Back
SUPREME COURT OF INDIA
R.K. Agrawal, Abhay Manohar Sapre, JJ.
Sucha Singh Sodhi (D) Thr. LRs. – Appellants
Versus
Baldev Raj Walia & Anr. – Respondents
Civil Appeal No.3777 of 2018 [Arising out of SLP (C) No.13256 of 2014]
Decided On : 13-4-2018
(b) Code of Civil Procedure, 1908 – Order II Rule 2(2) – Cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement – Independent and one cannot include the other and vice versa – 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. (Para 31, 32)
(c) Code of Civil Procedure, 1908 – Order XXXIX Rule 1(c) – Temporary/permanent injunction governed by Order XXXIX Rule 1(c), limitation being three years – Articles 85, 86 and 87, Limitation act, 1963 – Cause of action for specific performance arises from the date fixed for performance or date of knowledge, limitation being three years – Held, not possible to claim both the reliefs together on one cause of action – Held plaintiff’s suit for specific performance not barred by Order II Rule 2(2). (Para 33, 34, 35, 37)
(2015) 5 SCC 223 – Relied upon
(d) Code of civil Procedure, 1908 – Order XXIII rule 1(3) – Plaintiff in his application for withdrawing the previous suit stating that he wants to file appropriate proceedings before competent forum – Trial court permitting – No need of specific liberty to file second suit – Order II Rule 2(2) not attracted. (Para 42, 43)
(2004) 11 SCC 219 – Relied upon
Facts of the case:
On 11.10.1996, Sucha Singh (original plaintiff) filed a suit for grant of permanent injunction.
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.
The Trial Court allowed the original plaintiff (Sucha Singh) to withdraw the civil suit.
Thereafter Sucha Singh, filed civil suit against respondent No.1 for specific performance of the agreement dated 27.02.1996.
Respondent No.2, the alleged subsequent purchaser, filed an application to become a party (defendant) in the suit. The application was allowed and respondent No.2 was arrayed as defendant No. 2.
Both the respondents (defendants No.1 and 2) denied the plaintiff's claim on various grounds on facts and in law.
The Trial Court allowed respondent No.2's application and dismissed the appellants' suit holding that it is barred by the provisions of Order 2 Rule 2 of the Code.
The plaintiffs filed appeal before the High Court which has been dismissed.
Finding of the Court:
Order II Rule 2(2) is not attracted to the present case.
Result: Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
Leave granted.
2. This appeal arises from the final judgment and order dated 18.02.2014 passed by the High Court of Delhi at New Delhi in RFA No.353 of 2012 whereby 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.
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 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 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.
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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
