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TMI Blog2016 (7) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Whether the liberty granted to file fresh suit at the time when the earlier suit was withdrawn is confined to a fresh suit for the same relief which was claimed in the earlier suit or entitles the appellant/plaintiff to in the fresh suit also add the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 performa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court record requisitioned. 3. Though the notice is reported to have been served but none appears for the respondent. 4. Though the learned Additional District Judge in dismissing the suit has relied upon my judgment in Lakhbir Singh Vs. Arun Kumar Khanna 209 (2014) DLT 708 but as far as I recollect, Supreme Court in Inbasagaran vs. S. Natarajan (Dead) Through LRs (2015) 11 SCC 12 has taken a view contrary to that taken by me in Lakhbir Singh supra against which it appears no appeal was preferred. 5. The counsel for the appellant seeks time to examine. 6. Even otherwise, it is deemed expedient to give another opportunity to the respondent to appear. 7. List on 19th May, 2016. 3. The counsels were heard on 19th May, 2016 and judgment reserved. 4. The trial court record has been requisitioned and has also been perused. 5. The appellant/ plaintiff on 18th March, 2014 instituted the suit from which this appeal arises pleading (i) that the husband of the respondent/defendant was the owner of property No.C-21, Top Floor, measuring 200 sq yds, Adarsh Nagar, Village Bharola, Netaji Road, Delhi - 33 and had agreed to sell the same to the appellant/plaintiff for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 23rd September, 2013 had already been withdrawn on 21st February, 2014 with liberty to file a fresh and hence the question of bar of Order II Rule 2 CPC did not arise. 8. The learned Additional District Judge, vide order dated 25th November, 2014, on the pleadings of the parties framed the following issues. 1. Whether the suit of the plaintiff is barred by provisions of Order II Rule 2 CPC? OPD. 2. Whether the bayana agreement and receipts produced by the plaintiff are forged and fabricated? OPD. 3. Whether the plaintiff is entitled to the decree of specific performance as prayed? OPP. 4. Whether the plaintiff is entitled to permanent injunction as prayed? OPP. 5. Relief. and ordered the issue No. 1 be treated as a preliminary issue. 9. The learned Additional District Judge, vide impugned judgment/order dated 16th September, 2015, has decided the issue aforesaid in favour of the respondent/defendant and hence rejected the plaint, finding / observing / holding - (a) the appellant/plaintiff had filed a suit for injunction on 24th September, 2013 before senior Civil Judge pleading the agreement to sell and that the defendant had refused to perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim order therein and during the pendency of the said suit instituted the suit for specific performance and thereafter withdrew the earlier suit for injunction. Relying on the dicta of the Supreme Court in M/s. Virgo Industries (Eng) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. (2013) 1 SCC 625 inter alia holding a suit for specific performance filed during the pendency of an earlier suit for injunction for restraining the seller from creating third party rights in the property to be barred by time and finding fault with the reasoning of the High Court that Order II Rule 2 CPC is applicable only when the first suit is disposed of, the suit was held to be barred by Order II Rule 2 CPC. 12. In Inbasagaran supra though the seller had been allotted the property agreed to be sold by the Tamil Nadu Housing Board, the Housing Board had not executed the sale deed in favour of the seller for the reason of the seller having not raised construction. In these circumstances, the seller had agreed to sell the land to the purchaser and agreed to execute sale deed in favour of the purchaser after the sale deed in his own favour had been executed by the Housing Board and which in turn was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of the seller of dispossession from the suit property, then subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be same cause of action; (vi) from the pleadings in the two suits, particularly the cause of action as alleged by the purchaser, it was clear that they were not same and identical; (vii) besides, there was nothing in the suit for injunction filed by the purchaser to show that the purchaser intentionally relinquished any part of his claim for the reason that the suit was for only injunction because of the threat from the side of the seller to dispossess the purchaser from the property; it was only after the seller disclosed the execution of the sale deed in his favour by the Housing Board and denied execution of sale deed in favour of the purchaser that the cause of action for filing the suit for specific performance arose; (viii) the judgment in Virgo Industries (Eng) P. Ltd. supra was not applicable as in that case the plea of the purchaser in the plaint in the suit for injunction was that the seller was attempting to frustrate the agreement by transferring the property to third party; and, (ix) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff that she will come again along with her associates and forcibly dispossess the plaintiff from the suit property. 12. That the plaintiff was/is always ready and willing to perform the part of her contract and is ready to pay the balance payment along with 2% interest as per the terms and conditions mentioned in the aforesaid agreement to sell to the defendant and due to the demise of the husband of the defendant, the agreement cannot be performed. 13. That the defendant along with her associates again came to the plaintiff at the suit property on 30.8.2013, and started throwing the goods lying in the suit property and tried to dispossess the plaintiff from the said property the plaintiff made hue and cry and due to the intervention of the respectable persons of the area, the defendant could not succeed in his illegal motive and design and left the place by threatening the plaintiff that he will come again with more force and will definitely dispossess the plaintiff from the property in question. ... ... ... 16. That the cause of action arose for filing the present suit in favour of the plaintiff and against the defendant on 16.5.2007 when the husband of the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for specific performance was non- performance of the agreement to sell; (iv) both the suits were thus founded on the different causes of action and hence could be filed simultaneously; (v) that the ingredients to file the suit for permanent injunction are different than that of the suit for specific performance; (vi) that even if both the suits are based on identical pleadings and even if the cause of action to sue for relief for specific performance of agreement to sell was available prior to filing of the first suit, the second suit would not be barred by Order II Rule 2 CPC because the cause of action in the two suits is different; (vii) a suit for specific performance could not have been instituted on the basis of cause of action of the first suit; (viii) merely because pleadings of both suits are similar to some extent does not give rise to the Order II Rule 2 of CPC; (ix) it is the cause of action which is material to determine the applicability of bar under Order II Rule 2 and not merely the pleadings; (x) since the plea of Order II Rule 2, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal arises was barred by Order II Rule 2 of CPC. 23. Though I had in order dated 29th April, 2016 reproduced above observed that no appeal appeared to have been filed against Lakhbir Singh supra but my subsequent research discloses Lakhbir Singh Vs. Arun Khanna MANU/DE/2131/2015 whereby the Division Bench of this Court, after noticing Inbasagaran supra and Rathnavathi supra, for similar reasons as have been given by me above, dismissed the appeal, holding Virgo Industries (Eng) P. Ltd. supra to be applicable to facts of that case. 24. Notice may also be taken of yet another judgment of a bench of two Judges in Coffee Board Vs. Ramesh Exports Pvt. Ltd. (2014) 6 SCC 424 where in the context of successive suits for recovery of money, the second suit for recovery of money was held to be barred by Order II Rule 2 CPC reasoning that (i) one ought not to be vexed twice for the same cause; (ii) if different reliefs and claims arise out of the same cause of action then the plaintiff must place all his claims before the Court in one suit and cannot omit one of the reliefs and claims except without leave of the Court; (iii) the bar of Order II Rule 2 CPC comes into operation where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub- rule(1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (emphasis added) 28. Though the Court, in which the earlier suit filed by the appellant/ plaintiff for injunction was pending has not given any reason or expressed any satisfaction that that suit was liable to fail for the reason of some formal defect or there were any sufficient grounds for allowing the appellant/plaintiff to institute a fresh suit, as ought to have been done but the fact remains that the respondent/defendant prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trar of Newspapers of India MANU/KA/1457/2010 (DB). 30. Though I was reluctant to accept the aforesaid view in today's day where litigation is often instituted to harass, oppress and to delay relief to opposite party and not always for resolution of bona fide disputes and more so in the facts of the present case, where it appears that the claim for specific performance is being pursued to delay the ejectment of the appellant/plaintiff as a tenant from the subject premises and taking advantage of the death of the husband of the respondent/defendant and also for the reason of a new view taken by the Supreme Court in M/s. Virgo Industries (Eng.) Pvt. Ltd. supra and which has not been dissented from in any of the subsequent judgments and rather finds support from Coffee Board supra but find myself bound by the judgment of the Division Bench of this Court in Shri N.D. Tiwari Vs. Sh. Rohit Shekhar MANU/DE/3072/2010 holding that the term subject matter in Order XXIII Rule 1(3) (b) of CPC is of wider amplitude than the term cause of action and to have followed Ghulam Muhammad Khan supra, holding that the effect of permission under Order XXIII Rule 1(3) (b) CPC is to leave matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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