include the whole claim -

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim - 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.

(3) Omissions to sue for one of several reliefs - 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 relief so omitted.

Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."

8. The task would obviously be apparently simple. To see the cause of action on which the suits filed by Lakhbir Singh were founded; and if found to be based on the same cause of action, to hold that the second suit was barred.

9. Attempts have been made to define 'a cause of action' but with varying success. Perhaps the concept can better be described than defined. Is it one's right to ask and obtain judicial aid? Is it the statement of facts showing cause for judicial action? Or does it exist independently of a judicial proceeding and consists of that group of facts upon which a claim for judicial aid can be made? Is it the unlawful invasion of a right - the wrong committed? Is it that group of facts showing a primary right-duty and delict? Is it that group of operative fact showing breach of a single right giving cause for the Courts to give relief to the party or parties affected? Or is it that aggregate of operative facts which give rise to one or more legal relations of right-duty enforceable in the Courts? Is it the statement of all facts which if traversed by the opposite party, requiring them to be proved? Is it those facts which would be required to be stated thereby entitling a complaining party to some judicial relief?

10. This decision does not make an attempt to find out as to what should be the best definition of a cause of action, and we would only observe that each definition, or description of a cause of action, emphasizes one element more than the other while retaining the floret based composite wholeness of a cause of action.

11. It being a settled law that the requirement of the Code of Civil Procedure, 1908 enjoins upon a plaintiff to unite all claims arising out of a cause of action in one suit and does not enjoin upon a plaintiff to unite different causes of action in one suit, except in both cases with the leave of the Court to institute a second suit, the problem arises to identify whether on the same set of facts two or more causes of action accrue or arise, or whether two or more reliefs/claims arise out of a singular cause of action.

12. In some cases the distinguishing marks can be found with clarity, whereby a cause of action can be readily ascertained, but many a times amidst the pressure of other legal matters that the Courts encounter it becomes a complicated task, because of the time consuming nature thereof, to find out whether on a given set of facts a singular or a plural cause of action has accrued.

13. With docket explosions in Courts in India, search needs to be made for some rule of thumb or formula which perhaps can be mechanically applied, and if found impossible of being identified, it would still be desirable to make the test as simple and as definite as possible, capable of being properly used under the situations confronted by the Courts.

14. It becomes necessary to define the parameters of a cause of action because only then the distinguishing features consisting of the wrong committed can be identified with clarity. Per necessity, a cause of action would therefore consist of two distinct parts. The first part therefore would

be the statements of the facts from which the plaintiff's primary right can be ascertained and the second part would be the statement of the facts from which the defendant's corresponding duty having arisen; together with the facts which constitute the defendants delict or act of wrong.

15. The law has always tried to protect a person from being unnecessarily harassed by litigation. Its statutory embodiment in the Indian legal system is to be found in Rule 1 of Order II, which requires : 'every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them'. Thus, nobody should be permitted to prosecute two trials where one, properly constituted, would suffice. Of lately we find a class of litigants emerging where they use the machinery of the law to force some desired result by the mere annoyance of litigation. It is the duty of the Court to protect individuals from such a misuse of the legal machinery. There is another reason for the Courts insisting upon the minimum of suits. The public expense in maintaining the open Courts has become considerable and the public has a right to demand that its Courts are not used unnecessarily. A Court cannot be said to be an open Court if there is too large a congestion of suitors at the threshold. Every effort needs to be made to thin out the crowd seeking the use of the Courts.

16. When a Court is confronted with the question whether a previous litigation between the same parties embodied the cause of action on which the subsequent suit has been filed, the group of constitutive or operative facts needs to be identified with a hawk's eye, and the only guiding star would be to see and identify, with precision, the group of constitutive or operative facts. If the essential facts are the same, a little different assembly thereof has to be ignored. The decision reported as (1913) 89 KAN.622

Naugle Vs. Naugle is illustrative of how the issue needs to be approached. The former suit was one for specific performance of a rear estate contract. The second suit was for damages for breach of the contract. The Court held that there was one cause of action and very properly distinguished the case from one of splitting a cause of action as said it was, in fact, using the same cause of action for two purposes. To quote :-

"While a creditor may not sue for one-half his debt at a time and thus split his cause of action, he is not compelled to pursue his remedy at law for damages for a breach of contract, but may seek to secure specific performance only. To do so is not to split his cause of action into parts but to use it for only two possible purposes.......

While the rule against splitting a cause of action is thoroughly well settled, and based largely, if not entirely, upon the ground that a defendant may not be harassed with the expense of repeated litigation for parts of one claim, by a parity of reasoning it must be held that a plaintiff with only one cause of action cannot be permitted to use it more than once in order to recover from the defendant; otherwise the latter might be harassed with as many lawsuit as there were kinds of relief which the plaintiff deemed himself entitled to. While, speaking precisely, the questions of damages was not in fact tried and determined in the former action, still the cause of action, which included a right to recover the damages, was tried out and determined and the plaintiff had his opportunity and day in court to recover on his one cause of action whatever the facts and the law warranted. So, then, the same cause of action had been litigated, and the only reasons that relief by way of damages was not sought or had was the failure of the plaintiffs to use their cause of action as fully in the former action as they might have done."

17. In other words, the relief sought is not a determining factor in distinguishing a cause of action. The decision shows further, that a cause of action may be used for several purposes. It may be used to obtain judgment

for damages for breach of contract; it may be used to get one's money back on breach of contract; it may be used for specific relief as specific performance or rescission or cancellation. Only one cause of action is used for whichever purpose it may be employed. In the same way a trespass may be the basis of an action to recover damages or, in certain cases, to obtain an injunction.

18. Whereas it may be easy to find elements which do not constitute the distinguishing elements of a cause of action, but sometimes it is exceedingly difficult to pick out those elements by which a cause of action can be determined. It is easy for Court to chant : 'of the various elements the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term', but sometimes the chant is difficult to apply. But, its application is easy in actions upon contracts because in such cases the nature of the right and the corresponding duty is well-defined. It is trite that when a contractual right is violated or when the contract is said to be broken, there arises a cause of action.

19. There may be several breaches of the contract but there is still only one cause of action except where the contract consists of a set of many reciprocal obligations which are breached at different points of time.

20. The decision of the Supreme Court in Virgo Industries' case (supra) held a subsequent suit seeking specific performance of an agreement to sell to be barred under Order II Rule 2 of the Code of Civil Procedure because a previous suit had been instituted by the plaintiff seeking a decree for permanent injunction against the defendant concerning two agreements of sale both dated July 27, 2005 in respect of two different parcels of immovable property. Seeking a decree for permanent injunction to restrain the seller from alienating the suit property it was pleaded that the attempt to

alienate the suit property was intended to frustrate the agreement between the parties. In spite of the fact that when the suit praying for a decree of permanent injunction was filed the six month's period fixed under the two agreements for sale for execution of the sale-deeds had not yet expired, the Supreme Court found that the two suits were founded on the same cause of action i.e. an alleged wrong committed by the defendant having effect of evincing the intention of the defendant not to honour its obligation under the two agreements to sell. In para 15 of the opinion, dealing with the contention that when the first suit seeking a decree for permanent injunction was filed the time fixed under the two agreements for sale dated July 27, 2005 had not elapsed, disagreeing with the view taken by the High Court, the Supreme Court held as under:-

"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, cannot per se be dismissed to be 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 2005 (4) SCC 315. 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."

21. Two subsequent decisions of the Supreme Court in which suits seeking specific performance of an agreement to sell were held to be maintainable notwithstanding earlier suits filed seeking a decree for permanent injunction to restrain the sellers from selling, alienating or creating third party rights in the properties which were the subject matter of the agreement to sell, need to be noted by us and ratio of law culled out therefrom, for the reason we find that both decisions reiterate the same principle of law which was stated and applied by the Supreme Court in Virgo Industries' case (supra). Interestingly, both decisions were pronounced on October 29, 2014 by two different Benches of the Supreme Court. The decisions are reported as 2014 (12) SCALE 386 Rathnavathi Vs. Kavita Ganashamdas and 2014 (12) SCALE 435 Inbasegaran Vs. S.Natarajan.

22. The facts of Rathnavathi's case were that the defendant No.2 in the suit seeking decree for specific performance was the original owner of a house and defendant No.1 was the subsequent purchaser. The suit property was purchased by defendant No.2 under a scheme from Bangalore Development Authority and on February 15, 1989 defendant No.2 agreed to

sell the suit property to the plaintiff for a consideration of `3,50,000/- (Rupees Three Lacs Fifty Thousand only) and received `50,000/- (Rupees Fifty Thousand only) as advance sale consideration. Possession had been handed over to the plaintiff. The plaintiff paid the balance sale consideration when possession was handed over to the plaintiff. The plaintiff made improvements in the property and spent money. Alleging that defendant No.1 visited the suit property along with defendant No.2 and other unwanted elements and threatened the plaintiff to dispossess her from the suit land, a suit was filed seeking a decree for permanent injunction to restrain the defendants from interfering in the plaintiff's peaceful possession. The relief in the suit was opposed by the defendants by pleading that balance sale consideration was not paid and hence defendant No.2 cancelled the agreement to sell dated February 15, 1989. Pleading same facts as were pleaded in the earlier suit the plaintiff filed the second suit seeking decree for specific performance as also cancellation of the sale-deed executed by defendant No.2 in favour of defendant No.1. Finding that the suit seeking decree for permanent injunction was founded on the wrong of the threat of dispossession and not a breach of the agreement to sell dated February 15, 1989, the Supreme Court held that the suit seeking specific performance was founded on a separate and distinct cause of action. In paragraph 26 to 36, the Supreme Court held as under:-

"26. Coming first to the legal question as to whether bar contained in Order II Rule 2 of Code of Civil Procedure is attracted so as to non-suit the Plaintiff from filing the suit for specific performance of the agreement, in our considered opinion, the bar is not attracted.

27. At the outset, we consider it apposite to take note of law laid down by the Constitution bench of this Court in Gurbux Singh

v. Bhooralal AIR 1964 SC 1810, wherein this Court while explaining the true scope of Order II Rule 2 of Code of Civil Procedure laid down the parameters as to how and in what circumstances, a plea should be invoked against the Plaintiff. Justice Ayyangar speaking for the Bench held as under:

In order that a plea of a bar under Order 2 Rule 2(3) of the Code of Civil Procedure should succeed the Defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3)that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.....

28. This Court has consistently followed the aforesaid enunciation of law in later years and reference to only one of such recent decisions in Virgo Industries (Eng.) P. Ltd. v. Venturetech Solutions P. Ltd. (2013) 1 SCC 625, would suffice, wherein this Court reiterated the principle of law in following words:

The cardinal requirement for application of the provisions contained in Order II Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. 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 JT 2012 (6) SC

149. 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 Laws of England, (4 th Edition). The following reference from the above work would, therefore, be apt for being extracted herein below:

'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 the 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 on 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.

29. In the instant case when we apply the aforementioned principle, we find that bar contained in Order II Rule 2 is not attracted because of the distinction in the cause of action for filing the two suits. So far as the suit for permanent injunction is concerned, it was based on a threat given to the Plaintiff by the Defendants to dispossess her from the suit house on 2.1.2000 and 9.1.2000. This would be clear from reading Para 17 of the plaint. So far as cause of action to file suit for specific performance of agreement is concerned, the same was based on non performance of agreement dated 15.2.1989 by Defendant No. 2 in Plaintiff's favour despite giving legal notice dated 6.3.2000 to Defendant No. 2 to perform her part.

30. In our considered opinion, both the suits were, therefore, founded on different causes of action and hence could be filed

simultaneously. Indeed even the ingredients to file the suit for permanent injunction are different than that of the suit for specific performance of agreement

31. In case of former, Plaintiff is required to make out the existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the Plaintiff on facts with reference to the suit property as provided in Section 38 of the Specific Relief Act, 1963 (in short "the Act") read with Order 39 Rule 1 & 2 of Code of Civil Procedure. Whereas, in case of the later, Plaintiff is required to plead and prove her continuous readiness and willingness to perform her part of agreement and to further prove that Defendant failed to perform her part of the agreement as contained in Section 16 of The Act.

32. One of the basic requirements for successfully invoking the plea of Order II Rule 2 of Code of Civil Procedure is that the Defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based.

33. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the Defendants (Appellants herein) are not entitled to raise a plea of bar contained in Order II Rule 2 of Code of Civil Procedure to successfully non suit the Plaintiff from prosecuting her suit for specific performance of the agreement against the Defendants.

34. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order II Rule 2 could be allowed to be raised by the Defendants and how it was sustainable on such facts.

35. We cannot accept the submission of learned senior Counsel for the Appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the Plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order II Rule 2 of Code

of Civil Procedure.

36. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the Defendants to raise the plea of bar contained in Order II Rule 2 of Code of Civil Procedure. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and not merely the pleadings. For these reasons, it was not necessary for Plaintiff to obtain any leave from the court as provided in Order II Rule 2 of Code of Civil Procedure for filing the second suit."

23. The facts in Inbasegaran's case (supra) were that S.Natarajan, the defendant was the allottee of a parcel of land under the housing board. The board had handed over possession under a lease-cum-sale agreement obliging S.Natarajan to construct a building on the land. Sale-deed had not been executed by the board in favour of S.Natarajan. (It appears that the sale-deed had to be executed by the Board after S.Natarajan constructed a building on the land). S.Natarajan entered into an agreement to sell the land with Inbasegaran for a sale consideration of `3,84,220/- (Rupees Three Lacs Eighty Four Thousand Two Hundred and Twenty only) and received a sum of `1,00,000/- (Rupees One Lac only) towards part sale consideration and handed over possession of the land. Inbasegaran constructed a building on the land. Alleging that S.Natarajan was trying to unlawfully take possession of the building suit seeking decree for permanent injunction was filed by Inbasegaran against S.Natarajan which was followed soon after by a suit seeking decree for specific performance. Referring to the decision in Virgo Industries' case (supra), in paragraph 16 and 17, after noting a very relevant fact that by the time the suit for specific performance was filed the housing

board had executed the sale-deed in favour of S.Natarajan, the Supreme Court held as under:-

"16. Admittedly, the first suit being O.S. No. 445 of 1985 was filed by the Plaintiff-Appellant for the grant of permanent injunction restraining the Defendant, his agents and servants from interfering with the possession and enjoyment of the suit property by the Plaintiffs either by attempting to trespass into it or in any other manner whatsoever. Besides other facts, it was pleaded that in pursuance of the sale agreement the Plaintiff took possession of the suit plot from the Defendant and began construction of Kalyana Mahal. It was alleged by the Plaintiff that the Defendant with an ulterior malafide motive and intention of extracting more money was representing to the Plaintiffs that he would execute the sale deed after getting the sale deed from the Housing Board and after completion of the construction of the building. With that ulterior motive, the Defendant tried to forcibly take possession of the building constructed by the Plaintiffs and threatened the Plaintiffs' worker to remove them from the building. The Plaintiffs then gave complaint to the police and in response, the police immediately rushed to the suit property and warned the rowdies not to enter into the building. The Plaintiffs, therefore, pleaded that the Defendant was again arranging to gather unruly elements and to forcibly and unlawfully take possession of the suit property from the Plaintiffs. With that apprehension, the suit was filed mainly on the cause of action which arose when the Defendant attempted to forcibly occupy the suit property by driving away Plaintiffs' workers and that the Defendant was arranging to forcibly and unlawfully take possession of the suit property. The Defendant, in his written statement, denied each and every allegation and stated that building was constructed by him and in fact the Plaintiffs attempted to forcibly take possession of the building.

17. In the subsequent suit filed by the Plaintiff being O.S. No. 252 of 1986, a decree for specific performance of the agreement was claimed on the ground inter alia that the Defendant in the earlier suit took a defence that the sale agreement was allegedly given up or dropped by the Plaintiff.

The cause of action, as pleaded by the Plaintiff in the subsequent suit, arose when Defendant-Respondent disclosed the transfer made by Housing Board in his favour and finally when the Defendant was exhibiting an intention of not performing his part of the sale agreement and in reply to the lawyer's notice the Defendant made a false allegation and denied to execute the sale deed as per the agreement."

24. In the instant case the agreement to sell dated November 18, 2006 clearly records that the sale deed would be executed latest by August 15, 2007. Covenant 3 of the agreement to sell enjoins upon Arun Khanna to deliver vacant possession of the property agreed to be sold to Lakhbir Singh. When Lakhbir Singh instituted the suit on September 26, 2007 seeking decree of permanent injunction against Arun Khanna, the agreement by which sale deed had to be executed i.e. August 15, 2007 was a date in the past. In the plaint Lakhbir Singh made pleadings in paragraphs 4 to 9, which have succinctly been noted by the learned Single Judge in para 16(viii) of the impugned decision and we simply highlight that the distillate of the said pleadings by Lakhbir Singh would show that he has unequivocally pleaded that on July 05, 2007 Arun Khanna, by sending a legal notice alleging that Lakhbir Singh was in default of the agreement to sell and hence Arun Khanna had revoked the same and had forfeited the money received by him under and pursuant to the agreement to sell, had breached his obligation under the contract and his attempt to sell the suit property would jeopardize the interest of the plaintiff. Thus, it has to be held that a singular cause of action accrued in favour of Lakhbir Singh for the alleged breach committed by Arun Khanna and two reliefs were available to him under the singular cause of action. The first was to seek the execution of the sale deed pursuant to the agreement to sell and the second for delivery of vacant possession of the suit property. Not only the

agreement to sell make it an obligation of the seller to deliver vacant physical possession of the suit property but even otherwise as per Section 108 of the Transfer of Property Act upon sale of immovable property the seller is bound to put the purchaser in possession of the property sold, and if the possession is with the seller, to hand over vacant physical possession and if the property is in occupation of a third party, to deliver symbolic possession.

25. We note that the learned Single Judge has recorded that Arun Khanna, who had admitted to have received `52,00,000/- (Rupees Fifty Two Lacs only) from Lakhbir Singh had volunteered to return the same, but Lakhbir Singh had refused to accept the same. Said offer by Arun Khanna through his counsel during arguments in the appeal was not accepted by Lakhbir Singh.

26. Since the view taken by the learned Single Judge is in conformity with the law declared by the Supreme Court on the issue which arose for consideration, we dismiss the appeal, leaving the parties to bear their own costs in the appeal.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE JULY 23, 2015 mamta