Ibrahim Kodi Mohammed vs Smt. Shanaz
2024 Latest Caselaw 12514 Kant

Karnataka High Court

Ibrahim Kodi Mohammed vs Smt. Shanaz on 5 June, 2024

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                                                     NC: 2024:KHC:19440
                                                   MFA No. 7796 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 5TH DAY OF JUNE, 2024

                                        BEFORE
                         THE HON'BLE MR JUSTICE R. NATARAJ
                  MISCELLANEOUS FIRST APPEAL NO.7796 OF 2023 ()
                BETWEEN:

                IBRAHIM KODI MOHAMMED
                S/O LATE KODI MOHAMMED,
                AGED ABOUT 72 YEARS,
                R/O TIP TOP MANSION,
                1ST CROSS, JANNATH NAGAR,
                SAGAR TOWN,
                SHIVAMOGGA DIST.

                                                           ...APPELLANT
                (BY SRI. PRASAD B. S., ADVOCATE)

                AND:

                SMT. SHANAZ
                W/O BASHEER AHAMED,
                AGED ABOUT 44 YEARS,
Digitally       R/O NEAR AGHORESHWARA TEMPLE ROAD,
signed by       IKKERI, KALMANE POST, SAGARA,
RENUKA
                SHIVAMOGGA DIST.
Location:
High Court Of
Karnataka                                                ...RESPONDENT
                (BY SRI. GIRISH R., ADVOCATE)

                     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                ORDER 43 RULE 1(R) OF CPC, AGAINST THE ORDER DATED
                20.09.2023 PASSED ON I.A. NO. II IN O.S.NO. 107/2023 ON
                THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
                JMFC, SHIVAMOGGA, DISMISSING I.A. NO.2 FILED UNDER
                ORDER 94(C), 151 READ WITH ORDER 39 RULE 1 AND 2 OF
                CPC.
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                                              NC: 2024:KHC:19440
                                            MFA No. 7796 of 2023




     THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The plaintiff in O.S.No.107/2023 on the file of the II

Additional Senior Civil Judge and JMFC, Shivamogga

(henceforth referred to as 'Trial Court') has filed this

appeal challenging the correctness of an order dated

20.09.2023 passed therein by which, an application

(I.A.No.II) filed by him under Sections 94(c), 151 read

with Order XXXIX Rules 1 and 2 of CPC was rejected and

he was directed to produce certain documents relied upon

by him.

2. The suit in O.S.No.107/2023 was filed for

specific performance of oral agreement of sale dated

09.04.2020 (agreement of sale dated 18.12.2020)

whereby the defendant had allegedly agreed to convey the

suit properties for a total sale consideration of

Rs.23,02,92,000/-. The plaintiff contended that the

defendant was his daughter-in-law and was the owner of

the suit properties. The plaintiff claimed that he intended

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to develop his own properties which lay adjacent to the

suit properties into house sites. The defendant also

desired to develop the suit properties but could not do so

due to financial constraints. The plaintiff claimed that the

defendant on coming to know of the desire of the plaintiff

to develop his property, approached him and agreed to

sell the suit properties at the rate of Rs.1,500/- per sq. ft.

The plaintiff contended that as per the discussions that

followed on 09.04.2020, the plaintiff paid a sum of

Rs.15,00,00,000/- by cash to the defendant on

09.04.2020, 15.06.2020 and 19.08.2020, which were all

acknowledged by the defendant under separate receipts.

The plaintiff claimed that he received a notice in

O.S.No.25632/2020, which was filed by a person named

Mohammed Iqbal in respect of the suit properties, where

an interim order was granted. The plaintiff being

interested in the suit properties filed MFA No.4851/2020

challenging the order granted in O.S.No.25632/2020 He

further contended that the defendant convinced the

plaintiff to enter into a written agreement. Consequently,

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an agreement was entered into between the plaintiff and

the defendant on 18.12.2020. The plaintiff claimed that

he paid a further sum of Rs.7,00,00,000/- in cash to the

defendant, which was acknowledged by the defendant.

The plaintiff claimed that in all, he had paid a sum of

Rs.22,00,00,000/- as advance out of sale consideration of

Rs.23,02,92,000/- and the balance sum of

Rs.1,02,92,000/- was supposed to be paid on the date of

registration of a sale deed conveying the properties to the

plaintiff. He further contended that the sale of the suit

properties was to happen only after a layout plan was duly

approved by the competent Development Authority. He

claimed that it was the duty of the defendant to obtain

layout plan as well as the order of release and khatha in

her name at her expenditure. He further claimed that

after the sale agreement was executed on 18.12.2020, the

defendant issued six cheques drawn by the defendant, her

husband and son-in-law, which were to be retained as

security by the plaintiff until the sale deed was executed in

his favour.

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3. The plaintiff claimed that he had paid a sum of

Rs.30,52,660/- to the Shivamogga Urban Development

Authority on the request of the defendant for obtaining

necessary documents such as, development plan etc. The

plaintiff claimed that despite his readiness and willingness

to complete his part of contract, the defendant did not

perform her part. On the contrary, he claimed that a

person named Mr. Mohammed Iqbal had filed a suit in

O.S.No.213/2023 for the relief of specific performance of

contract and for declaration of certain documents as

illegal. He alleged that the defendant was in active touch

with the said Mr. Mohammed Iqbal and was acting adverse

against the interest of plaintiff. He therefore, contended

that the defendant was about to commit the breach of

agreement by not concluding the transaction. With these

and other contentions, he claimed that he was entitled to

the relief of specific performance. Along with the suit, he

filed an application under Order XXXIX Rules 1 and 2 of

CPC for an order of interim injunction to restrain the

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defendant from alienating or transferring or encumbering

the suit properties pending disposal of the suit.

4. The defendant contested the suit and denied

the sale of the suit properties to the plaintiff and also

denied the receipt of a sum of Rs.15,00,00,000/- on

09.04.2020, 15.06.2020 and 19.08.2020. She admitted

that the plaintiff was her father-in-law and contended that

she and her husband were residing away from the plaintiff

for more than 25 years. She contended the plaintiff and

her husband were doing real estate business and when

their relationship was cordial, the defendant was helping

the plaintiff in all real estate ventures. However, upto the

end of 2022-23, the relationship between the husband of

the defendant and the plaintiff was cordial. She claimed

that the defendant in good faith owing to the goodwill with

the plaintiff had executed several documents and papers.

She claimed that the plaintiff was in possession of several

such papers signed by the defendant. She contended that

the suit properties lay adjacent to each other in

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Malavagoppa village. When the relationship between the

plaintiff and the defendant was cordial, the husband of the

defendant and the plaintiff wanted to acquire two blocks of

properties namely, the suit properties and other properties

laying adjacent thereto and to develop them individually or

jointly by submitting a composite development plan to the

Urban Development Authority. The properties acquired by

the plaintiff did not have any access to the connecting

road. The defendant claimed that she acquired the suit

properties by investing her money as well as the money of

her husband. She denied the claim of the plaintiff that a

composite development plan was submitted for

development of the suit properties as well as the

properties of the plaintiff and that the defendant had

agreed to pay the development charges. She contended

that the signatures of the defendant that appeared in the

agreement of sale dated 18.12.2020 and the signatures of

son-in-law of the defendant were all forged and concocted

for the purpose of suit. She also denied the receipt of a

sum of Rs.7,00,00,000/- by cash. She contended that the

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plaintiff who had an axe to grind, had concocted

documents by taking advantage of her signatures on

various documents which were in the possession of the

plaintiff. She specifically and emphatically denied that she

had never executed any agreement of sale much less the

one dated 18.12.2020 and had also not received the sale

consideration as claimed by the plaintiff. She also denied

having parted with the cheques belonging to her and her

husband and son-in-law and claimed that those cheques

were misplaced and were not drawn in favour of the

plaintiff and thus were inchoate and unenforceable. She

contended specifically that the plaintiff had filed suit in

O.S.No.213/2023 for perpetual injunction to restrain her

from alienating the suit properties which was again based

on the sale agreement dated 18.12.2020. She contended

that an application was filed by the plaintiff under Order 2

Rule 2 of CPC in O.S.No.213/2023 and that without

awaiting the orders on the said application, the plaintiff

has filed the present suit for specific performance and

therefore, contended that the suit for specific performance

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itself not was maintainable. The application for interim

injunction filed by the plaintiff was also contested on

similar lines by filing a memo to treat the written

statement as objections to the application.

5. The Trial Court after considering the

contentions urged by the plaintiff as well as the defendant,

held that the plaintiff had claimed that he had paid

Rs.22,00,00,000/- by cash. It perused a notice issued by

the defendant calling upon the plaintiff to produce the

receipts that were allegedly executed by the defendant

and also blank cheques that were allegedly handed over

by the defendant, her husband and her son-in-law. The

Trial Court held that the plaintiff had not produced any

documents to establish his financial ability to pay a sum of

Rs.22,00,00,000/- by cash. It also held that the plaintiff

did not produce documents such as, his source of income,

bank account details and the IT returns to establish that

the plaintiff was in possession of Rs.22,00,00,000/- to pay

the defendant. It also found that the stamp paper on

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which the agreement was drawn was purchased on

21.09.2020, but the agreement was drawn on 18.12.2020

and held that the document was suspicious in view of the

contention of the defendant that she had not executed the

said document. It held that the plaintiff had filed a suit in

O.S.No.213/2023 for perpetual injunction based on a

cause of action that arose under the agreement of sale

dated 18.12.2020. It noticed that an application was filed

by the plaintiff under Order II Rule 2 of CPC in the said

suit seeking leave of the Court to institute a suit for

specific performance. However, the said application was

not considered and disposed off by the Court and without

awaiting the said consideration, the plaintiff had rushed to

the Court seeking specific performance. It therefore held

that the plaintiff did not obtain leave of the Court as

required under Order 2 Rule 2 of CPC. With these findings,

the Trial Court held that the plaintiff did not make out

prima face case for grant of injunction restraining the

defendant from alienating or encumbering suit properties.

It also directed the plaintiff to produce the documents

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namely, the receipts allegedly executed by the defendant

and also six cheques that were handed over by the

defendant to the plaintiff to be retained as the security by

the plaintiff. Being aggrieved by the said order, the

plaintiff is before this Court in this appeal.

6. Learned counsel for the plaintiff contended that

the relationship between the plaintiff and the defendant

and that the suit properties lay adjacent to the properties

of the plaintiff is admitted. He contended that having

regard to the close relationship between the parties, it was

not uncommon for the plaintiff to enter into a transaction

with the defendant to develop the suit properties under an

oral arrangement. He further contends that for the

purpose of ascertaining whether there was prima facie

case, the plaintiff had placed on record the receipts

executed by the defendant acknowledging the receipt of a

sum of Rs.15,00,00,000/-. He further contends that the

plaintiff had drawn a cheque favouring the Shivamogga

Urban Development Authority at the behest of the

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defendant for payment of certain charges for obtaining the

development plan etc. He therefore, contends that the

plaintiff had prima facie proved the lawful agreement of

sale dated 18.12.2020 and therefore the Trial Court ought

to have protected the suit properties being frittered away

by the defendant pending disposal of the suit. Insofar as

the contention that the suit was not maintainable in view

of the specific bar under Order 2 Rule 2 of CPC, the

plaintiff relied upon the judgment of the Apex Court in the

case of Lakshmi alias Bhagyalakshmi and Another Vs.

E.Jayaram (D) by LR. reported in AIR 2013 Supreme

Court 2939 and in the case of Rathnavathi and

Another Vs. Kavita Ganashamdas reported in 2014

AIR SCW 6288.

7. Per contra, learned Senior Counsel representing

the defendant relied upon the judgment of the Apex Court

in the case of Virgo Industries (Eng.) P.Ltd.

Vs. Venturetech Solutions Private Limited reported in

(2013) 1 SCC 625 and contended that the suit for

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specific performance was not maintainable without the

plaintiff obtaining leave under Order 2 Rule 2 of CPC.

8. Learned counsel for the plaintiff submitted that

the plaintiff has now complied the order of the Trial Court

and has produced the receipts executed by the defendant

acknowledging the receipt of a sum of Rs.22,00,00,000/-

and also produced the cheques which the defendant had

handed over to the plaintiff to be retained as security.

9. I have considered the submissions made by the

learned counsel for the plaintiff and the learned counsel

for the defendant.

10. A perusal of the agreement of sale dated

18.12.2020 shows that time was not fixed for completion

of the transaction. On the contrary, the relevant Clause of

the agreement reads as follows:

"F PÀgÁj£À C£ÀéAiÀÄ £Á£ÀÄ ¨ÁQ PÀAæ iÀÄ¥Àwæ ¥s® À zÀ ºÀtªÀ£ÀÄß ¤«ÄäAzÀ ¥Àqz É ÀÄPÉÆAqÀÄ F ªÉÄð£ÀAvÉ ±ÀÄzsÀÞ £ÉÆÃAzÁ¬ÄvÀ PÀAæ iÀÄ¥Àvª Àæ £ À ÀÄß ¤ªÀÄä ºÉ¸j À UÁUÀ°Ã, CxÀªÁ ¤ÃªÀÅ ¸ÀÆa¸ÀĪÀªg À À ºÉ¸j À UÁUÀ°Ã £ÉÆÃAzÁ¬Ä¹PÉÆlÄÖ F ¸ÀA§AzsÀ SÁvÉ zÁR¯ÁzÀ

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£ÀAvÀgz À ° À è £Á£ÀÄ ¤ªÀÄUÉ ¤ÃrgÀĪÀ DgÀÆ ZÉPÀÄÌU¼ À £ À ÄÀ ß ¤ÃªÀÅ £À£U À É AiÀÄxÁ¹ÜwAiÀÄ°è »AwgÀÄV¸ÀĪÀÅzÀPÉÌ M¦àPÉÆArgÀÄwÛÃj. F §UÉÎ £ÀªÀÄä PÀÄlÄA§zÀ°è C£ÁªÀ±ÀåPÀ ªÀÄ£À¸ÁÛ¥PÀ ÉÌ CªÀPÁ±À ªÀiÁrPÉÆqÀ¨ÁgÀzAÉ § ¸ÀzÀÄzÉÝñÀ¢AzÀ ªÀÄvÀÄÛ £À£Àß PÀÄlÄA§zÀªg À À dªÁ¨ÁÝjUÁVAiÀÄÆ, £À£Àß AiÀÄdªÀiÁ£ÀgÁzÀ §¶Ãgï CºÀªÀÄzï ªÀÄvÀÄÛ £À£Àß C½AiÀÄ£ÁzÀ ªÉƺÀªÀÄäzÀ £ÀªÁeï EªÀgÀÄUÀ¼À ¸ÀªÀÄäw ¸ÁQëU¼ À £ À ÀÄß ¸ÀºÁ F PÀAæ iÀÄzÀ PÀgÁjUÉ ºÁQ¹PÉÆnÖgÀÄvÉÃÛ £É."

11. The plaintiff filed a suit in O.S.No.213/2023 for

perpetual injunction whereby the cause of action

mentioned in the suit was as follows:

"26] That the cause of action for the suit arose on 18-12-2020 the date of plaint mentioned agreement to sell was entered into and on 01-02-2023, 02-02- 2023 and 05-02-2023 the date of paper publications and on 01-02-2023 the date of life threat and on 06-02-2023 the date of complaint and on 22-02- 2023 the date of clandestine attempts of the defendants to sell the plaint property and also dire threat by the plaintiff and her henchmen and subsequently in Malavagoppa village, Shivamogga Taluk, Shivamogga District where the suit schedule properties are situated within the jurisdiction of this court. The suit schedule properties are well within the jurisdiction of this Hon'ble court and this Hon'ble court has the pecuniary jurisdiction to try this case."

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12. No doubt, the plaintiff had filed an application

under Order 2 Rule 2 of CPC in the said suit seeking liberty

to file a suit for specific performance. However, the cause

of action as extracted above does not indicate that the

plaintiff had pleaded that the cause of action for the suit

for specific performance had arosen. The plaintiff even

before the application under Order 2 Rule 2 of CPC was

considered, filed the present suit for specific performance

of agreement of sale dated 18.12.2020 and the cause of

action for the present suit is stated as follows:

"27) That the cause of action for the suit arose on 09.04.2020 the date of discussion, on 18-12-2020 the date of plaint mentioned agreement to sell was entered into and 09-04-2020, 15-06-2020 and 19-

08-2020 and 18-12-2020 the date of payments, on 01-02-2023, 02-02-2023 and 05-02-2023 the date of paper publications and on 01-02-2023 the date of life threat and on 06-02-2023 the date of complaint and on 22-02-2023 the date of clandestine attempts of the defendants to sell the plaint property and also dire threat by the plaintiff and her henchmen and on 27-03-2023 the date of receipt of the legal notice and on 06.04.2023 the date of expiry of the date as

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demanded and subsequently in Malavagoppa village, shivamogga Taluk, shivamogga District where the suit schedule properties are situated within the jurisdiction of this court. The suit schedule properties are well within the jurisdiction of this Hon'ble Court and this Hon'ble Court has the pecuniary jurisdiction to try this case."

13. The cause of action for the suit for specific

performance purportedly arose after the plaintiff caused a

notice dated 27/3/2023 demanding specific performance

of the agreement of sale dated 18/12/2020. Thus, the

cause of action for the suit for perpetual injunction was

clearly distinct and different from the cause of action for

the suit for specific performance. A perusal of the Order II

Rule 2 of CPC leaves no doubt that a party approaching

the Court on a specific cause of action, is bound to seek all

the relief to which he is entitled to as on that date. Order 2

Rule 1 of CPC reads as follows:

"Frame of suit.-- 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."

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14. Order 2 Rule 2 of CPC reads as follows:

"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."

15. Therefore, if the cause of action for the suit in

O.S.No.213/2023 and the cause of action for the suit in

O.S.No.107/2023 were the same, then the prohibition

under Order 2 Rule 2 of CPC would kick in and the suit

filed for specific performance would be barred. The Hon'ble

Apex Court in similar circumstances, had considered the

application of Order 2 Rule 2 of CPC in the case of Gurbux

Singh Vs. Bhoorala reported in AIR 1964 SC 1810

where it was held as follows:

"6. In order that a plea of a bar under O.2 R. 2(3), Civil Procedure Code 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

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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. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O.2 R.2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identify of the cause of action in the two suits. It is common ground that the pleadings in C.S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O.2 R.2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the

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record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the sage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under O.2 R.2 Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read:

" The Plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two court have, however, freely cited for the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court."

It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleading in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier shit" is obviously inaccurate as

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the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O.2 R.2, Civil Procedure Code. Not can we find any basis for the suggestion that the learned Judge had admitted there documents at the second appeal stage under O.41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O.41 R. 27, Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit."

16. This view of the Apex Court is reiterated in the

latest judgment of the Supreme Court in the case of

Rathnavathi supra. The reliance placed by the learned

Senior Counsel on Virgo Industries supra is

distinguishable on facts as in that case, the cause of action

for both the suits were similar. Therefore, the finding of

the Trial Court that the suit filed by the plaintiff for specific

performance appeared to be barred under Order II Rule 2

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of CPC is liable to be set at naught. The plaintiff had

claimed that the defendant had executed the agreement of

sale dated 18.12.2020 and that he had paid a sum of

Rs.22,00,00,000/- to the defendant which was

acknowledged by her from time to time. He also stated

that at the request of defendant, a sum of Rs.30,52,660/-

was paid to Shivamogga Urban Development Authority

from his account at State Bank of India, Sagar. The

plaintiff is the father-in-law of the defendant and the

defendant also admitted that the plaintiff was in the

business of development of real estate and that the

plaintiff and defendant had purchased the properties with

an intent to develop them. Therefore, since the plaintiff

had made out a triable cause, the Trial Court must have

considered the case of the plaintiff based on the prima

facie findings observed by it. If the plaintiff had paid a

sum of Rs.22,00,00,000/- and a sum of Rs.30,52,660/-,

the interest of the plaintiff cannot be put at stake and if

third party interests are created there is every possibility

of multiplicity of proceedings and gullible purchasers would

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fall prey. Now that the plaintiff has stated that he has

placed on record the originals of the receipts executed by

the defendant as well as the cheques that the defendant

handed over to the plaintiff to be retained as security, the

Trial Court has to look into the same and dispose off the

application filed by the plaintiff for interim injunction.

17. In that view of the matter, this appeal is

allowed and the impugned order passed by the Trial

Court is set aside and the Trial Court is directed to re-

consider the application filed by the plaintiff in accordance

with law, particularly in view of the documents produced

by the plaintiff as directed by the Trial Court in the

impugned order.

18. Any observations made by this Court during the

course of this order shall not affect the Trial Court in

disposing the application on merits. Since the appeal is

allowed, until the Trial Court disposes off the application

afresh, the respondent is restrained from alienating or

encumbering the suit properties.

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All contentions are left open.

In view of disposal of appeal, I.A.No.2/2023 stands

disposed off.

Sd/-

JUDGE

PMR/RSP CT:SI