Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(Ker) 883

IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. CHITAMBARESH, SATHISH NINAN, JJ.
Sasidharan Nair – Appellant
Versus
Kunju Mohammed Unni and Others – Respondents
R.F.A. No. 752 of 2008
Decided On : 10-08-2017

Advocates Appeared:
For the Appellants : G. Shrikumar, R. Sanjith and C.S. Sindhu Krishnah.
For the Respondents: R.D. Shenoy, P.K. Muhammed and P.K. Ravisankar.

Headnote:Specific Relief Act 1963, S. 20 - Civil Procedure Code, 1908 - O.II R. 2 – Relief of precise presentation cannot be decided if absent to be demanded in the previous suit for injunction against estrangement.

Judgement Key Points

Key Points: - The court discusses whether a suit for specific performance can be maintained after omitting that relief in a prior suit for injunction against alienation, under Order II Rule 3 CPC (!) . - It analyzes the bar created by Order II Rule 3 CPC on claiming specific relief in a subsequent suit when the same cause of action was involved in an earlier suit that did not seek that relief (!) . - The judgment addresses the discretion under Section 20 of the Specific Relief Act in granting specific performance in light of conduct and overlapping claims (!) (!) . - It notes the close relation and overlap between the causes of action in the two suits, including alleged attempts to alienate the property to third parties (!) . - It references the consent and conduct of the parties, including the defendant’s offer to repay advances, in evaluating the remedy and the decree for a refund amount with interest (!) . - It records that the regular first appeal was allowed with no costs, and modifications to the decree were made accordingly, including a monetary award and a charge on the property (!) (!) . - It discusses the permissibility of withdrawing a suit in connection with preserving other rights and the binding effect of orders issued without notice (!) . - It emphasizes that relief of specific performance can be denied where the plaintiff procrastinated or where there is discrepancy in extent and other conduct issues (!) . - It cites the extension of time for performance and its impact on the maintainability of subsequent claims (!) . - It clarifies that the court overruled prior interpretations restricting specific performance where omitted in a previous suit, in the context of the present case (!) (!) .

What is the effect of Order II Rule 3 CPC on maintaining a suit for specific performance when another suit seeks injunction against alienation?

What is the court’s stance on granting specific performance when the plaintiff had omitted to claim it in a prior suit for injunction, and whether such omission bars subsequent relief under the Specific Relief Act?

What are the court’s conclusions regarding the remedies under Section 20 and the discretion to grant specific relief in the context of overlapping causes of action and multiple suits?

JUDGMENT :

V. Chitambaresh, J.

1. Specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit observed Lord Cranworth in Eads vs. Williams, (1854) 4 D.M.G. 691 and quoted by Stirling J. in Levy vs. Stogdon, (1898) 1 Ch.D 484. The above observation still holds good in law a century and a half later as is revealed from the facts unfolded in the present case.

2. The decree for specific performance of Ext.A1 agreement for sale granted in O.S. No. 201/2007 is assailed on the ground that the suit is hit by Order II Rule 3 of the Code of Civil Procedure, 1908 [the CPC for short]. The plaintiffs had earlier filed O.S. No. 336/2005 on the file of the Court of the Munsiff of Perumbavoor wherein one of the reliefs is a decree for injunction against alienation. Prayer (b) in Ext.B1 plaint in O.S. No. 336/2005 is extracted below:

“(b) to pass a decree and judgment against the defendant by passing permanent prohibitory injunction from alienating the plaint "A" schedule property in favour of third party and against committing waste in the property.”

Interim injunction sought therein in I.A. No. 2419/2006 was declined by Ext.A14 order observing that the plaintiffs have not filed a suit for specific performance even after the time fixed in the contract has expired. The appeal filed therefrom as C.M.A. No. 19/2007 on the file of the Court of the Additional District Judge of North Paravur was refused to be entertained by Ext.A13 judgment. The said judgment was challenged by the plaintiffs in W.P. (C) No. 11654/2007 on the file of this Court which was disposed of by Ext.A12 judgment at the stage of admission itself. It appears from Ext.A12 judgment that leave was granted to the plaintiffs to withdraw from O.S. No. 336/2005 even without issuing notice to the defendant or hearing him.

3. The plaintiffs in the meanwhile had filed O.S. No. 201/2007 on the file of the Court of the Subordinate Judge of Perumbavoor for a decree directing the defendant to execute the sale deed. The plaintiffs contended that a sum of Rs. 10,00,000/- was paid as advance on the date of Ext.A1 agreement itself followed by payment of Rs. 5,00,000/- and Rs. 15,00,000/- later. It is the case of the plaintiffs that the defendant did not come forward to execute the sale deed after receiving the balance sale consideration and hence the suit. The defendant maintained that the plaintiffs cannot again sue for the relief of specific performance after having filed a suit for a decree of injunction against alienation earlier. The defendant added that the discretion under Section 20 of the Specific Relief Act, 1963 [the Act for short] has to be exercised against the plaintiffs in the facts and circumstances. The court below has decreed the suit directing the defendant to execute the sale deed on the plaintiffs depositing the balance sale consideration within a stipulated time. The defendant has come up in this regular first appeal under Section 96 read with Order XLI Rule 1 of the CPC seeking to set aside the decree of the court below on various grounds.

4. We heard Mr. G. Sreekumar, Senior Advocate on behalf of the appellant/defendant and Mr. R.D. Shenoy, Senior Advocate on behalf of the respondents/plaintiffs.

5. We may at the outset refer to Order II Rule 3 of the CPC which is extracted below:

“3. Omission to sue for one of several reliefs – A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation - For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

The cause of action alleged by the plaintiffs in O.S. No. 336/2005 w

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