Madras High Court
Raj Ganesan vs Dr. Geeth Ragunath on 30 April, 2021
C.R.P.(PD)No.2284 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Order Date of Pronouncing Order
26.10.2021 .11.2021
CORAM:
THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN
C.R.P.(PD)No.2284 of 2021
and
CMP.No.17284 of 2021
1. Raj Ganesan
2. Bhuvaneshwari ...Petitioners
Versus
Dr. Geeth Ragunath ...Respondent .
PRAYER: Civil Revision Petitions filed under Article 227 of the Constitution
of India, to revise and set aside the impugned fair and decretal order passed in
IA No.1 of 2019 in OS No.279 of 2004 dated 30.04.2021 on the file of the
Learned II Additional District and Sessions Judge, Salem and allow this Civil
Revision Petition.
For Petitioners : Mr.Navaneetha Krishnan
Senior Advocate for
Mr.R.Naveen
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C.R.P.(PD)No.2284 of 2021
For R1 to R3 : Mr.M.Nandhakumar
for Mr.Eswar Kumar and Rao
ORDER
This Civil Revision Petition is directed against the order passed in
I.A.No.1 of 2019 in O.S.No.279 of 2004 on 30.04.2021 by the learned II
Additional District and Sessions Judge, Salem.
2. I.A.No.1 of 2019 was filed under Order 7 Rule 11 r/w section 151 of
C.P.C., for rejecting the plaint in O.S.No.279 of 2004. The learned counsel for
the petitioners submitted that the respondent filed O.S.No.39 of 2004 against
Mr.Rajendiran and four others seeking the relief of permanent injunction for
protecting her possession in respect of the suit properties. She claimed that she
entered into sale agreement with Chinnappa Udayar and Ammasi Udayar,
defendants 4 and 5 in that suit on 28.01.1991. She paid an advance of Rs.
1,00,000/- (Rupees one lakhs) and was handed over possession of the suit
properties. She is in possession and enjoyment of suit properties from the date
of sale agreement. When the defendants in the suit tried to disturb her
possession, she filed the suit. The respondent has also filed O.S.No.279 of 2004
against Chinnappa Udayar and nine others for the relief of specific performance
of the contract on the basis of sale agreement dated 28.01.1991. The cause of
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action for both the suits are the alleged execution of sale agreement by
Chinnappa Udayar and Ammasi Udayar in favour of the respondent. It is
specifically claimed in the plaint in O.S.No.39 of 2004 that despite the
readiness and willingness to perform the part of the contract, defendants were
evading from performing their part of the contract. When the respondent knew
well that the defendants in O.S.No.39 of 2004 are evading to perform their
contract, she ought to have filed the suit for specific performance, instead of
filing the suit for permanent injunction. Under Order 2 Rule 2 CPC the suit
shall include whole claim. When the plaintiff in the suit 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. 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. In the case before the hand, the respondent has not
sought any permission from the Court to omit the relief of specific performance
and initiate a separate action, at the time of filing O.S.No.39 of 2004.
Therefore, the suit is barred under Order 2 Rule 2 of C.P.C.,
3. Thus petitioners filed I.A.No.1 of 2019 under Order 7 Rule 11 C.P.C.,
for rejection of plaint. This petition was contested by the respondent. The
learned II Additional District and Sessions Judge, Salem after considering the
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rival submissions found that the cause of action for both the suits are different
and therefore, the suit is not barred under Order 2 Rule 2 C.P.C., On this reason
and also for the reason that petition to reject the plaint was filed 17 years after
filing of the suit, dismissed the petition. Challenging the said order of
dismissal, this Civil Revision Petition is preferred.
4. In response, the learned counsel for the respondent submitted that the
cause of action for both the suits are different. Earlier suit was filed when the
defendants in the suit tried to interfere with the possession of the respondent.
Subsequent suit was filed, when the defendants refused to execute the sale deed
as per the sale agreement. When the cause of action for both the suits are
different, subsequent suit is not barred under Order 2 Rule 2 CPC. In fact,
petitioners filed a memo before the Trial Court to try both the suits jointly in a
joint trial. This petition was filed after 18 years of filing the suit, only with a
view to protract the proceedings. Petitioner instituted several parallel
proceedings to see that the specific performance is avoided. The learned II
Additional District and Sessions Judge, Salem considered the issue in right
perspective and dismissed the petition. Therefore, the learned counsel for the
respondent prayed for confirming the order of the learned II Additional District
and Sessions Judge, Salem and for dismissal of this Revision petition. In
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support of his submission he relied on the following judgments for the
proposition that when the cause of action for both the suits are different,
subsequent suit cannot held to be barred under Order 2 Rule 2 C.P.C.,.
i). Sucha Singh Sodhi (dead) through Legal Vs. Baldev Raj Walia and
Another reported in 2018 (6) SCC 733
29.3. Third, when both reliefs/claims, namely, (1) permanent
injunction, and (2) specific performance of agreement are not
identical, when the causes of action to sue are separate, when
the factual ingredients necessary to constitute the respective
causes of action for both the reliefs/claims are different and
lastly, when both the reliefs/claims are governed by separate
articles of the Limitation Act, then, in our opinion, it is not
possible to claim both the reliefs together on one cause of
action.
ii) Inbasagaran and another Vs. S. Natarajan (Dead) through legal
representatives reported in (2015) 11 SCC, 12
26. In the light of the principles discussed and the law laid
down by the Constitution Bench as also other decisions of this
Court, we are of the firm view that if the two suits and the
relief claimed therein are based on the same cause of action
then only the subsequent suit will become barred under Order
2 Rule 2 CPC. However, when the precise cause of action upon
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which the previous suit for injunction was filed because of
imminent threat from the side of the defendant of dispossession
from the suit property then the subsequent suit for specific
performance on the strength and on the basis of the sale
agreement cannot be held to be the same cause of action. In
the instant case, from the pleading of both the parties in the
suits, particularly the cause of action as alleged by the plaintiff
in the first suit for permanent injunction and the cause of
action alleged in the suit for specific performance, it is clear
that they are not the same and identical.
27. Besides, the above, on reading of the plaint of the suit for
injunction filed by the plaintiff, there is nothing to show that
the plaintiff intentionally relinquished any portion of his claim
for the reason that the suit was for only injunction because of
the threat from the side of the defendant to dispossess him from
the suit property. It was only after the defendant in his suit for
injunction disclosed the transfer of the suit property by the
Housing Board to the defendant and thereafter denial by the
defendant in response to the legal notice by the plaintiff, the
cause of action arose for filing the suit for specific
performance.
He also relied on the following judgment for the proposition that when
claiming bar under Order 2 Rule 2 C.P.C., defendant has to produce the
pleadings in the previous suit by way of evidence and Court is required to go
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into pleadings of the previous suit and compare it with pleadings in the present
suit to arrive at a conclusion as to the identity of causes of action. However,
under Order 7 Rule 11 CPC the Court is enjoined only on looking at the
averments made in the present suit and not travel to the written statement or
other documents filed by the defendant.
i) Suresh Kakkar and Another Vs. Mahendra Nath Kakkar & Ors. reported in
2008 (105) DRJ 211
17. In the light of the above discussion, it is clear that before
the bar under Order 2 Rule 2 CPC., can be set up, the
defendant has to produce the pleadings in the previous suit by
way of evidence and the court is required to go into the
pleadings of the previous suit and compare it with the
pleadings in the present suit to arrive at a conclusion as to the
identity of the cause of action. However, under Order 7 Rule
11, CPC, the Court is enjoined only to look at the averments
made in the plaint of the present suit and not travel to the
written statement or other documents filed by the defendant.
The plaint by itself must disclose that the suit is barred by law.
The Constitution Bench in the case of Gurbux Singh (supra)
has settled the issue that the inference as to the identity of the
causes of action between the present suit and the earlier suit
cannot be culled out from the plaint in the subsequent suit. It
is, therefore, abundantly clear that in an application under
Order 7 Rule 11, CPC can be raised by the defendant in the
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written statement and, if so raised, an issue can be framed in
respect thereof. The Court would then be in a position to
conclusively determine the identity of the causes of action
between the earlier suit and the later suit and rule in the basis
of evidence led by the parties. But, such a course of action is
not permissible under Order 7 Rule 11, CPC. As a result, this
application is rejected.
5. In reply, learned counsel for the petitioners submitted that as per Order
7 Rule 11 (d), where the suit appears from the statement in the plaint to be
barred by any law, the plaint can be rejected. In support of this proposition the
learned counsel for the petitioners relied on the judgment Sasan Power
Limited Vs. North American Coal Corporation (India) Private Limited
reported in (2016) 10 SCC 813, wherein it is observed that if a suit is barred by
law, Court is bound to take note of the bar whether such question is raised by
parties are not.
6. He also relied on the judgments reported in (2013) 1 SCC 625 (Virgo
Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited)
and (2020) 5 CTC 435 (Antony Moses Vs. [email protected] Dhanalakshmi and
others) for the proposition that subsequent suit is not permissible when the
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cause of action for later suit is same as in the first suit, unless leave of Court is
obtained in first suit as to filing of subsequent suit for the omitted relief. This
portion apply equally when both the cases are pending. The judgment reported
in 2021 (4) CTC 439 (Gunasekar Vs. Balasubramaniam) is pressed into
service in support of the case of the petitioners that in identical situation, the
subsequent suit was rejected.
i).Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private
Limited reported in (2013) 1 Supreme Court Cases 625.
10. "6. In order that a plea of a bar under Order 2 Rule 2(3) of
the 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
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 scoped of the application of the bar."
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ii). Anotny Mosses Vs. Roselin. 2. Dhanalakshmi. 3. K.Vijayalakshmi.
4.Shyam Sundar reported in 2020 (5) CTC 435
This Court is of the considered opinion that Order 2,
Rule 2 of the Code of Civil Procedure in clear terms stipulates
that every Suit shall include the whole of the claim, which the
Plaintiff is entitled to make in respect of the cause of action.
Thus when the cause of action aroused from and out of the Suit
Sale Agreement, dated 2.6.2005 and on payment of advance by
the Plaintiff to the First Defendant, the Plaintiff ought to have
instituted the Suit for Specific Performance at the first
instance. Contrarily, he has chosen to file a Suit for Permanent
Injunction to sell the property and after a prolonged period by
not stating the earier Suit filed in O.S.No.236 of 2008 for
Specific Performance. Thus, such a conduct is a clear
suppression of fact as far as the Plaint filed O.S.No.236 of
2008 in concerned. In the Plaint, there is no averment
regarding the filing of the earlier Suit in O.S.No.611 of 2007.
This being the factum, the Trial Court is right in rejecting the
relief of Specific Performance and there is no perversity or
infirmity as such in respect of the decision arrived by the Trial
Court.
iii) Gunasekar Vs. Balasubramaniam reported in 2021 (4) CTC 439.
10. In the case on hand, it is quite clear that those
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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 8.2.2003. 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 of the strength of the Agreement for Sale,
dated 8.2.2003. 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 by the Judgment and Decree, dated 8.2.2011.
.........
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 14.7.2004 and it
was duly replied by the Petitioner, dated 22.7.2004. Even
thereafter, the Respondent did not file any Suit for Specific
Performance and the present Suit has been laid only on
7.2.2009. 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.
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7. Considered the rival submissions and perused the records.
8. Admittedly the earlier suit in O.S.No.39 of 2004 was filed only for the
relief of permanent injunction to protect the possession of respondent. Only in
O.S.No.279 of 2004 the respondent prayed for the relief of the specific
performance of the contract. Both the suits have been filed on the basis of the
sale agreement dated 28.01.1991. However, the first suit was filed primarily to
protect the possession of respondent when the defendants in the suit tried to
dispossess the possession and attempted to damage the suit properties. In the
judgment reported in (2015) 11 SCC, 12 (Inbasagaran and another Vs. S.
Natarajan (Dead) through legal representatives) it was observed that when
precise cause of action upon which previous suit for injunction was filed
because of imminent threat from the side of the defendant of dispossession
from the suit property, then subsequent suit for specific performance on the
strength and on the basis of sale agreement cannot held to be the same cause of
action. We have identical case here. In the first suit the immediate cause of
action for filing the suit was the defendants' attempt to dispossess the
respondent from the possession of the suit property and damage the suit
property. In the subsequent suit, the cause of action was the refusal by the
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defendants to execute the sale deed. Therefore, it is apparent that the cause of
action for both the suits are different.
9. There is no qualm over the proposition that the subsequent suit is not
permissible when the cause of action for later suit is same as in the first suit
unless leave of the Court is obtained in first suit as to filing of subsequent suit
for the omitted relief. The judgments relied on by the learned counsel for the
petitioners Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions
Private Limited reported in (2013) 1 Supreme Court Cases 625 and Antony
Moses Vs. [email protected] Dhanalakshmi. and others reported in (2020) 5 CTC
435 came to be delivered in Civil Appeal Cases after conclusion of the trial.
Issue of readiness and willingness was also considered while disposing the case
in Gunasekar Vs. Balasubramaniam(cited supra). What you have to consider
is whether the principle of bar of the suit under Order 2 Rule 2 CPC can be
considered in an application filed under Order 7 Rule 11 CPC.
10. It has been held in judgment reported in 2008 (105) DRJ 211
(Suresh Kakkar and another Vs. Mahender Nath Kakkar & others), that
when considering the bar of subsequent suit under Order 2 Rule 2 CPC, the
pleadings in the previous suit by way of evidence and pleadings in the
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subsequent suit have to be compared to come to a conclusion. However, in an
enquiry under Order 7 Rule 11 CPC only the plaint averments have to be taken
into consideration and not the written statement or other documents. The issue
is whether the suit is barred under Order 2 Rule 2 CPC is mixed question of
fact and law and required to be enquired on the production of relevant
documents, evidence and examination of parties. Therefore, this Court finds the
learned II Additional District and Sessions Judge, Salem has rightly dismissed
the petition and this Court finds no reason to interfere with the order of the
learned II Additional District and Sessions Judge, Salem and the order is
confirmed. However, the petitioners are permitted to raise the issue of bar of
subsequent suit under Order 2 Rule 2 CPC. On such issue is being raised, the
learned II Additional District and Sessions Judge, Salem is directed to frame
appropriate issue and decide the case on merits and in accordance with law.
11. Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently connected miscellaneous petition is closed.
02.11.2021
jai
Index: Yes/ No
Speaking Order / Non-Speaking Order
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To
The II Additional District Judge,
Salem,
Salem District.
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C.R.P.(PD)No.2284 of 2021
G.CHANDRASEKHARAN, J.,
jai
Pre-delivery order in
C.R.P.(PD)No.2284 of 2021
Dated: 02.11.2021
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