2016 (7) TMI 1569 - HC - Indian Laws

Maintainability of suit - specific performance while filing the earlier suit not filed - fresh injunction suit - whether owing to the appellant/plaintiff having omitted to sue for the relief of specific performance while filing the earlier suit, the appellant/plaintiff was precluded from afterwards suing for the relief of specific performance? - HELD THAT - As per the own case of the appellant/plaintiff, (i) the date fixed in the bayana agreement of which specific performance was sought, was end of January, 2012; (ii) the appellant/plaintiff had approached the respondent/defendant for performing her part of the agreement to sell but the respondent/defendant had refused; (iii) the appellant/plaintiff had also got issued a legal notice to the respondent/defendant to perform her part of the agreement and in response thereto also the respondent/defendant had refused to perform her part of the agreement; (iv) that the respondent/defendant had become dishonest and was wanting to evict the appellant/plaintiff from the suit property of which possession had been given in pursuance to the agreement to sell and to sell the suit property to defeat the agreement of sale thereof in plaintiff's favor - It is not the case of the appellant/plaintiff that after the institution of the earlier suit for injunction she had approached the respondent/defendant to perform her part of the agreement or that the respondent/defendant had refused or that anything else had happened after the institution of the suit for injunction which may have furnished a cause of action for the suit for specific performance - Rather it is the express case of the appellant/plaintiff that she was filing the suit for specific performance after withdrawing the earlier suit for permanent injunction with liberty to file a fresh suit. The question is answered in favour of the respondent/defendant and against the appellant/plaintiff and also it is held that the suit from which this appeal arises was barred by Order II Rule 2 of CPC. Whether the liberty granted to file fresh suit at the time when the earlier suit was withdrawn is confined to a fresh suit for the same relief which was claimed in the earlier suit or entitles the appellant/plaintiff to in the fresh suit also add the relief of specific performance of agreement to sell? - HELD THAT - The suit from which this appeal arises was being taken up along with a suit for ejectment of the appellant/plaintiff from the premises filed by the respondent/defendant. The agreement to sell of which the appellant/plaintiff claims specific performance is not a registered one. The appellant/plaintiff cannot thus be said to be in possession of the premises in part performance of the agreement to sell and benefit of Section 53A of the Transfer of Property Act, 1881 would thus not be available. Thus, while allowing the appeal, it is clarified (i) that the pendency of the suit for specific performance will not come in the way of the suit for ejectment filed by the respondent/defendant against the appellant/plaintiff and/or in execution of the decree therein; and, (ii) it will be open to the respondent/defendant to apply to the Trial Court for an order that the provisions of Section 52 of the Transfer of Property Act, 1881 and the principle of lis pendens would not be attracted by the pendency of the suit for specific performance. Appeal allowed.

Summary

Issues Involved:
1. Bar under Order II Rule 2 of the CPC.
2. Validity of bayana agreement and receipts.
3. Entitlement to specific performance.
4. Entitlement to permanent injunction.
5. Relief.

Issue-wise Detailed Analysis:

1. Bar under Order II Rule 2 of the CPC:
The primary issue was whether the suit for specific performance was barred by Order II Rule 2 CPC due to the appellant's failure to include this claim in a previous suit for permanent injunction. The court examined precedents, including the Supreme Court's judgments in Virgo Industries (Eng) P. Ltd. vs. Venturetech Solutions P. Ltd. and Inbasagaran vs. S. Natarajan. The court noted that if the earlier suit for injunction included claims suggesting the seller's actions were intended to frustrate the agreement to sell, a subsequent suit for specific performance would be barred. The appellant's earlier suit for injunction did include such claims, making the subsequent suit barred by Order II Rule 2 CPC. The court also referenced Rathnavathi vs. Kavita Ganashamdas, emphasizing that the cause of action for the earlier suit for injunction and the subsequent suit for specific performance were different, but ultimately found the facts of the present case aligned more with Virgo Industries.

2. Validity of Bayana Agreement and Receipts:
The trial court had framed an issue regarding the authenticity of the bayana agreement and receipts, questioning if they were forged or fabricated. However, since the suit was dismissed on the preliminary issue of Order II Rule 2 CPC, the court did not delve into this matter.

3. Entitlement to Specific Performance:
The appellant sought specific performance of the bayana agreement dated 16th May 2007. The court noted that the appellant had paid part of the sale consideration and was in possession of the property. However, due to the bar under Order II Rule 2 CPC, the court did not proceed to examine the merits of the specific performance claim.

4. Entitlement to Permanent Injunction:
The appellant also sought injunctions against dispossession and creating third-party interests. The court noted that the earlier suit for permanent injunction had been withdrawn with liberty to file afresh, but this liberty did not extend to filing a suit for specific performance, as the earlier suit already included claims related to the agreement to sell.

5. Relief:
The court allowed the appeal, setting aside the impugned judgment and decree, and directed the suit to proceed to trial on other issues. It clarified that the pendency of the suit for specific performance would not affect the respondent's suit for ejectment or the execution of any decree therein. The court also allowed the respondent to seek an order from the trial court to ensure that the principle of lis pendens would not apply to the suit for specific performance.

Conclusion:
The appeal was allowed, and the case was remanded for trial on other issues, with specific clarifications regarding the impact on the respondent's suit for ejectment and the applicability of lis pendens. The court emphasized the need for careful examination of the factual matrix and legal provisions in determining the applicability of Order II Rule 2 CPC.