Sucha Singh Sodhi (D) Thr.Lrs. vs Baldev Raj Walia

CIVIL APPEAL NO.3777 OF 2018 [Arising out of SLP (C) No.13256 of 2014]

Sucha Singh Sodhi (D) Thr. LRs. .. Appellant(s)

Versus

Baldev Raj Walia & Anr. .. Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal arises from the final judgment and

order dated 18.02.2014 passed by the High Court of Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.04.13 Delhi at New Delhi in RFA No.353 of 2012 whereby 15:55:46 IST Reason: 1 the Single Judge of the High Court dismissed the

appeal filed by the appellants herein and upheld the

judgment and order dated 08.05.2012 passed by the

Additional District Judge, Tis Hazari Courts, Delhi in

Suit No.135 of 2008 by which the suit of the

appellants was dismissed by taking recourse to the

powers under Order VII Rule 11 of the Code of Civil

Procedure, 1908 (hereinafter referred to as “the

Code”).

3) In order to appreciate the short legal issue

involved in the appeal, few relevant facts, which lie in

a narrow compass, need to be mentioned

hereinbelow.

4) Appellants are the plaintiffs whereas the

respondents are the defendants in the civil suit out of

which this appeal arises.

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5) On 11.10.1996, Sucha Singh(original plaintiff)

since dead and now being represented by his legal

representatives (appellant Nos.1 to 4 herein) filed a

suit being Civil Suit No.705/1996 against respondent

No.1 in the Court of Senior Civil Judge, Delhi. The

suit was filed only for grant of permanent injunction.

6) The plaint was founded on the allegations, inter

alia, that respondent No.1 was the owner of the

house, i.e., basement and half of the first floor of the

premises in plot No.1, Gali No.9 situated at Sanwar

Nagar Post Office Raipur Khurd, New Delhi, as

detailed in the plaint (Annexure-P-2) (hereinafter

referred to as “the suit premises”). Respondent No.1,

on 27.02.1996, agreed to sell the suit premises to

Sucha Singh (Plaintiff) for Rs.11,50,000/- and out of

the total amount, Sucha Singh paid a sum of

3 Rs.2,00,000/- by way of advance to respondent No.1

by cheque.

7) It was further averred that Sucha Singh was

placed in possession of the suit premises in

February, 1996. It was alleged that in May, 1996

respondent No.1 demanded more money from Sucha

Singh pursuant to which Sucha Singh further paid

Rs.36,000/- in cash to respondent No.1.

8) It was alleged that on 10.10.1996, respondent

No.1 threatened to dispossess Sucha Singh from the

suit premises and made unsuccessful attempt to

dispossess him with the help of henchmen (Para 13

of the plaint).

9) It is on this cause of action, Sucha Singh filed a

civil suit for permanent injunction on 11.10.1996

against respondent No.1 in relation to the suit

4 premises restraining him from interfering with his

possession over the suit premises.

10) Respondent No.1 filed the written statement,

inter alia, alleging therein that he has already

transferred the suit premises to respondent No.2

herein and, therefore, the remedy of plaintiff-Sucha

Singh, if any, would be to file a civil suit for specific

performance of the agreement against respondent

No.1 but not in prosecuting the suit for permanent

injunction.

11) On 27.11.1998, Sucha Singh (plaintiff) made a

statement in the Court that he wants to withdraw the

civil suit. He also made a statement that he is

withdrawing the civil suit with a view to file

proceedings before the competent forum to claim

appropriate relief against respondent No.1.

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12) The Trial Court, on 27.11.1998, allowed the

original plaintiff (Sucha Singh) to withdraw the civil

suit and passed the following order:

“It is submitted by the counsel for plaintiff that he wants to withdraw the suit from this court to be filed before the appropriate forum. Counsel for defendant has no objection for withdrawal of the suit by the plaintiff, however asking for cost incurred. Statements of both the parties have been recorded separately. Parties shall be bound by their statements as their undertakings in the court.

I have perused the records of the file and statements of both the parties. The plaintiff is allowed to withdraw the suit subject to cost of Rs.500/- to be paid to the defendant. Cost paid in the court. After completion file be consigned to Record Room.”

(ARCHANA SINHA) CIVIL JUDGE, DELHI.

27.11.1998. ”

13) On 25.02.1999, Sucha Singh, filed civil suit

No.54 of 1999 (Re-numbered as Suit No.135 of 2008)

in the Court of Additional District Judge, Tis Hazari

Courts, Delhi against respondent No.1 for specific

6 performance of the agreement dated 27.02.1996. In

Para 13, the plaintiff stated the facts for constituting

the accrual of cause of action for filing the suit for

specific performance of the agreement.

14) 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.

The application was allowed and respondent No.2

was arrayed as defendant No. 2.

15) Both the respondents (defendants No.1 and 2)

filed their written statement and denied the plaintiff's

claim on various grounds on facts and in law.

Respondent No.2 also filed an application under

Order 7 Rule 11 of the Code for rejection of the

plaint.

16) It was, inter alia, alleged that the suit in

question (specific performance of agreement) is hit by

7 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. It was contended that

non-claiming of relief of specific performance of the

agreement in the previously instituted suit though

available to the plaintiff for being claimed on the

cause of action pleaded in the previous suit would

attract the bar contained in Order 2 Rule 2 of the

Code to the subsequently instituted civil suit wherein

a relief of specific performance of agreement is

claimed and, therefore, such suit cannot be now tried

on merits.

17) During the pendency of the suit, Sucha Singh

died on 04.08.2000 and his legal representatives

8 (appellants herein) were brought on record as

plaintiffs to continue the lis. The appellants

(plaintiffs) opposed the application filed by defendant

No.2 (respondent No.2 herein) and contended that

the suit for specific performance of agreement is

maintainable and not barred by Order 2 Rule 2 of the

Code.

18) The Trial Court, however, by order dated

08.05.2012 allowed respondent No.2's application

and, in consequence, dismissed the appellants’ suit

holding that it is barred by the provisions of Order 2

Rule 2 of the Code. In other words, the Trial Court

held that the plaintiffs ought to have claimed the

relief of specific performance of the agreement in the

previous suit, which was filed by Sucha Singh

(original plaintiff) for permanent injunction because

9 according to the Trial Court such relief was available

for being claimed when the first suit was filed.

19) The plaintiffs felt aggrieved and filed appeal

before the High Court of Delhi. By impugned

judgment, the High Court while concurring with the

reasoning and the conclusion of the Trial Court

dismissed the appeal. Against the said judgment, the

plaintiffs felt aggrieved and have filed the present

appeal by way of special leave in this Court.

20) Heard Mr. Bhim Sain Jain, learned counsel for

the appellants, Mr. Jayant Bhushan, learned senior

counsel for respondent No.1 and Mr. Pramod Dayal,

learned counsel for respondent No.2.

21) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal and while setting aside

the judgment and order of the High Court and the

10 Trial Court, dismiss the application filed by

respondent No.2 (defendant No. 2) under Order 7

Rule 11 of CPC and restore the civil suit No.54 of

1999 (re-numbered as Suit No.135/2008) filed by the

appellants herein against the respondents out of

which this appeal arises for being tried on merits in

accordance with law.

22) In our considered opinion, 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

11 suit should not have been dismissed as being barred

under Order 2 Rule 2 of the Code.

23) Order 2 Rule 2 of the Code reads as under:

“2. Suit to include the whole claim – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”

24) Order 2 Rule 2(1) of the Code provides that

every suit shall include the whole of the claim, which

the plaintiff is entitled to make in respect of the

cause of action. Liberty is, however, granted to the

plaintiff to relinquish any portion of his claim with a

view to bring the suit within the jurisdiction of any

Court.

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25) 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. In other words, if on the basis of cause of

action pleaded by the plaintiff in the plaint, he is

entitled to claim two reliefs, namely, “A” and “B”

against the defendant(s), then he is under an

obligation to claim both “A” and “B” reliefs together in

the suit. Order 2 Rule 2(1) of the Code enables the

plaintiff to relinquish any portion of his relief with a

view to bring the suit within the jurisdiction of any

Court.

26) Order 2 Rule 2(2) of the Code, however, provides

that where a plaintiff omits to sue or intentionally

13 relinquishes, any portion of his claim/relief in his

suit, then in such event, he shall not be allowed

afterwards to sue in respect of the claim/relief so

omitted or/and relinquished by him in his suit. In

other words Rule 2(2) does not permit the plaintiff to

file second suit to claim the omitted or/and

relinquished relief.

27) In our opinion, 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.

28) Therefore, we have to examine the question as

to whether the plaintiff was entitled to claim a relief

of specific performance of agreement in the previous

14 suit on the basis of cause of action pleaded by the

plaintiff in the previous suit against the

respondents/defendants in relation to suit property.

29) In other words, the question that arises for

consideration is 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?

30) Our answer to the aforementioned question is in

favour of the plaintiffs (appellants) and against the

defendants(respondents). In other words, our answer

to the aforementioned question is that the plaintiff

could not claim the relief of specific performance of

agreement against the defendants along with the

relief of permanent injunction in the previous suit for

the following reasons.

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31) First, the cause of action to claim a relief of

permanent injunction and the cause of action to

claim a relief of specific performance of agreement are

independent and one cannot include the other and

vice versa.

32) In other words, a plaintiff cannot claim a relief

of specific performance of agreement against the

defendant on a cause of action on which he has

claimed a relief of permanent injunction.

33) Second, the cause of action to claim

temporary/permanent injunction against the

defendants from interfering in plaintiff's possession

over the suit premises accrues when defendant No.1

threatens the plaintiff to dispossess him from the suit

premises or otherwise cause injury to the plaintiff in

relation to the suit premises. It is governed by Order

39 Rule 1 (c) of the Code which deals with the grant

16 of injunction. The limitation to file such suit is three

years from the date of obstruction caused by the

defendant to the plaintiff (See – Part VII Articles 85,

86 and 87 of the Limitation Act).

34) On the other hand, the cause of action to file a

suit for claiming specific performance of agreement

arises from the date fixed for the performance or

when no such date is fixed, when the plaintiff has

noticed that performance is refused by the defendant.

The limitation to file such suit is three years from

such date (See – Part II Article 54 of the Limitation

Act).

35) Third, when both the reliefs/claims namely, (1)

Permanent Injunction and (2) Specific Performance of

Agreement are not identical, when the causes of

action to sue are separate, when the factual

ingredients necessary to constitute the respective

17 causes of action for both the reliefs/claims are

different and lastly, when both the reliefs/claims are

governed by separate articles of the Limitation Act,

then, in our opinion, it is not possible to claim both

the reliefs together on one cause of action.

36) This Court in Rathnavathi & Another vs.

Kavita Ganashamdas (2015 (5) SCC 223) had the

occasion to examine this very question on somewhat

similar facts in detail. This Court after taking into

account the earlier decisions of this Court which

dealt with this question held in Paras 22 to 31 that

bar contained in Order 2 Rule 2 of the Code on such

facts is not attracted against the plaintiff so as to

disentitle him from filing the subsequent suit to claim

specific performance of agreement against the

defendants in relation to the suit property. 18

37) We apply the law laid down in the case of

Rathnavathi (supra) and hold that the suit filed by

the original plaintiff for specific performance of

agreement against the respondents (defendants) is

not barred by Order 2 Rule 2 of the Code and is held

maintainable for being tried on merits.

38) This takes us to examine another question as to

whether in the absence of any permission/liberty

granted by the Trial Court to the plaintiff at the time

of withdrawing the previous suit filed for permanent

injunction, the plaintiff was entitled to file the suit for

specific performance of agreement against the

defendants in relation to the suit property?

39) In our considered opinion, this question does

not now survive for consideration in the light of what

we have held above. In any event, keeping in view the

law laid down by this Court in Gurinderpal vs.

19 Jagmittar Singh (2004) 11 SCC 219, the question is

answered against the respondents.

40) In somewhat similar facts, the question arose

before this Court in Gurinderpal’s case (supra),

namely, if the order granting permission to withdraw

the suit under Order 23 Rule 1(3) of the Code does

not specifically mention the fact of granting liberty to

the plaintiff to file a fresh suit, whether filing of fresh

suit would be hit by Order 2 Rule 2 of the Code?

41) This Court (three Judge Bench), speaking

through Justice R.C. Lahoti (as His Lordship then

was), held that filing of the second suit is not hit by

Order 2 Rule 2 of the Code and is maintainable for

being tried on merits. This is what this Court held in

Para 6:

“6. Having heard the learned counsel for the parties, we are satisfied that the judgment of the High Court as also of the first appellate court cannot be sustained to the extent to

20 which the bar enacted under Order 2 Rule 2 CPC has been applied. The provisions of Order 2 Rule 2 CPC bar the remedy of the plaintiff-appellant and, therefore, must be strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the court on that very date. The plaintiff-appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn “in view of the statement of the plaintiff”. A conjoint reading of the order of the court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit, obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellate court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15-6-1994. That finding of the first appellate court ought not to have been sustained by the High Court.”

42) Applying the aforementioned principle of law to

the case at hand, we find that the original plaintiff

(Sucha Singh), in clear terms, had stated in the

21 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.

43) In our considered opinion, 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. It certainly enabled the

plaintiff to file a fresh suit, namely, the civil suit for

claiming specific performance of the agreement

against the defendants. In our view, the Court was

entitled to take into consideration the statement

made by the original plaintiff (Sucha Singh) for

withdrawing the suit and filing it afresh and his

22 statement could be made a part of the order for

granting permission to withdraw the civil suit and file

a fresh suit as was held in the case of Gurinderpal

(supra).

44) In our view, therefore, this submission urged by

the learned counsel for the respondents has no merit.

45) Learned counsel for respondent No.2 (defendant

No.2) then addressed the Court on the merits of the

suit. We are afraid, we cannot go into any question

relating to the merits of the controversy involved in

the suit. It is for the Trial Court to now proceed to

try the suit on merits and decide the suit in

accordance with law.

46) In view of the foregoing discussion, we cannot

concur with the reasoning and the conclusion arrived

at by the Trial Court and the High Court which

wrongly allowed the application filed by respondent

23 No.2 (defendant No.2) under Order 7 Rule 11 of the

Code and, in consequence, dismissed the appellants’

(plaintiffs’) suit as being barred by the provisions of

Order 2 Rule 2 of the Code.

47) As a consequence, the appeal succeeds and is

accordingly allowed. The impugned judgment is set

aside. The application filed by respondent No.2

(defendant No.2) under Order 7 Rule 11 of the Code

is dismissed.

48) The civil suit (No.54/99 re-numbered as

135/2008) filed by the appellants against the

respondents is held maintainable. It is accordingly

restored to its original file for being tried on merits

and in accordance with law.

49) The Trial Court is directed to decide the civil

suit on merit expeditiously and preferably within one

24 year without being influenced by any of our

observations.

………………………………..J (R.K. AGRAWAL)

..………………………………J. (ABHAY MANOHAR SAPRE)

New Delhi, April 13, 2018

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