Kerala High Court
Salim vs Muhammed M Nasarulla on 3 February, 2025
C.R.P. No.324 of 2024 1
2025:KER:8539
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
CRP NO. 324 OF 2024
AGAINST THE ORDER DATED 26.07.2024 IN IA NO.10/2024 IN
OS NO.359 OF 2017 OF MUNSIFF COURT, PUNALUR
REVISION PETITIONER/PETITIONER/DEFENDANT:
SALIM, AGED 57 YEARS
S/O MUHAMMED IBRAHIM, KIZHAKKETHIL VEEDU,
THAZAMEL MURI, ANCHAL VILLAGE, PUNALUR TALUK,
KOLLAM, PIN - 691306
BY ADV PRAKASH MATHEW
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 MUHAMMED M NASARULLA, AGED 43 YEARS
S/O HANEEFA, JUMAILA MANZIL, VENKULAM,
EDAVA VILLAGE, VARKALA., PIN - 695310
2 SHABUNA BEGUM, AGED 34 YEARS
W/O NAZARULLA, JUMAILA MANZIL, VENKULAM,
EDAVA VILLAGE, VARKALA., PIN - 695310
BY ADVS.
ABDUL JAWAD.K
A.GRANCY JOSE(K/1204-M/2010)
AYSHA A.A.(K/000878/2024)
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 06.11.2024, THE COURT ON 03.02.2025 DELIVERED THE
FOLLOWING:
C.R.P. No.324 of 2024 2
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VIJU ABRAHAM, J.
.................................................................
C.R.P. No.324 of 2024
.................................................................
Dated this the 3rd day of February, 2025
ORDER
The above revision petition is filed challenging Annexure-
P13 order dated 26.07.2024 whereby Annexure-P11 review petition
was dismissed.
2. Brief facts necessary for disposal of the revision petition are
as follows: Petitioner is the sole defendant in O.S. No.359 of 2017,
filed by the respondents before the Munsiff Court, Punalur seeking the
relief of specific performance of Annexure-P1 agreement for sale
entered into between the parties on 10.05.2016 wherein a period of
six months from the date of agreement was stipulated for the due
performance of the agreement. It is the contention of the petitioner
that on 01.092016, the respondents had filed an earlier suit as
O.S.No.372 of 2016 seeking permanent prohibitory injunction, on the
basis of Annexure-P1 agreement for sale itself. It is alleged in the
said suit that during the pendency of the Annexure-P1 agreement for
sale, the petitioner is planning to sell the property to strangers and
thereupon Annexure-P2 ad interim injunction was granted.
Subsequent to obtaining Annexure-P2 in O.S.No.372 of 2016
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Annexure-P3 lawyer notice was issued demanding execution of
Annexure-P1 and on failure to comply with the same the respondents
will be pursuing a suit for specific performance. Thereafter as per
Annexure-P4 O.S.No.372 of 2016 was dismissed for default.
Subsequent to the issuance of Annexure-P3 notice, the respondents
filed O.S.No.359 of 2017 on 11.10.2017 seeking specific performance
of the Annexure-P1 agreement for sale with an alternative relief of
recovery of Rs.4,00,000/- advance amount which is produced as
Annexure-P5. It is contended that all the reliefs sought in O.S.No.359
of 2017 are predicated on Annexure-P1 agreement for sale. The
petitioner entered appearance in the suit and disputed the
maintainability of the suit itself. Thereupon Annexure-P7 application
was filed as I.A.No.3 of 2023 seeking for rejection of the plaint on the
ground that the relief sought in the subsequent suit is barred under
Order II Rule 2 CPC, to which Annexure-P8 objection was preferred
by the respondents. The main contention raised by the respondents in
Annexure-P8 objection is that the cause of action and relief sought in
Annexure-P5 plaint are distinct, warranting the dismissal of the
application. The trial court dismissed the said application as per
Annexure-P9. Thereupon the petitioner has approached this Court
challenging Annexure-P9 by filing O.P.(C) No.7 of 2024, this Court
was not inclined to interfere with the said order and the original
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petition was dismissed as withdrawn as per Annexure-P10 order.
After Annexure-P10 was issued petitioner has filed Annexure-P11
review petition seeking review of Annexure-P9 order, to which
Annexure-P12 objection was filed. The trial court based on an
erroneous interpretation of law and facts dismissed the same as per
Annexure-P13. It is assailing Annexure-P13 order that the present
revision petition is filed.
3. The application filed relying on Order II Rule 2(3) CPC was
earlier rejected by the trial court by Annexure-P9 order essentially
relying on the judgment of the Apex Court in Sucha Singh Sodhi (d)
through Lrs. v. Baldev Raj Walla and another, AIR 2018 SC 2241.
The trial court based on the judgment of the Apex Court in Sucha
Singh Sodhi's case cited supra held that cause of action to claim the
relief in a suit for permanent prohibitory injunction and in a suit for
specific performance are totally different and the second suit for
specific performance is not barred. Though a review was attempted
the trial court by Annexure-P13 order dismissed the same holding that
the order is open for review only if there is a mistake or error apparent
on the face of record and such a circumstance does not exist in the
present case and therefore there is no scope for reviewing the order.
4. The respondents entered appearance through counsel and
submitted that the trial court has rightly relied on the judgment in
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Sucha Singh Sodhi's case cited supra and the cause of action for
instituting a suit for permanent prohibitory injunction and a suit for
specific performance is totally different and therefore the contention of
the petitioner that the second suit seeking specific performance is
barred cannot be accepted.
5. I have heard the rival contentions on both sides.
6. Certain dates which are relevant for proper disposal of the
revision petition are as follows: Annexure-P1 agreement for sale was
executed on 10.05.2016 and the time stipulated for execution of the
sale deed is six months from the date of agreement. Therefore the
sale deed ought to have been executed on or before 10.11.2016.
Earlier suit filed as O.S.No.372 of 2016 was filed on 01.09.2016. A
perusal of Annexure-P2 plaint would show that the suit has been filed
only on 01.09.2016 which revealed that the respondents/plaintiffs are
ever ready to execute the sale deed but the petitioner/defendant was
adjourning the execution proceedings and on 30.08.2016 the plaintiffs
came to know that the defendant was making speedy preparation to
alienate the plaint schedule property by ignoring Annexure-P1
agreement for sale dated 10.05.2016. Though Annexure-P2
O.S.No.372 of 2016 was filed seeking perpetual injunction restraining
the defendant or any person claiming through them from alienating
the plaint schedule property or encumbering the same, the plaintiffs
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have reserved their right to sue against the defendant against wilful
failure to perform his part of the agreement dated 10.05.2016 and for
the said purpose leave of the court may be granted as and when
required. But, it could be seen that O.S.No.372 of 2016 was
dismissed as per Annexure-P4 stating that "Plaintiff called. Absent.
No reasons shown. No applications filed. Hence the suit is dismissed
for default." It was thereafter never restored to file. It is thereafter that
O.S.No.359 of 2017 seeking specific performance of contract was
filed on 11.10.2017, but without seeking leave of the court. A perusal
of paragraph 16 of the plaint would reveal that the cause of action for
the suit has arisen on 10.05.2016 the date of agreement and the date
of advance payment, on 19.08.2016 and 25.08.2016 the dates of
demands made by the plaintiffs to the defendant, 26.10.2016 the date
of notice issued by the plaintiffs to the defendant, on 27.10.2016 the
date of the receipt of the said notice by the defendant, and on
09.11.2016 and on 14.09.2017 the dates of last demands made by
the plaintiffs to the defendant. Even going by the averment in
Annexure-P5 plaint the cause of action for filing the suit has arisen
even at the time of filing Annexure-P2 suit, ie. on 01.09.2016.
7. A perusal of Annexure-P9 order would reveal that the court
declined to reject the plaint solely relying on the judgment of the Apex
Court in Sucha Singh Sodhi's case cited supra. Learned counsel for
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the revision petitioner would submit that Annexure-P9 order was
issued without taking into consideration the decision of the Apex
Court in Virgo Industries (Eng.) P. Ltd.(M/s.) v. M/s.Venturetech
Solutions P. Ltd., 2012 KHC 4492 and the decisions of this Court in
Sasidharan Nair v. Kunju Mohammed Unni and others, 2017 (4)
KHC 246 and Mathew and others v. Elikutty and others, 2019 (2)
KHC 160. Learned counsel for the revision petitioner would submit
that going by the facts of the present case after the agreement for
sale was executed, when the petitioner planned to sell the property to
strangers a suit, O.S.No.372 of 2016 was filed seeking permanent
prohibitory injunction. But going by the facts of the case in Sucha
Singh Sodhi's case cited supra it could be seen that after the
agreement for sale was executed the party was put in possession of
the suit premises and when there was a threat to dispossess him a
suit was filed seeking permanent injunction against the defendant
restraining him from interfering with his possession over the suit
property. Another aspect to be considered is that in Sucha Singh
Sodhi's case cited supra after the said suit was filed a statement was
made that he want to withdraw the civil suit and the trial court has
allowed the original plaintiff to withdraw the suit as per a written order.
It is thereafter that subsequent suit seeking specific performance of
the agreement was filed. It is in the said context that the court held
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that filing of the second suit is not hit by the provisions of Order II Rule
2 CPC. Whereas in the decision in Virgo Industries's case cited
supra the facts of the case was such that there was an earlier suit for
injunction but the possession of the property has not been handed
over to the party therein and thereafter a subsequent suit for specific
performance was filed and the court held that the second suit filed
seeking specific performance was barred by the provisions of Order II
Rule 2 CPC and the court has specifically found that it is without
obtaining leave of the court that the second suit seeking specific
performance was filed. This Court in Sasidharan Nair's case cited
supra was considering a case where there was an earlier suit filed
seeking permanent prohibitory injunction from alienating the plaint
schedule property in favour of third party and against committing
waste in the property and thereafter a subsequent suit seeking
specific performance was filed, wherein this Court has considered the
decisions in Ratnavathi v. Kavita Ganashamdas, 2014 KHC 4694
and Inbasagaran and another v. S.Natarajan, 2014 KHC 4694,
whereby the decision in Virgo Industries's case cited supra was
distinguished holding that the bar under Order II Rule 2 CPC will not
operate to a suit for specific performance if the earlier suit was one for
a decree of injunction against dispossession only. This Court in
Mathew's case cited supra also held that if the plaintiff omits, without
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obtaining leave of the suit to sue in respect of all reliefs arising out of
a cause of action available to him at the time of filing suit, he shall not
afterwards sue for any relief so omitted.
8. In the light of the judgments referred above, it is the case of
the revision petitioner that it is only in cases where the possession
was handed over to the party based on the agreement for sale and a
suit filed apprehending dispossession from the property that the bar
for filing of a subsequent suit as provided in Order II Rule 2 CPC will
not be applicable. But as held by the Apex Court in Virgo
Industries's case cited supra and this Court in Sasidharan Nair's
case cited supra it is the contention of the learned counsel for the
petitioner that this is a case where possession has not been handed
over and that suit seeking injunction was filed only on the
apprehension that the property will be alienated in the meanwhile and
therefore the bar under Order II Rule 2 CPC will definitely have
application. Therefore it is the contention of the revision petitioner that
the trial court failed to consider that Sucha Singh Sodhi's case cited
supra was delivered on a different set of facts. It is to be seen that
challenging Annexure-P9 order O.P.(C) No.7 of 2024 was filed and
the same was dismissed as withdrawn as per order dated 02.04.2024.
Though there is a mention that the court was not inclined to allow the
original petition and dismissed the same, based on the submission
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made by the learned counsel for the petitioner the case is permitted to
be withdrawn. It is thereafter that the petitioner filed Annexure-P11
application seeking to review Annexure-P9 order, which has now
been rejected by Annexure-P13 order holding that there is no reason
for reviewing the order. It is submitted by the learned counsel for
revision petitioner that the petition seeking review was filed
contending that the decision in Sucha Singh Sodhi's case cited
supra would not apply to the facts and circumstances of the case and
that the issue raised by the petitioner is squarely covered by the
judgments in Virgo Industries's case cited supra and this Court in
Sasidharan Nair's case cited supra and these decisions were not
taken into consideration while rejecting the request of the petitioner as
per Annexure-P9. The reason stated for dismissing the review
petition is that the same would amount to rehearing of the case and
that a perusal of Annexure-P10 judgment of this Court would show
that this Court was not inclined to interfere with Annexure-P9 order. I
am of the view that the trial court ought to have considered the review
petition on its merits rather than relying on the observation made in
Annexure-P10 judgment that the court was not inclined to interfere
with Annexure-P9. The court ought to have considered the contention
of the petitioner that whether in the facts and circumstances of the
present case the judgment in Sucha Singh Sodhi's case cited supra
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would apply.
9. Yet another contention raised by the revision petitioner is
based on the judgment of this Court in Santha v. State of Kerala,
2002 KHC 483 wherein it is held that the decision of a court
overlooking the decision of the Supreme Court constitutes an error
apparent on the face of the records justifying review. Though strictly
Annexure-P9 order was not overlooking a decision of the Supreme
Court, but in fact relying on a judgment of the Apex Court the
contention of the petitioner is that the judgments in Virgo Industries's
case cited supra and Sasidharan Nair's case cited supra would apply
in the facts and circumstances of the present case and the same was
not taken into consideration while dismissing the review petition.
10. Order XLVII Rule 1 CPC deals with review of a judgment.
Any aggrieved person could seek for a review upon discovery of a
new and important matter or evidence or on account of some mistake
or error apparent on the face of the record or for any other sufficient
reason. I am satisfied that sufficient grounds have been stated by the
revision petitioner for seeking review based on the observation made
by this Court as stated above. Therefore it was incumbent on the part
of the trial court to consider whether the contention of the petitioner
that the judgment in Sucha Singh Sodhi's case cited supra would not
apply in the facts and circumstances of the present case and what
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would apply is the decisions in Virgo Industries's case cited supra
and Sasidharan Nair's case cited supra by the petitioner.
In view of the above, Annexure-P13 order is set aside with a
consequential direction to the trial court to re-consider Annexure-P11
application seeking review on merits after considering the rival
contentions of both sides. Accordingly the civil revision petition is
disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
2025:KER:8539
PETITIONER ANNEXURES
Annexure P 1 THE TRUE COPY OF THE AGREEMENT DATED 10-
5-2016
Annexure P2 TRUE COPY OF OS 372/2016 DATED 1-9-2016
Annexure P3 THE TRUE COPY OF THE ADVOCATE NOTICE
DATED 25-10-2016
Annexure P4 A TRUE COPY OF THE JUDGMENT IN OS
372/2016 DATED 3- 3-2021
Annexure P5 THE TRUE COPY OF OS 359/2017 DATED 11-10-
Annexure P6 THE TRUE COPY OF THE WRITTEN STATEMENT IN
OS 359/2017 DATED 16-3-2019 FILED BY THE
PETITIONER
Annexure P7 THE TRUE COPY OF THE IA 3/2023 DATED 11-
10- 2023
Annexure P 8 THE TRUE COPY THE OBJECTION DATED 19-10-
2023 FILED BY THE RESPONDENTS
Annexure P 9 THE TRUE COPY OF THE ORDER IN IA 3/2023
DATED 27-11-2023
Annexure P 10 THE TRUE COPY OF THE ORDER IN OP 7/2024
DATED 02-04-2024
Annexure P11 THE TRUE COPY OF THE REVIEW PETITION
FILED BY THE PETITIONER DATED 6-4-2024
Annexure P12 THE TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENTS DATED 30-5-2024
Annexure P13 CERTIFIED COPY OF THE ORDER DATED 26- 7-
