Madras High Court
Gunasekar vs Balasubramaniam on 23 April, 2021
CRP.PD.No.2716 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.04.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.2716 of 2018 and
CMP.No.15994 of 2018
Gunasekar ... Petitioner
Vs.
Balasubramaniam ...Respondent
PRAYER:
Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decretal order of the
Principal District Judge's Court at Villupuram, dated 21.12.2016 in
IA.No.53 of 2015 in OS.No.119 of 2010.
For Petitioner : Mr.P.Valliappan
For Respondent : No Appearance
ORDER
This civil revision petition is filed against the fair and
decretal order of the Principal District Judge's Court at Villupuram,
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CRP.PD.No.2716 of 2018
dated 21.12.2016 in IA.No.53 of 2015 in OS.No.119 of 2010,
thereby dismissing the petition filed for rejection of plaint.
2. The petitioner is the second defendant and the
respondent is the plaintiff. The respondent filed suit for specific
performance on the strength of the agreement for sale dated
08.02.2003. While pending the suit, the petitioner filed petition for
rejection of plaint and the same was dismissed. Aggrieved by the
same, the present civil revision petition has been filed.
3. The learned counsel for the petitioner would
submit that on the strength of the alleged agreement for sale dated
08.02.2003, the respondent issued notice on 14.07.2004, thereby
called upon the petitioner to execute the sale deed on receipt of
balance sale consideration. On receipt of summon, the petitioner
issued reply notice on 22.07.2004 denying the very execution of
sale agreement. Thereafter, only on 07.02.2009, the present
impugned suit is filed for specific performance on the strength of the
very same agreement for sale dated 08.02.2003 and as such the
suit is clearly barred under Article 54 of Limitation Act. The
respondent already filed suit for bare injunction in respect of the
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CRP.PD.No.2716 of 2018
very same property in OS.No.144 of 2004 on the file of the Principal
District Court, Villupuram and thereafter it was transferred to the
Additional District Court, Kallakurichi and renumbered as OS.No.3 of
2008. The very cause of action itself for filing the suit is present
agreement for sale dated 08.02.2003. Even then, the respondent
failed to sought for any relief of specific performance. The said suit
was dismissed by the judgment and decree dated 08.02.2011.
While pending the suit, the present suit has been filed without any
leave of the Court under Order 2 Rule 2 of CPC. Therefore, the
present suit is directly hit under Order 2 Rule 2 of CPC and it is
liable to be rejected. Therefore, on these two grounds, the plaint is
liable to be rejected. But unfortunately, the court below without
considering the above grounds raised by the petitioner, dismissed
the petition. In support of his contention, he relied upon the
following judgments:
(i) N.V.Srinivasa Murthy and Ors Vs. Mariyamma (dead)
by proposed L.Rs and Ors reported in AIR 2005 SC 2897
(ii) M/s.Raptakos Brett and Co.Pvt. Ltd Vs. M/s.Modi
Business Centre (Pvt) Ltd reported in AIR 2006 Mad 236
(iii) Van Vibhag Karamchari Griha Nirman Sahakari Sanstha
Maryadit (Regd) V.Ramesh Chander and Ors
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CRP.PD.No.2716 of 2018
reported in AIR 2011 SC 41
(iv) N.Ravindran Vs. V.Ramachandran reported in
AIR 2011 Mad 136
(v) B.S.Garg Vs. R.Meena Sundar and others reported in
2016 (2) MWN (Civil) 752
(vi) Subbiah(died) Vs. Thiruneelapandian reported in
2017 (6) CTC 1
(vii) V.Venkataravanappa Vs. D.K.Gopal and another
reported in AIR 2019 Karnataka 122
(viii) Vurimi Pullarao Vs. Vemari Vyankata Radharani
Dhankoteshwarrao reported in AIR 2020 SC 395
(ix) K.Murali Vs. M.Mohamed Shaffir reported in
2020 (1) CTC 38
4. Heard, Mr.P.Valliappan, the learned counsel for the
petitioner. Though notice was served to the respondent herein and
name is also printed in the cause list, no one appeared on behalf of
the respondent before this Court in person or through pleader.
5. The petitioner is the second defendant and the
respondent is the plaintiff. The respondent filed suit for specific
performance on the strength of the agreement of sale dated
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CRP.PD.No.2716 of 2018
08.02.2003. The case of the respondent is that the suit property
belongs to the petitioner and he had obtained suit property by way
of partition from his parents. He executed power of attorney in
favour of the first respondent dated 21.01.2003 in respect of the
suit property to deal with the same in all kinds of transaction. On
the strength of the power of attorney, the first defendant entered
into agreement for sale in respect of the suit property with the
respondent for the total sale consideration of Rs.16,51,380/-, in
which the first defendant received a sum of Rs.15,61,380/- as
advance. Further agreed to execute sale deed within a period of
three years from the date of sale agreement after receipt of balance
sale consideration. Further averred that the respondent already filed
suit for bare injunction in respect of the suit property in OS.No.144
of 2004 and subsequently transferred to the Fast Track Court,
Kallakurichi and renumbered as OS.No.3 of 2008. Subsequently, the
general power of attorney dated 21.01.2003 was also cancelled by
the cancellation deed dated 21.04.2003. But the respondent did not
aware of the said fact. When the respondent was ready and willing
to perform his part of agreement, the first defendant failed to
execute sale deed and hence the suit.
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CRP.PD.No.2716 of 2018
6. While pending the suit, the petitioner filed petition for
rejection of plaint on two grounds. First, the suit is barred by
limitation under Article 54 of the Limitation Act. Second, the suit is
directly hit under Order 2 Rule 2 of CPC when the respondent
already filed suit in OS.No.144 of 2004 on the strength of the very
same sale agreement for bare injunction.
7. The points for consideration are that whether the suit
filed by the respondent is barred by limitation under Article 54 of
Limitation Act? and whether the suit is hit by Order 2 Rule 2 of CPC?
8. Admittedly, the present suit has been filed on
07.02.2009 on the strength of the agreement for sale dated
08.02.2003. Therefore, the respondent ought to have filed suit
within a period of three years from the date of agreement. In fact,
the alleged agreement for sale was executed by the first defendant
in the suit as power of attorney of the petitioner herein and
subsequently, the power of attorney dated 21.01.2003 was
cancelled by the registered cancellation deed dated 21.04.2003. In
fact, on the strength of the very same agreement for sale, the
respondent already filed suit in OS.No.144 of 2004 on the file of the
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CRP.PD.No.2716 of 2018
Principal District Court, Villupuram and subsequently it was
transferred to the file of the Fast Track Court, Kallakurichi and
renumbered as OS.No.3 of 2008, which was dismissed by the
judgment and decree dated 08.02.2011. Though it was dismissed
for default, the respondent did not take any step to restore the
same. In the said suit on 31.12.2004 itself, the petitioner herein
filed detailed written statement stating that the power of attorney
executed in favour of the first defendant in the present suit dated
21.01.2003 has been duly cancelled and the cancellation deed was
also registered on 21.04.2003. Even then, the respondent failed to
amend the suit challenging the cancellation of power of attorney or
the suit for specific performance on the strength of the agreement
for sale. That apart, the respondent caused legal notice dated
14.07.2004, for which the petitioner duly replied by the reply notice
dated 22.07.2004 by stating that denial of execution of agreement
for sale and also cancellation of power of attorney. Therefore, the
present impugned suit for specific performance is clearly barred
under Article 54 of the Limitation Act, 1963. Insofar as the other
ground is concerned, the second impugned present suit was filed by
the respondent without obtaining permission under Order 2 Rule 2
of CPC.
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CRP.PD.No.2716 of 2018
9. The learned counsel for the petitioner vehemently
contended that the present impugned suit is directly hit under Order
2 Rule 2 of CPC and it has been filed without leave of the Court as
contemplated under Order 2 Rule 2 of CPC. In support of his
contention he relied upon several judgments in his favour. It is
relevant to the rely upon the judgment in the case of Vurimi
Pullarao Vs. Vemari Vyankata Radharani Dhankoteshwar Rao
reported in AIR 2020 SC 395, wherein it is held as follows:
The situation as it obtained in the case before the
Constitution Bench in Gurbux Singh [Gurbux
Singh v. Bhooralal, AIR 1964 SC 1810] is distinct from the
events as they transpired in the present case. The first appellate
court, in the judgment which it delivered upon remand took
note of the fact that the defendant had by its application at Ext.
117 prayed for summoning the original record of the earlier
suit for injunction for proving the plaint. The plaintiff opposed
that plea with the assertion that a certified copy of the
document could be placed on record instead of summoning the
original record. The Civil Judge, Senior Division, accordingly
rejected the application on the ground that since the certified
copy was filed on the record, it was unnecessary to call for the
original record. The defendant had moved another application
at Ext. 118 in the nature of a notice to admit the certified copy
of the plaint in the earlier suit. This came to be allowed by the
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CRP.PD.No.2716 of 2018
trial court. The first appellate court noted that there was no
objection from the plaintiff whereupon the certified copy of the
plaint was marked as Ext. 137. In this background, the first
appellate court was clearly justified in coming to the
conclusion that this is not a case where the plaintiff was
deprived of an opportunity to explain the pleadings in the
earlier suit. The finding that there was no prejudice to the
plaintiff cannot be faulted. The parties were all along aware of
the pleadings, the nature of the objection to the maintainability
of the subsequent suit on the ground of the bar under Order 2
Rule 2 and the fact that the plaint in the earlier suit was
brought on the record. Indeed, it was at the behest of the
plaintiff that a certified copy of the plaint in the earlier suit was
allowed to be brought on the record and marked as Ext. 137. In
the circumstances, we are of the view that the bar under Order
2 Rule 2 is attracted. The plaintiff was entitled to sue for
specific performance when the earlier suit for injunction was
instituted but omitted to do so. There was an identity of the
cause of action in the earlier suit and the subsequent suit. The
earlier suit was founded on the plea of the plaintiff that it was
in pursuance of the agreement to sell dated 26-10-1995 that he
had been placed in possession of the property. Yet, without
seeking the leave of the Court, the plaintiff omitted to sue for
specific performance and rested content with the prayer for
permanent injunction. In these circumstances, we agree with
the finding which has been arrived at by all the three courts
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CRP.PD.No.2716 of 2018
that the subsequent suit filed is barred under Order 2 Rule 2
does not warrant any interference in this appeal. The appeal
would accordingly have to stand dismissed and we order
accordingly.
The Hon'ble Supreme Court of India held that the plaintiff was
entitled to sue for specific performance when the earlier suit for
injunction was instituted, but omitted to do so. There was an
identity of the cause of action in the earlier suit and subsequent
suit. Therefore, the subsequent suit is barred under Order 2 Rule 2
of CPC.
10. In the case on hand, it is quite clear that those causes
of action were very well available at the time of filing of the earlier
suit. Both the causes of action referred only to the agreement for
sale in question dated 08.02.2003. Therefore, the present suit is
barred by Order 2 Rule 2 of CPC. The respondent already filed suit
for bare injunction for the very same cause of action on the strength
of the agreement for sale dated 08.02.2003. While pending the suit,
the present impugned suit has been instituted without obtaining any
leave of the court as contemplated under Order 2 Rule 2 of CPC.
After filing the present suit, the earlier suit was dismissed for default
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CRP.PD.No.2716 of 2018
by the judgment and decree dated 08.02.2011. It is relevant to
extract provision under Order 2 Rule 2 of CPC as follows:
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.
11. Accordingly, the present impugned suit is clearly barred
by operation of law under Order 2 Rule 2 of CPC. That apart, the
readiness and willingness is also not explained by the respondent
herein. According to the alleged agreement for sale, the time fixed
for execution of sale deed is three years. Whereas, the respondent
caused notice on 14.07.2004 and it was duly replied by the
petitioner dated 22.07.2004. Even thereafter, the respondent did
not file any suit for specific performance and the present suit has
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CRP.PD.No.2716 of 2018
been laid only on 07.02.2009. Therefore, at any cost, the suit
cannot be sustained and it is liable to be rejected. Therefore, the
order passed by the court below is illegal, perverse and liable to be
set aside.
12. Accordingly, this civil revision petition is allowed and the
order of the Principal District Judge's Court at Villupuram, dated
21.12.2016 in IA.No.53 of 2015 in OS.No.119 of 2010 is set aside.
Consequently, the plaint in OS.No.119 of 2010 on the file of the
Principal District Judge's Court at Villupuram is rejected.
Consequently, connected miscellaneous petition is closed. No costs.
23.04.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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CRP.PD.No.2716 of 2018
To
The Principal District Judge,
Villupuram
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.2716 of 2018
G.K.ILANTHIRAIYAN, J.
lok
CRP.PD.No.2716 of 2018 and
CMP.No.15994 of 2018
23.04.2021
https://www.mhc.tn.gov.in/judis/
