Kerala High Court
N. Rajamony vs Saradamma on 10 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:19769
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. R.
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
RFA NO. 189 OF 2016 (I)
AGAINST THE JUDGMENT DATED 31.10.2015 IN OS NO.1 OF 2011 OF
SUB COURT, ALAPPUZHA
-----
APPELLANT/PLAINTIFF:
N. RAJAMONY,
AGED 65, S/O.NALLATHAMPI, ANTONY VILLA, MOHINI NIVAS,
MULLAKKAL VILLAGE, ALAPPUZHA, PIN - 688 001.
BY ADV. MANJU ANTONEY
BY ADV. R.ANAS MUHAMMED SHAMNAD
RESPONDENTS/DEFENDANTS:
1 SARADAMMA, [DIED; LRs RECORDED AND IMPLEADED]
AGED 81, W/O.RAMAKRISHNA PANICKER, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN CODE - 688 006.
2 RAVEENDRAN NAIR,
AGED 59, S/O.SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN CODE - 688 006.
3 SASIDHARAN NAIR,
AGED 51, S/O.SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN - 688 006.
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RFA NO. 189 OF 2016 -2-
4 SANTHOSH KUMAR,
AGED 40, S/O.SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN - 688 006.
5 NAHAS MOHAMMED YOUSUFF,
AGED 48, S/O.MOHAMMED YOUSUFF, AJI, LAJANATH WARD,
ALAPPUZHA WEST VILLAGE, ALAPPUZHA, PIN CODE - 688 001.
6 SIMI NAHAS,
AGED 37, W/O.NAHAS MOHAMMED YOUSUFF, AJI,
LAJANATH WARD, ALAPPUZHA WEST VILLAGE, ALAPPUZHA,
PIN CODE - 688 001.
7 SREEKUMAR,
AGED 46, S/O.SARADAMMA, "POURNAMI" VEEDU,
AVALOOKKUNNU P.O., ALAPPUZHA, PIN CODE - 688 006.
* ADDL. RESPONDENTS 8 TO 10
ADDL. R8 RADHAKRISHNAN,
AGED 65, S/O.LATE SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA ,
PIN CODE - 688 006.
ADDL. R9 VIJAYA,
AGED 49, D/O.LATE SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN CODE - 688 006.
ADDL. R10 SATHI,
AGED 41, D/O.LATE SARADAMMA, SREEVILASOM VEEDU,
ARYADU SOUTH VILLAGE, AVALOOKKUNNU P.O., ALAPPUZHA,
PIN CODE - 688 006.
*[RESPONDENTS 2 TO 4 AND 7 IN THE APPEAL ARE RECORDED
AS LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS
PER ORDER DATED 11/01/2022 IN I.A. 1/2021 AND LEGAL
REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 10 AS PER
ORDER DATED 11/01/2022 IN IA 3/2021.]
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RFA NO. 189 OF 2016 -3-
BY ADVS.
DIPU JAMES - R1
GEORGE MATHEW - R1
K.S.HARIHARAPUTHRAN - R1
M.D.SASIKUMARAN - R1
SUNIL KUMAR A.G. - R1
SAJITHA SIDHIK - R1, R6
V.K.SIDHIK - R5, R6
SAMEER K.M. BASHEER - R5
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
10.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN & C. R.
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R. F. A. No. 189 of 2016
= = = = = = = = = = = = = = = = = =
Dated this the 10th day of March, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance, with an
alternate prayer for return of advance sale
consideration, was dismissed by the trial court. The
plaintiff is in appeal.
2. Ext.A1 agreement dated 31.05.2010 was entered
into between the plaintiffs and defendants 1 to 3 for
the sale of the plaint schedule property to the
plaintiff. The total sale consideration fixed was ₹ 135
lakhs. An amount of ₹ 40 lakhs was paid on the date of
Ext.A1, towards advance sale consideration. The period
fixed for performance was four months. The plaint
schedule property belonged jointly to defendants 1 to 4;
the first defendant is the mother, and she is entitled
to 70%, and defendants 2 to 4, who are her sons, are
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entitled to 10% shares each. The 4th defendant was not a
party to Ext.A1 agreement. It was the term of the
agreement that defendants 1 to 3 would cause a partition
deed to be executed along with the 4 th defendant,
whereunder, the plaint schedule property would be got
allotted exclusively to defendants 1 to 3. According to
the plaintiff, defendants 1 to 3 failed to honour the
agreement. Though defendants 1 to 4 entered into a
partition deed, in contravention of the terms of Ext.A1,
a portion of the property was allotted to the 4 th
defendant. He conveyed a portion of such property to
defendants 5 and 6. The first defendant-mother conveyed
her share under the partition to her another son, the
7th defendant.
3. On 11.11.2010, defendants 2 and 3 conveyed a
portion of the property to the plaintiff. On coming to
know about the attempt of the defendants to alienate the
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remaining property in breach of the agreement, the
plaintiff filed a suit as OS 677/2010 for a prohibitory
injunction not to alienate the property to strangers.
Subsequently, after the expiry of the period for
performance fixed under Ext.A1, the present suit was
filed seeking specific performance, with an alternate
prayer for return of the advance sale consideration. It
was alleged that, after the conveyances in his favour by
defendants 2 and 3, the balance advance consideration
with defendants 1 to 3 is ₹ 17 lakhs. The suit OS
677/2010 was withdrawn, with leave of the Court, to
prosecute the suit for specific performance.
4. Defendants 1 to 3 contended that the suit is
barred under Order II Rule 2 of the Code of Civil
Procedure (CPC). It was further contended that the
plaintiff was not ready and willing to perform the
agreement. The 4th defendant contended that the
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agreement for sale would not bind him or his interest
over the property. Defendants 5 and 6 claimed to be bona
fide purchasers for value.
5. The trial court found that the plaintiff failed
to prove his readiness to perform the agreement and held
that he is not entitled for the relief of specific
performance. Regarding the alternate prayer for return
of advance sale consideration, it was found that an
amount of ₹ 17 lakhs, being part of the advance sale
consideration, is liable to be returned. However, it was
held that the suit is barred under Order II Rule 2 CPC.
Accordingly, the suit was dismissed.
6. We have heard the learned counsel on either
side.
7. Before this Court, the parties confined their
arguments to the finding of the trial court on the bar
of the suit under Order II Rule 2 CPC.
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8. The suit for specific performance is barred
under Order II Rule 2 CPC, in the light of the earlier
suit for prohibitory injunction, is the contention.
Order II Rule 2 reads thus: -
"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) Omission 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."
For our case what is relevant is R.2(3). As per the
provision:
(i) There must be a cause of action.
(ii) More than one relief could be claimed on that
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cause of action.
(iii) In the suit on that cause of action, the
plaintiff omits some relief/s.
(iv) He does not seek leave of the court to sue for
such omitted reliefs at a later stage.
(iv) In the event as above, the plaintiff cannot
subsequently institute a suit for the omitted reliefs.
9. As is evident from the above, to find out
whether the suit is barred under Or.II R.2, what is
relevant is the "cause of action". Decisions are legion
explaining the meaning of "cause of action", and we do
not consider it necessary to elaborate on the same. The
Apex Court in Rajasthan High Court Advocates Association Vs. Union of India
(AIR 2001 SC 416) held,
"The expression 'cause of action' has acquired a judicially settled meaning.
In the restricted sense, 'cause of action' means the circumstances forming the
infraction of the right or the immediate occasion for the action. In the wider
sense, it means the necessary conditions for the maintenance of the suit,
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including not only the infraction of the right, but the infraction coupled with
the right itself. Compendiously, the expression means every fact, which it
would be necessary for the plaintiff to prove, if traversed, in order to support
his right to the judgment of the court."
10. In the present case, when the defendants
attempted to alienate the property to third parties in
violation of Ext.A1 agreement, a suit was filed for
prohibitory injunction against alienation. In the said
suit, should the plaintiff have sought the relief of
specific performance also, is the question. If the
answer is 'yes', then the present suit would be barred
under Or.II R.2.
11. The Apex Court in Cuddalore Powergen Corporation Ltd. v.
Chemplast Cuddalore Vinyls Limited and Anr. (2025 SCC OnLine SC 82), analysed
in extenso about the "cause of action" in a suit for
specific performance and a suit for prohibitory
injunction against alienation. The Apex Court concluded
that, when the plaintiff alleges that the defendant-
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vendor is attempting to alienate the property to a third
party, it is an allegation of breach of the agreement.
The breach gives a cause of action to the plaintiff to
sue for reliefs including specific performance. If upon
such cause of action, the plaintiff chooses to institute
a suit solely for a prohibitory injunction against
alienation, he is bound to seek leave of the Court in
terms of Order II Rule 2(3) to institute a subsequent
suit for specific performance. On his failure to seek
for such leave, he will be, under the provision,
precluded from instituting a subsequent suit claiming
the relief of specific performance.
12. In Cuddalore Powergen Corporation Ltd.(supra), the Apex
Court took note of its earlier judgments in Virgo Industries
(Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. [(2013) 1 SCC 625] and Vurimi
Pullarao v. Vemari Venkata Radharani [(2020) 14 SCC 110], wherein the
plaintiff had notice of the defendant's refusal to
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perform the contract even prior to the institution of
the first suit for injunction, and also the judgments in
Inbasagaran v. S. Natarajan [(2015) 11 SCC 12] and Rathnavathi v. Kavita
Ganashamdas [(2015) 5 SCC 223], wherein the plaintiff became
aware of such intention of the defendants not to perform
the agreement, only after the institution of the first
suit. It was held that, in Virgo Industries and Vurimi Pullarao
above, even at the time of institution of the suit for
injunction it was open for the plaintiff to seek for
specific performance on the very same cause of action,
and whereas in the latter cases, the cause of action for
the institution of a suit for specific performance was
not available at that time. So also, the Apex Court
explained that, in the Cuddalore Powergen Corporation case, the
injunction sought was against interfering with the
peaceful possession and enjoyment of the property, and
the allegation was not one of breach of the agreement
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for sale. It was held that, on the said cause of action,
the plaintiff could not have maintained a suit for
specific performance, and hence the bar under Order II
Rule 2 did not apply to the subsequent suit for specific
performance.
13. In the present case also, the cause of action
pleaded for the institution of the suit for prohibitory
injunction was, the alleged attempt on the part of the
defendant to alienate the property in breach of the
agreement. The said cause of action enabled the
plaintiff to seek for specific performance also. The
plaintiff having omitted to seek leave of the court to
sue later, for the relief of specific performance,
apparently the suit for specific performance is barred
in terms of Order II Rule 2(3); but then, in the case at
hand, there is yet another aspect of significance.
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14. The suit for prohibitory injunction was
withdrawn, with liberty in terms of Order XXIII Rule
1(3). The application filed by the plaintiff as IA No.
82/2011 was allowed by the Court as per Ext.B2 order.
The first suit for prohibitory injunction having been
withdrawn with leave in terms of Order XXIII Rule 1(3),
would the bar of Order II Rule 2(3) apply to the
subsequent suit for specific performance filed on the
very same cause of action? Will such permission granted
under Order XXIII Rule 1(3) efface the bar under Order
II Rule 2(3) for a subsequent suit filed upon the same
cause of action, seeking additional/other reliefs? The
interplay between Order II Rule 2(3) and XXIII Rule 1(3)
is to be considered.
15. Order XXIII Rule 1(3) reads thus:-
"1. Withdrawal of suit or abandonment of part of claim.-(1) xxxxx xxxxx
(2) xxxxx xxxxx xxxxx
(3) Where the Court is satisfied,-
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(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a claim, it
may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to institute
a fresh suit in respect of the subject-matter of such suit or such part of the
claim."
The provision enables the plaintiff to withdraw a suit
with liberty to institute a fresh suit in respect of the
very same subject matter under certain contingencies.
Presently we are not concerned about the grounds
available for grant of such leave.
16. What does the expression "subject-matter",
occurring in Order XXIII Rule 1(3) refer to? Does it
mean "property"? Could it be understood as referring to
the "cause of action" for the suit?
17. In Vallabh Das v. Madan Lal and Ors. (AIR 1970 SC 987), the
Apex Court held thus:-
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"..... The expression "subject-matter" is not defined in the Civil
Procedure Code. It does not mean property. That expression has a
reference to a right in the property which the plaintiff seeks to enforce.
That expression includes the cause of action and the relief claimed.
Unless the cause of action and the relief claimed in the second suit are
the same as in the first suit, it cannot be said that the subject-matter of the
second suit is the same as that in the previous suit. ....."
The Apex Court held that the words "subject-matter" does
not mean "property", but it includes the "cause of
action" and the relief claimed. In Singha Reddi v. Subba Reddi
(AIR 1917 Madras 512) a Full Bench of the Madras High Court
referring to the word "subject-matter" as occurring in
Order XXIII Rule 1(3) held: -
"..... Without attempting an exhaustive definition of all that may be
included in the term "subject-matter" we are of opinion that where, as in
the present case, the cause of action and the relief claimed in the second
suit are not the same as the cause of action and the relief claimed in the
first suit, the second suit cannot be considered to have been brought in
respect of the same subject-matter as the first suit. This was expressly
decided in Gopal Chandra Banerjee v. Purna Chandra Banerjee 4 CWN
110 with which we agree. ....."
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In B. Chenchuram Naidu v. Muhammad Bahavuddin Sahib (AIR 1933 Madras 3)
the Court while deliberating on the meaning of the word
"subject-matter" occurring in Order XXIII Rule 1(3),
relied on the observation in Rakhmabai v. Mahadeo Narayan (AIR
1917 Bom 101), that, "subject-matter" means, "the series of
acts or transactions alleged to exist giving rise to the
reliefs claimed"; indicating that, it includes the
"cause of action". In Rakhmabai (supra) the court proceeded
to hold thus: -
"The same result arises if "subject matter" is to be taken to be "the
cause of action" in the sense in which it is usually understood, namely,
the bundle of facts which have to be proved in order to entitle the plaintiff
to relief. In that sense the word "subject matter" was understood by the
Madras High Court in Achuta Menon v. Achutan Nayar (1898) ILR 21
Mad 35, and by the Calcutta High Court in Kamini Kant Roy v. Ram
Nath Chuckerbutty (1893) ILR 21 Cal 265, in cases arising under
section 373 of the code of 1882."
In K.S. Bhoopathy and Ors. v. Kokila and Ors. [(2005) 5 SCC 458] , the Apex
Court, referring to Order XXIII Rule 1(3)(b) observed
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that the court must be satisfied with the sufficiency of
the grounds for allowing the plaintiff to institute a
fresh suit for the same claim or part of the claim on
the same cause of action. In Neelakanta Pillai Bhargava Panicker and
Ors. v. Madhavakurup Dasappan Pillai and Ors. (ILR 2007 (2) Ker. 97), this
Court held, "the subject matter mentioned in sub-rule 3
of Rule 1, evidently includes the cause of action as
well". Referring to the judgment of the Apex Court in
Bhoopathy's case (supra) this Court held :-
"..... Clause (b) of Sub-rule (3) contains the mandate to the court that it
must be satisfied about the sufficiency of the grounds for allowing the
plaintiff to institute a fresh suit for the same claim or part of the claim on
the same cause of action. ....."
The statement of objects and reasons of the CPC
Amendment Act, 1976, also indicates that the word
"subject matter" occurring in Order XXIII Rule 1(3)
includes the "cause of action". The relevant portion
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reads thus: -
"Clause 77--Sub-clause (i).-- Rule 1 of Order XXIII, as it now stands,
provides for two kinds of withdrawal of suit, namely (i) absolute
withdrawal, and (ii) withdrawal with the permission of the Court to
institute a fresh suit on the same cause of action. The first category of
withdrawal is governed by sub-rule (1) and second category is governed
by sub-rule (2). Experience shows that the use of the word "withdrawal",
in relation to both the categories of withdrawals, creates a confusion. The
rule is being amended to avoid such confusion. It is proposed to make a
specific provision to the effect that a suit cannot be withdrawn by the next
friend acting on behalf of the minor without the leave of the Court. It is
further provided that where an application for such leave is made, it shall
be accompanied by an affidavit of the next friend as well as a certificate
of the pleader to the effect that the withdrawal of the suit is for the
minor's benefit."
This indicates that our understanding regarding the
expression "subject matter", as occurring in Order XXIII
Rule 1(3), conforms to the legislative intent.
18. From the above discussions it is evident that
the term "subject-matter", as occurring in Order XXIII
Rule 1(3), includes "cause of action". In other words,
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when a suit is permitted to be withdrawn in terms of
Order XXIII Rule 1(3) a fresh suit could be filed on the
same cause of action.
19. Now we proceed to consider the effect of the
withdrawal under Order XXIII Rule 1(3), on the first
suit. The Allahabad High Court in Behari Lal Pal v. Srimati Baran
Mai Dasi (ILR (1895) 17 All 53) referring to the similar provision
obtaining under the former Civil Procedure Code of 1882
(Act No. XIV of 1882) held: -
"..... Where a suit is withdrawn under s. 373 with permission to bring a
fresh suit the effect of such permission is to leave matters in the position
in which they would have stood if no such suit had been instituted. ....."
It was held that, on such withdrawal, it is as if there
was no such suit at all. The court relied on the
judgments of the Madras High Court and of the very same
court in Venkata Shetti v. Ranga Nayak [ILR (1882) 10 Mad 160], Bakhsh v.
Imam Bakhsh [ILR 1875 (1) ALL 324], Mul Chand v. Bhikari Das [ILR 1885 (7) ALL
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624]. In Paramanand (Dead) Subs. By L.Rs. v. The Prescribed Authority (Munsiff
West), Meerut and others (2001 All LJ 2277) the court, referring to the
earlier judgments of the Allahabad and Calcutta High
Courts which expressed a similar view held: -
"..... In the case of Bihari Lal Pal v. Smt. Baran Mai Dasi, it was held that
where a suit is withdrawn with permission to bring a fresh suit, the effect
of such permission, is to leave parties in the same position in which they
would have been if no such suit had been instituted. Similarly a Full
Bench of Calcutta High Court in the case of Becharam Choudhuri v.
Puran Chandra Chatterji, held that when a suit was allowed to be
withdrawn with leave to bring a fresh suit under Order 23 of the Civil
Procedure Code it should be regarded as never brought. It is available for
no purpose. It does not save or give fresh start to limitation nor does it
afford a fresh cause of action.
Learned counsel for the petitioner further invited the attention of
the Court to the provisions of Order 23 Rule 2 of the Code of Civil
Procedure which is reproduced below :
"any fresh suit instituted on permission granted under the last
preceding rule the plaintiff shall be bound by the law of limitation in the
same manner as if the first suit had not been instituted."
The above sub-rule clearly lays down that the plaintiff shall be
bound by the law of limitation in the same manner as if the first suit had
not been instituted.
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From the above decision it is thus clear that the effect of the
withdrawal of suit is that the parties are left in the same position which
they had occupied if no such suit had been instituted. Even where the
Court grants leave to file a fresh suit or proceeding for the same cause of
action, the withdrawn suit has no existence in the eye of law. It is
available for no purpose and parties are relegated to the same position
which they had occupied before the fresh suit was brought. ....."
As could be noticed, it was observed that the withdrawn
suit has no existence in the eye of law. Reference was
also made to Order XXIII Rule 2 which provided that the
fresh suit shall be bound by the law of limitation in
the same manner as if the first suit was not instituted
at all. Similar is the view expressed in Sukumar Banerjee v.
Dilip Kumar Sarkar and ors. (AIR 1982 Cal 17) , Bhimangouda v. Sangappa Irappa
Patil and Ors. (AIR 1960 Mys 178).
20. In K.Sivaramaiah v. Rukmani Ammal (2004 (1) SCC 471) , the
Apex Court, noticing on the facts of the case that the
earlier suit was withdrawn with liberty to file a fresh
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suit, held,
"Once the suit has been permitted to be withdrawn all the proceedings
taken therein including the judgment passed by the trial court have
been wiped out."
Therefore, the effect of the withdrawal of a suit with
leave of the Court in terms of Order XXIII Rule 1(3) is
that, there has been no such suit at all.
21. Having held that the resultant position after
withdrawal of a suit under Order XXIII Rule 1(3) is that
there was no suit at all, necessarily, the bar under
Order II Rule 2 cannot arise for the subsequent suit. In
Jagadambal and Anr. v. Minor Sundarammal by next friend, Ponnusami Chettiar and
Ors. (AIR 1941 Madras 46), the court observed,
"Order XXIII Rule (1) lays down a principle which is an exception to
the general rule that a fresh suit cannot be filed on the same cause of
action."
Similar is the view expressed in K.E.A.K.A. Sahib & Co. v.
K.M.Adamsa (ILR 1924 (2) Rang 66). In Ghulam Muhammad Khan v. Nur Khan
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and another (AIR 1917 Lah 414), it was held that the bar under
Order II Rule 2 is removed by the order under Order
XXIII granting permission to withdraw with liberty to
file a fresh suit. The Apex Court in Gurinderpal v. Jagmittar
Singh [(2004) 11 SCC 219] held that when leave to withdraw the
suit is granted in terms of Order XXIII Rule 1(3), the
bar under Order II Rule 2 will not operate against the
subsequent suit. The Court held,
"Having heard the learned counsel for the parties, we are satisfied that the
judgment of the High Court as also of the first appellate court cannot be
sustained to the extent to which the bar enacted under O.2 R.2 CPC has
been applied. The provisions of O.2 R.2 CPC bar the remedy of the
plaintiff-appellant and, therefore, must be strictly construed. The order of
the trial court dated 15-06-1994 passed in the earlier suit, extracted and
reproduced hereinabove, has to be read in the light of the statement of the
plaintiff-appellant recorded by the court on that very date. The plaintiff-
appellant had clearly stated that he was seeking leave to withdraw the suit
with the liberty of filing a fresh suit. The trial court recorded that the suit
was being dismissed as withdrawn "in view of the statement of the
plaintiff". A conjoint reading of the order of the court and the statement of
the plaintiff, clearly suggests that the suit was dismissed as withdrawn
because the plaintiff wanted to file a fresh suit, obviously wherein the
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plaintiff would seek the decree of specific performance and not of a mere
injunction as was prayed for in the suit which was sought to be withdrawn.
In the subsequent suit, the first appellant court was not right in forming an
opinion that liberty to file the fresh suit was not given to the plaintiff in the
order dated 15-06-1994. That finding of the first appellate court ought not
to have been sustained by the High Court."
This was later followed by the Apex Court in Sucha Singh
Sodhi (D) thr. L.Rs. v. Baldev Raj Walia and Ors. [(2018) 6 SCC 733].
22. To sum up, when a previously instituted suit is
withdrawn with the leave of the Court in terms of Order
XXIII Rule 1(3) to institute a fresh suit, the bar under
Order II Rule 2 will not operate against the subsequent
suit filed seeking additional/other reliefs.
23. In the case at hand, the earlier suit was
withdrawn with the leave of the court in terms of Order
XXIII Rule 1(3). Ext.A21 is the application and Ext.B2
is the order. The said order remained unchallenged. We
are not on the correctness of the said order. Suffice to
notice that the order granting leave to withdraw the
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suit with liberty to file fresh suit in terms of Order
XXIII Rule 1(3) has become final.
24. The trial court dismissed the suit solely for
the reason that the suit is barred under Order II Rule 2
CPC. The earlier suit for prohibitory injunction, OS
677/2010, was withdrawn with the leave of the Court in
terms of Order XXIII Rule 1(3) CPC. Hence the latter
suit for specific performance with the alternate prayer
for return of advance sale consideration is not barred
under Order II Rule 2 CPC. The finding of the trial
court to the contrary is set aside.
25. Coming to the merits of the claim, the
execution of Ext.A1 agreement is not in dispute. Under
Ext.A1, defendants 1 to 3 agreed to convey the plaint
schedule item 1 property in favour of the plaintiff for
a total sale consideration of ₹ 135 lakhs. An amount of
₹ 40 lakhs was paid under Ext.A1 agreement, towards
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advance sale consideration. Thereafter defendants 2 and
3 conveyed portions of the property to the plaintiff. It
is the case of the defendants that the plaintiff was not
ready to perform the agreement since he did not have
sufficient funds with him. The trial court on discussing
the evidence exhaustively, concluded that the plaintiff
failed to prove that he had the sufficient financial
capacity or source to go ahead with the agreement. It is
not attempted to urge or demonstrate before us that the
finding of the trial court as above is not correct on
the materials. Before us, it is rather conceded that the
plaintiff is seeking only the alternate relief for
return of money.
26. It is not in dispute that, after taking into
consideration the amounts paid by the plaintiff and
making proportionate deductions for the value of the
property conveyed to the plaintiff, a further amount of
2025:KER:19769
₹ 17 lakhs remains with defendants 1 to 3 as advance
sale consideration. It is not attempted to contend
otherwise. But for the bald plea of the first defendant
that she had sustained damages due to non-performance of
the contract, there is no evidence to prove the same.
Defendants 1 to 3 are liable to return the said amount
of ₹ 17 lakhs with interest. The first defendant being
no more, her legal heirs would be answerable for her
liability to the extent of the assets devolved on them
from her. Considering the prevailing rate of interest in
banking transactions, we are of the opinion that grant
of interest at the rate of 9% per annum from the date of
suit till the date of decree, and thereafter at the rate
of 6% per annum, will be just and reasonable.
In the result, this appeal is allowed. The decree
and judgment of the trial court are set aside. The
plaintiff is granted a decree for realisation of an
2025:KER:19769
amount of Rs. 17 lakhs with interest at the rate of 9%
per annum from the date of suit (03.01.2011) till date
of decree, and thereafter at the rate of 6% per annum
from defendants 2 and 3 jointly and severally and from
their assets, and also from the assets of the first
defendant that has devolved upon defendants 2, 3, 4, 7,
and respondents 8 to 10, in their capacity as the legal
heirs of the deceased first defendant. The plaintiff
shall also be entitled for proportionate costs
throughout.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
