2008 (2) TMI 950 - SC - Indian Laws

Suit for specific performance of contract - Pendency of the first suit - permission for filing another suit on the same cause of action - agreement of sale entered into by and between the parties - HELD THAT - It is no doubt true that ordinarily an endeavour should be made by the court to give effect to the terms of the agreement but it is also a well settled principle of law that an agreement is to be read as a whole so as to enable the court to ascertain the true intention of the parties. It is not in dispute that no plan was prepared. A purported sketch mark was attached with the plaint, which was not proved. Evidences brought on record clearly lead to the conclusion that the appellant was not the tenant in respect of the entire house. She, in her deposition, even did not claim the same. Another tenant was occupying some rooms in the same premises. Appellant herein in her evidence also admitted that no map was attached to the agreement. The very fact that the premises sought to be transferred could not adequately be described; a plan was sought to be attached. According to the appellant herself, she had been residing only in the ground floor, along with open land on the northern side and had been using two rooms, a Patore alongwith open land of the upper portion. She had not received the possession of the disputed house. It is, therefore, evident that she did not claim herself to be a tenant in respect of the entire house and, thus, the same was not agreed to be sold. An agreement of sale must be construed having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant. Appellant was only a tenant in respect of a part of the premises. It may be that the boundaries of the house have been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was not even prepared. It has not been found that the sketch of map annexed to the plaint conformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain could not be given effect to. Thus, we do not find any infirmity in the judgment of the High Court. The appeal is dismissed.

Summary

Issues Involved:
1. Maintainability of the second suit under Order XXIII Rule 1 of the Code of Civil Procedure.
2. Vagueness of the agreement of sale dated 1.4.1986 and its enforceability for specific performance.

Issue-wise Detailed Analysis:

1. Maintainability of the Second Suit:

The High Court held that the second suit was not maintainable under Order XXIII Rule 1 of the Code of Civil Procedure because permission to file another suit on the same cause of action was not obtained. However, the Supreme Court disagreed, stating that Order XXIII Rule 1 was not applicable since the second suit was filed during the pendency of the first suit. The Court cited several precedents, including *Mangi Lal Vs. Radha Mohan* and *P.A. Muhammed Vs. The Canara Bank*, which supported this interpretation. The Court emphasized that the rule applies only to suits instituted after the withdrawal or abandonment of previous suits. Further, the Court opined that implied permission for withdrawal could be inferred from the conduct of the parties and the order of the trial court, which accepted the withdrawal and directed the payment of legal costs.

2. Vagueness of the Agreement of Sale:

The High Court found the agreement of sale dated 1.4.1986 to be vague and unenforceable for specific performance. The Supreme Court upheld this view, stating that an agreement must be read as a whole to ascertain the true intention of the parties. The Court noted that the appellant was not a tenant of the entire house but only a part of it. The agreement referred to the property where the appellant was living, which was only a part of the premises. The Court highlighted that no plan was prepared and the purported sketch attached to the plaint was not proven. The description of the property was inadequate, and the plan was intended to make it definite, which was never prepared. The Court concluded that the agreement was uncertain and could not be enforced.

The Court also referenced the legal maxim "Certum est quod certum reddi potest" (That is certain which can be made certain), which did not assist the appellant's case. The Court emphasized that the entire agreement must be read to determine the description of the property, and in this case, the agreement remained uncertain. The oral evidence suggested that the entire property was not to be sold as the appellant was not a tenant of the entire premises.

Conclusion:

The Supreme Court dismissed the appeal, affirming the High Court's judgment. The Court held that the second suit was maintainable as Order XXIII Rule 1 was not applicable, but the agreement of sale was too vague to be enforced for specific performance. The appeal was dismissed with no order as to costs.