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2019 (11) TMI 1613 - SC - Indian LawsSuit for specific performance - permanent injunction restraining the Defendant from obstructing the possession of the Plaintiff - Order 2 Rule 2 of the Code of Civil Procedure, 1908 of CPC - HELD THAT - The suit for injunction was instituted on 30 October 1996. Admittedly, no leave of the Court was sought Under Order 2 Rule 2(3) of the Code of Civil Procedure in the earlier suit to institute a suit for specific performance subsequently. Order 2 Rule 2(1) is premised on the foundation that the whole of the claim which a Plaintiff is entitled to make in respect of a cause of action must be included. However, it is open to the Plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the Court. Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation. Hence, a Plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim. A Plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2), Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a Plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises - a Plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished. Paragraph 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26 October 1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the Defendant to perform the contract. Indeed, the Plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26 October 1995. Under the agreement dated 26 October 1995, time for completion of the sale was reserved until 25 October 1996 - the first appellate court also held that if the point did arise for consideration, it would have decided it in favour of the Plaintiff and treated the cause of action for a suit for mesne profit as distinct from a cause of action for the relief of possession of a property from a trespasser. However, on the first point that there was no material on the record to justify the plea of a bar Under Order 2 Rule 2, the District Judge did not rest his decision on his view of the law as regards the construction of Order 2 Rule 2(3). Accordingly, he set aside the dismissal of the suit and remanded it to the Trial Court for a decision on merits. 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 October 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 - the finding which has been arrived at by all the three courts that the subsequent suit filed is barred Under Order 2 Rule 2 does not warrant any interference in this appeal. Admittedly, the Plaintiff has paid over an amount of ₹ 1,50,000 to the Defendant at the time of execution of the agreement on 26 October 1995. Apart from this, the Plaintiff deposited the balance of the consideration of ₹ 30,000 before the first appellate court on 3 February 2012 - the amount which has been deposited by the Plaintiff with the Defendant must be directed to refunded together with interest at the rate of nine per cent per annum. Apart from this, the Plaintiff would be entitled to a refund of ₹ 30,000 which was deposited with the Trial Court on 3 February 2012 together with accrued interest, if any, thereon. Appeal disposed off.
Issues Involved:
1. Bar under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC). 2. Identity of cause of action in earlier and subsequent suits. 3. Requirement of proving the plaint in the previous suit in evidence. 4. Relief under Article 142 of the Constitution for refund of money paid. Detailed Analysis: 1. Bar under Order 2 Rule 2 of the CPC: The primary issue was whether the suit for specific performance was barred by Order 2 Rule 2 of the CPC. The courts below concluded that the suit was barred because the Appellant had previously instituted a suit for injunction without seeking leave of the Court under Order 2 Rule 2(3) CPC. The High Court upheld the findings of the Trial Court and the First Appellate Court, which held that the suit for specific performance was barred due to the earlier suit for injunction. 2. Identity of Cause of Action: The facts revealed that the earlier suit for injunction included a recital of the agreement to sell, the payment of earnest money, and the demand for performance, all of which formed the basis of the subsequent suit for specific performance. The courts found that there was a complete identity of the cause of action between the earlier suit and the subsequent suit. The Plaintiff omitted to sue for specific performance when the earlier suit for injunction was instituted, thus attracting the bar under Order 2 Rule 2(3). The Plaintiff's claim for specific performance was available when the earlier suit was filed, and by not seeking leave of the Court, the Plaintiff was barred from subsequently suing for the omitted relief. 3. Requirement of Proving the Plaint in the Previous Suit in Evidence: The Appellant argued that for the bar under Order 2 Rule 2 to be attracted, the plaint in the earlier suit must be proved in evidence. The Constitution Bench in Gurbux Singh v. Bhooralal held that the Defendant must file the pleadings in the previous suit in evidence to prove the identity of the cause of action. In the present case, the certified copy of the plaint in the earlier suit was marked as Exhibit 137 without any objection from the Plaintiff. The courts found that the Plaintiff was not deprived of an opportunity to explain the pleadings in the earlier suit, and there was no prejudice caused to the Plaintiff. Hence, the bar under Order 2 Rule 2 was upheld. 4. Relief under Article 142 of the Constitution for Refund of Money Paid: Despite dismissing the appeal, the Court exercised its power under Article 142 to render complete justice. The Plaintiff had paid ?1,50,000 to the Defendant at the time of the agreement and deposited the balance of ?30,000 before the first appellate court. The Court directed the Defendant to refund the amount of ?1,50,000 with interest at nine percent per annum and the ?30,000 deposited with the Trial Court together with accrued interest, if any. Similar directions were given in the accompanying Civil Appeal, where the Plaintiff had deposited ?1,40,000 as earnest money and ?30,000 before the Trial Court. Conclusion: The appeal was dismissed, and the judgment of the High Court was maintained. However, the Court directed the Defendant to refund the amounts paid by the Plaintiff with interest, ensuring complete justice between the parties under Article 142 of the Constitution.
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