2018 (4) TMI 679 - SC - Indian Laws

Suit for specific performance of the agreement - Respondent No.2 i.e. the alleged subsequent purchaser filed an application under Order 1 Rule 10 of the Code to become a party (defendant) in the suit - it was alleged that the suit in question (specific performance of agreement) is hit by the provisions of Order 2 Rule 2 of the Code because the relief of specific performance, which is claimed in the present suit could be and ought to have been claimed by the plaintiff - Sucha Singh in the previously instituted suit which he had filed for permanent injunction. Held that - the Trial Court and the High Court erred in allowing the application filed by respondent No.2 under Order 7 Rule 11 of the Code and thereby erred in dismissing the suit as being barred by the provisions of Order 2 Rule 2 of the Code by taking recourse to the provisions of Order 7 Rule 11 of the Code. In our opinion, the provisions of Order 2 Rule 2 of the Code are not attracted to the facts of this case and, therefore, civil suit should not have been dismissed as being barred under Order 2 Rule 2 of the Code. It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit 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 have accrued to him on the cause of action pleaded by him in his plaint - 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. Whether Sucha Singh (original plaintiff) could claim the relief of specific performance of agreement against the respondents/defendants in addition to his claim of permanent injunction in the previously instituted suit? - Held that - the original plaintiff (Sucha Singh), in clear terms, had stated in the previous suit that he wants to withdraw the suit because he wants to file appropriate proceedings before the competent forum in relation to the subject matter of the suit. The Trial Court recorded his statement on 27.11.1998 and allowed withdrawal of the suit - reading of the statement of the original plaintiff (Sucha Singh) coupled with the permission granted by the Court to withdraw the suit satisfies the requirement of Order 23 Rule 1 (3) of the Code. Appeal allowed.

Summary

Issues Involved:
1. Whether the suit for specific performance of the agreement is barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908.
2. Whether the plaintiff was entitled to file a fresh suit for specific performance after withdrawing the previous suit for permanent injunction without explicit permission.

Detailed Analysis:

1. Bar Under Order 2 Rule 2 of the Code of Civil Procedure, 1908:
The central issue was whether the suit for specific performance was barred by the provisions of Order 2 Rule 2 of the Code. The Trial Court and the High Court had dismissed the suit under this provision, holding that the plaintiff should have claimed the relief of specific performance in the previous suit for permanent injunction.

The Supreme Court disagreed with this interpretation. It clarified that Order 2 Rule 2(1) mandates that every suit must include the whole of the claim based on the cause of action pleaded. However, Order 2 Rule 2(2) bars subsequent suits for omitted or relinquished claims only if those claims were available and should have been included in the initial suit based on the same cause of action.

The Court noted that the causes of action for a permanent injunction and specific performance are distinct and arise under different circumstances. A permanent injunction is sought to prevent dispossession, while specific performance is sought to enforce a contractual obligation. These claims are governed by different articles of the Limitation Act and have separate factual bases. Therefore, the relief of specific performance could not have been claimed in the initial suit for permanent injunction.

The Court cited the precedent set in Rathnavathi & Another vs. Kavita Ganashamdas (2015) and concluded that the bar under Order 2 Rule 2 did not apply in this case. The reliefs of permanent injunction and specific performance are not identical and cannot be claimed together based on a single cause of action.

2. Filing Fresh Suit Without Explicit Permission:
The second issue was whether the plaintiff could file a fresh suit for specific performance after withdrawing the previous suit for permanent injunction without explicit permission from the court.

The Supreme Court referred to the case of Gurinderpal vs. Jagmittar Singh (2004), where it was held that the absence of explicit permission to file a fresh suit does not necessarily bar the subsequent suit under Order 2 Rule 2. The Court emphasized that the plaintiff's statement in the previous suit, indicating the intention to withdraw and file appropriate proceedings, was sufficient to satisfy the requirements of Order 23 Rule 1(3) of the Code.

The Court found that the original plaintiff had clearly stated his intention to withdraw the suit to file appropriate proceedings, and the Trial Court had recorded this statement while allowing the withdrawal. This was deemed sufficient to permit filing a fresh suit for specific performance.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgments of the Trial Court and the High Court, and dismissed the application under Order 7 Rule 11 of the Code. The civil suit for specific performance was held maintainable and restored for trial on merits. The Trial Court was directed to expedite the trial and decide the suit within one year without being influenced by the Supreme Court's observations.