Habib Khan Vs Mohammed Peer

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.10.2024 PASSED IN O.S.NO.177/2019 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.

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THIS APPEAL COMING ON FOR ‘ORDER’, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The present Regular First Appeal preferred by the plaintiff is directed against the judgment and decree dated 01.10.2024 passed in OS No. 177 of 2019 on the file of the Principal Senior Civil Judge and CJM, Shivamogga, whereby the suit filed by the plaintiff for specific performance of contract came to be dismissed.

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Plaint averments

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The plaintiff contends that the defendants are the owners in possession of the suit schedule property and they offered to sell the same to him. After negotiations, the parties agreed for a sale consideration of Rs.14,62,500/-. On 09.04.2014, the defendants executed a registered agreement of sale in his favour by receiving an advance of Rs.8,00,000/- agreeing to execute a regular sale deed upon payment of balance of Rs. 6,62,500/-

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within 3 months after furnishing the original documents of title. It is further averred that at the time of agreement, defendant Nos. 3 to 6 were minors and therefore defendant No. 1 as their natural guardian executed the agreement. The plaintiff asserts that the suit schedule property was represented to be free from encumbrances, loan or liabilities. He has always been ready and willing to perform his part of contract. Despite repeated requests, the defendants kept postponing the execution of the sale deed. Plaintiff caused legal notice dated 18.06.2019 calling upon the defendants to receive the balance consideration and to execute the sale deed. However, in spite of the service of the said notice, the defendants neither complied with the demand nor sent any reply. Hence the suit seeking a decree for specific performance of the agreement of sale deed dated 09.04.2014 by directing the defendants to execute a regular registered sale deed in his favour.

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Written statement averments

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The defendants, on the other hand, denied averments of the plaint. They contended that the plaintiff had earlier instituted OS No. 327 of 2015 on the very same agreement of sale dated 09.04.2014 for permanent injunction which was dismissed for default on 11.06.2018. Therefore, the present suit filed in 2019 on the basis of the same agreement is not maintainable being barred both by limitation and by the provisions of Order II Rule 2 of the CPC. It is their specific case that the alleged agreement of sale is fabricated and created document, brought into existence at the instance of one Mohammed Hafizulla, who is related to the parties. The defendants assert that they had no intention to sell the suit property which is not the exclusive property but a part of a joint family estate. In fact partition suits in OS No. 95 of 2011 and 96 of 2011 were filed and now the matter is before this Court in RFA 1720 of 2017. The defendants further denied having received any earnest money of Rs. 8,00,000/-. They

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claimed that the plaintiff under the guise of assisting in revenue clearance, obtained certain documents and took them to the Sub Registrar's Office, where, the alleged agreement came into existence. It is specifically averred that the family of the defendants are fully dependent on the suit schedule property for their livelihood.

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The trial Court, upon consideration answered issue Nos. (1) and (2) in the negative holding that, the plaintiff-PW1 gave contradictory statements at one stage saying that he paid cash 3 to 4 days prior to the agreement, at another stage relying on the cheque in Exhibit P1. The cheque mentioned was never encashed, and the plaintiff admitted that the defendants did not get the amount credited in their account. The trial Court observed that the plaintiff also failed to examine attesting witness to the agreement and hence the trial Court arrived at a finding that plaintiff failed to establish execution of a valid agreement of sale and payment of advance. On issue No. 3 regarding readiness and willingness, the trial Court

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observed that the plaintiff had earlier filed OS No. 327 of 2015, on basis of the same agreement, which was dismissed for default on 11.06.2018. This conduct showed that the plaintiff was not continuously ready and willing to perform his part of contract and answered issue No. 3 in the negative. On issue No. 4 regarding limitation, the trial Court observed that in OS No. 327 of 2015, plaintiff himself pleaded that the cause of action arose on 22.04.2015, when the defendants attempted to alienate the suit schedule property. Once the defendants denied the agreement in that suit the cause of action for seeking specific performance also arose. The present suit, however, was filed only on 09.09.2019 beyond 3 years from the said date. Hence the suit was hopelessly barred by limitation under Article 54 of the Limitation Act and answered issue No. 4 in the affirmative. The trial Court, by the impugned judgment and decree, dismissed the suit of the plaintiff, aggrieved by which, the plaintiff is before this Court.

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5. Heard the learned counsel appearing for the

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appellant and the learned counsel for the respondents.

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Learned counsel for the appellant submits that

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the trial Court erred in dismissing the suit for specific performance. The plaintiff had entered into a registered agreement of sale dated 09.04.2014-Exhibit P1, wherein the defendants agreed to sell the suit property for Rs.14,62,500/- and received Rs.8,00,000/- as advance. The plaintiff was always ready and willing to perform his part of contract. The trial Court failed to appreciate that once the agreement was admitted and registered, the burden shifted on the defendants to disprove it. The dismissal of the earlier suit OS No. 327 of 2015 for injunction does not bar the present suit as the reliefs are distinct, and that the impugned judgment is liable to be set aside and the suit of the plaintiff needs to be decreed.

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Per contra, the learned counsel appearing for

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the respondents-defendants submits that the plaintiff had

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earlier filed OS No. 327 of 2015 on the same agreement dated 09.04.2014, seeking permanent injunction, which was dismissed for default on 11.06.2018. Hence the present suit is barred by Order II Rule 2 CPC. The defendants, in the earlier suit itself, had filed a written statement dated 29.07.2015 categorically denying execution of the alleged agreement. Therefore, the cause of action for specific performance arose in 2015 itself and the present suit filed in 2019 is hopelessly barred by limitation under Article 54 of the Limitation Act. It is further argued that the plaintiff has failed to prove the payment of earnest money of Rs..8,00,000/-, since the cheque mentioned in Exhibit P1 was never encashed and no endorsement exists by the Sub-Registrar. The plaintiff was not ready and willing as required by Section 16(c) of the Specific Relief Act, 1963, since he abandoned his relief in earlier suit and only after several years filed the present one. On these grounds, the learned counsel submits that

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the appeal deserves to be dismissed and the judgment and decree of the trial Court needs to be confirmed.

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Having heard the learned counsel for the parties, the questions that fall for consideration are,

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(i) Whether the trial Court was justified in dismissing the suit holding that the plaintiff is not entitled for relief of specific performance of the agreement dated 09.04.2014 and whether the suit is hit by Order II Rule 2 CPC?

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(ii) Whether the suit is barred by limitation?

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(iii) Whether the judgment and decree of the trial Court warrants any interference?

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POINTS No. (i) to (iii)

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All the points are taken up together in order to avoid repetition of facts. The plaintiff earlier filed OS No. 327 of 2015, seeking a permanent injunction on the same agreement of sale dated 09.04.2014-Exhibit P1. The suit was dismissed for default on 11.06.2018. The defendants

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had already denied the agreement in their written statement in OS No. 327 of 2015 on 29.07.2015 itself. The present suit for specific performance was filed only in 2019. The defendants in their written statement in the present suit, have categorically pleaded that the plaintiff had earlier instituted OS No. 327 of 2015 on the file of the I Additional Civil Judge (Junior Division) Shivamogga, seeking permanent injunction on the basis of the very same agreement of sale dated 09.04.2014. The said suit came to be dismissed for default on 11.06.2018. In that earlier suit, the defendants had filed a detailed written statement dated 29.07.2015 specifically denying the execution of the alleged agreement. Thus the cause of action for seeking specific performance had already arisen in 2015 itself. The present suit, filed in 2019 is not only hopelessly barred by limitation, but is also hit by the provisions of Order II Rule 2 CPC. Once the plaintiff on the basis of the same agreement of sale had chosen to file a suit for injunction and omitted to seek the relief of specific

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performance, he is precluded from filing a fresh suit later seeking that relief. Order II Rule 2 CPC reads as under :

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“ 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.

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(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.”

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(3) xxx xxxx

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(Emphasis supplied)

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The Apex Court in the case of Gurbux Singh. vs Bhooralal¹ , has held at para No. 6 as under:

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“6. In order that a plea of a bar under Order 2 Rule 2 (3) Civil Procedure Code should succeed the defendant who raises the plea must make out; (i) 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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1 1964 SCC Online SC 101

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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 0rder 2 Rule 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 identity 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 0rder 2. Rule 2 of the Civil Procedure Code. The learned trial

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Judge, however, without these pleadings being on the 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 stage 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 0rder 2 Rule 2 of the 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:

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"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 courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court."

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It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these

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observations. The statement of the learned Judge "the two courts have, however, freely cited from the record of the earlier suit" is obviously inaccurate as 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 0rder 2 Rule 2 of the Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under 0rder 41. Rule 27 of the 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 0rder 41 Rule 27 of the 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.”

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(Emphasis supplied)

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The Apex Court in the case of Alka Gupta vs

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Narender Kumar Gupta² has held at para Nos. 12 and

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13 as under:

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“12. ………………. The object of Order 2 Rule

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2 of the Code is two-fold. First is to ensure that no

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2 (2010) 10 SCC 141

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defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.”

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13. ……….. Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.”

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(Emphasis supplied)

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The Apex Court observed that the condition precedent for dismissal of suit as barred under Order II Rule 2 CPC is unless plea of such bar is raised by the defendant and issue is framed thereon, Court cannot

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dismiss the suit as so barred. The Apex Court held that where a plaintiff, having one cause of action, omits to claim the whole relief to which he is entitled to, a subsequent suit for the omitted relief is barred by Order II Rule 2. The bar applies equally even if the earlier suit was dismissed by default. It is true that the trial Court has not expressly referred to Order II Rule 2 CPC while dismissing the suit. However, this Court, being the First Appellate Court under Section 96 CPC is empowered to affirm the decree by supplementing additional reasoning.

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The learned counsel for the appellant relied upon the judgment of the Apex Court in Sucha Singh Sodhi (dead by L.Rs) vs Baldev Raj Walia and Another³ (Sucha Singh Sodhi) , wherein the proposition of law has been reaffirmed that Order II Rule 2 CPC prohibits a plaintiff from filing a second suit to claim relief which was available to him in the earlier suit, but omitted or

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3 (2018] 6 SCC 733

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relinquished. The Apex Court at paras 22 to 27 has held as under :

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“22. Order 2 Rule 2 of the Code reads as under:

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“ 2. Suit to include the whole claim – (1) Every

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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.

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(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.”

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23) Order 2 Rule 2(1) of the Code provides that every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action. Liberty is, however, granted to the plaintiff to relinquish any portion of his claim with a view to bring the suit within the jurisdiction of any Court.

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24) It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit

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on the basis of a cause of action pleaded in the plaint, he is under a legal obligation to include and claim all the reliefs against the defendant, which

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have accrued to him on the cause of action pleaded by him in his plaint. In other words, if on the basis of cause of action pleaded by the plaintiff in the plaint, he is entitled to claim two reliefs, namely, “A” and “B” against the defendant(s), then he is under an obligation to claim both “A” and “B” reliefs together in the suit. Order 2 Rule 2(1) of the Code enables the plaintiff to relinquish any portion of his relief with a view to bring the suit within the jurisdiction of any Court.

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25) Order 2 Rule 2(2) of the Code, however, provides that where a plaintiff omits to sue or intentionally relinquishes, any portion of his claim/relief in his suit, then in such event, he shall not be allowed afterwards to sue in respect of the claim/relief so omitted or/and relinquished by him in his suit. In other words Rule 2(2) does not permit the plaintiff to file second suit to claim the omitted or/and relinquished relief.

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26) In our opinion, the sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff.

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27) Therefore, we have to examine the question as to whether the plaintiff was entitled to claim a relief of specific performance of agreement in the previous suit on the basis of cause of action pleaded by the plaintiff in the previous suit against the respondents/defendants in relation to suit property.”

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In the present case, the cause of action for both O.S.No. 327/2015 (injunction) and the present suit (O.S.177/2019) specific performance arises out of the agreement of sale dated 09.04.2014 (Ex.P1). Thus, while the appellant seeks to place reliance on Sucha Singh Sodhi (supra) , the ratio herein in fact goes against the appellant, as it reinforces the principle that a subsequent suit for a relief that was available in the earlier suit is barred under Order II Rule 2 CPC.

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Therefore on an independent assessment, this Court is satisfied that the present suit is barred in light of the express mandate of Order II Rule 2 CPC, as the plaintiff cannot be permitted to split up his cause of action

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and vex the defendants twice over the same agreement

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dated 09.04.2014.

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Article 54 reads as under:

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54.	For specific	Three years	The date fixed for
	performance		the performance,
	of a contract		or, if no such date
			is fixed, when the
			plaintiff has notice
			that performance
			is refused.

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17. Article 54, the above provision prescribes (1) 3

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years from the date fixed for performance or (2) if no date is fixed from the date when the plaintiff has notice that performance is refused. The “date” means the specific date fixed and limitation begins on notice of refusal and when no date is fixed the first clear refusal.

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Exhibit P1 dated 09.04.2014 does not fix a specific date for execution. It envisages completion within 3 months after furnishing of documents i.e., the time was

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not fixed within the Article 54's first limb. Hence, the second limb applies. In OS No. 327 of 2015, the defendants categorically denied the agreement in their written statement dated 29.07.2015 and the plaintiff himself pleaded cause of action as early as 22.04.2015 in the earlier suit. Either way, the plaintiff had notice of the refusal in 2015. Merely because he issues a notice in the year 2019, the suit cannot be held to be within limitation. On the other hand, the present suit was instituted on 09.09.2019 well beyond 3 years and is therefore barred under Article 54.

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The trial Court's judgment and decree does not suffer from any perversity or illegality and deserves confirmation. Accordingly, the points framed for consideration are answered and the Court pass the following :

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ORDER

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(i) The Regular First Appeal is dismissed.

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