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2008(2) Supreme 127
Supreme Court of indiA
S.B. Sinha & Harjit Singh Bedi, JJ.
Vimlesh Kumari Kulshrestha — Petitioner
versus
Sambhajirao and Anr. — Respondents
Appeal (civil) 2976 of 2004
Decided on : 05-02-2008
1930 Lahore 599 (2) – Cited with approval.
AIR (1992) Kar. 85 – Noticed with approval.
(b)Code of Civil Procedure, 1908 – Order XXIII, rule 1 – Trite that even a presumption of implied grant can be drawn – In the facts of the case, an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passed by the Court – High Court erred in applying provisions of Order XXIII, rule 1. (Para 11)
AIR 1985 Punj and Har 219 – Noticed with approval.
(c)Interpretation of Agreement – If the words of the habendum are manifestly contradictory and repugnant to those in the premises, they must be disregarded – The agreement referring to the property where the appellant was living and not any other property – Therefore if the appellant was living in a part of the property, only the same was the subject matter of sale and not the entire premises – The entire agreement was required to be read as a whole and so read, it becomes uncertain – Being uncertain, the agreement could not be given effect to – No infirmity in High Court judgment. (Paras 17 to 20)
1932 All. E. R. 494; (1897) 2 Ch. 281 – Relied upon.
Facts of the case:
1.Plaintiff, in a suit for specific performance of contract, is the appellant herein. She was a tenant in a portion of the premises in respect whereof the agreement of sale dated 1.4.1986 is said to have been entered into by and between the parties hereto.
2.A suit for specific performance was filed on 9.9.1986 which was withdrawn.
3.Respondent No. 1, however, had entered into another agreement of sale with the respondent No. 2. Therefore he filed an application for impleading himself as a party in the suit. It was allowed.
4.The learned Trial Judge decreed the suit.
5.High Court however has reversed the same.
Findings of the Court :
While the High Court erred in applying the provisions of Order XXIII, rule 1; it was correct in observing that the agreement of sale dated 1.4.1986 being vague, no decree for specific performance could be granted.
Result : Appeal dismissed.
judgment
S.B. Sinha, J. —
1.Plaintiff, in a suit for specific performance of contract, is the appellant herein. She was a tenant in a portion of the premises in respect whereof the agreement of sale dated 1.4.1986 is said to have been entered into by and between the parties hereto.
The relevant clauses of the said agreement read as under:-
“It was settled down in between the above parties that house of party No. 1, in which party No. 2 is living, party No. 1 will sell for Rs. 48,000/- (Forty eight thousand only) and as a part payment received Rs. 24,000/- (Rupees twenty four thousand) by cheque by party No. 2 from party No. 1 on 20.3.86.
(2)Party No. 1 will obtain permission for sale of the house from Ceiling Officer and will give information to party No. 2 and within three months of the information the party No. 2 will get executed the Registry and will make the payment of balance amount.
(3)That Party No. 1 assured to Party No. 2 that regarding the rights of ownership and transfer of the house there is no dispute and if need arises then party No. 1 will get permission from the Court and Party No. 2 will have the right that on the error of party No. 1 will get registry executed through court and the expenses will have to be borne by party No. 1.
Therefore, this agreement wrote down and received Rs. 24,000/-(Rupees twenty four thousand). The map of residential house prepared and will remain with this document. The boundaries are wrote down under :
North:House Sambhajirao Angre.
West:Property of Sambhajirao Angre
East:Road
South:House Hariram Kapoor”
2.A suit for specific performance was filed on 9.9.1986 which was marked as O.S. No. 228A/1986. Proper court fees were not paid thereupon. Having regard to an objection taken in that behalf by the first respondent herein in his written statement, allegedly another suit was filed by her on 23.3.1987, which was marked as O.S. No. 13A of 1987. O.S. No. 228A of 1986, on the premise that another suit has been filed, was sought to be withdrawn. The application for withdrawal was allowed.
3.Respondent No. 1, however, had entered into another agreement of sale with the respondent No. 2. He filed an application for impleading himself as a party in the suit. It was allowed.
4.The learned Trial Judge decreed the suit. By reason of the impugned judgment, however, the High Court has reversed the same, holding :
(i)In view of Order XXIII Rule 1 of the Code of Civil Procedure, the permission for filing another suit on the same cause of action having not been obtained, the second suit was not maintainable; and;
(ii)The agreement of sale dated 1.4.1986 being vague, no decree for specific performance could be granted.
5.Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellant in support of the appeal raised the following contentions :
(a)The High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the second suit having been instituted during the pendency of the first suit, Order XXIII Rule 1 of the Code of Civil Procedure was not applicable.
(b)The agreement was required to be read in its entirety and so read, it would be evident that the subject matter of sale was the entire house and not a part thereof.
6. Mr. S.S. Khanduja, learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment.
7.It is not in dispute that O.S. No. 13A of 1987 was filed during pendency of O.S. No. 228A of 1986.
Order XXIII Rule 1 of the CPC stricto sensu therefore, was not applicable, the relevant provision whereof reads thus:
1.Withdrawal of suit or abandonment of part of claim. (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim :
(2)–..
(3)Where the Court is satisfied, -
(a)that a suit must fail by reason of some formal defect, or
(b)that there are sufficient grounds for allowing the plaintiff to institute a fresh suit
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