High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. RAJESWARAN
Sornam & Others
Versus
A. Venugopal & Others
C.R.P. (PD) Nos. 1398 & 1399 of 2008 & M.P. Nos.1 + 1 of 2008
Decided on : 06-08-2010
Specific Performance - Sale Agreement - Order II Rule 2 C.P.C. - Summary
Fact of the Case:
The plaintiff filed two suits for specific performance of sale agreements against the defendants. The plaintiff was put in possession of the suit property based on the sale agreements but faced disputes and attempts of dispossession by the defendants. The plaintiff filed a bare injunction suit to protect his possession. The defendants filed applications seeking to reject the plaints, contending that the suits were barred under Order II Rule 2 C.P.C.
Finding of the Court:
The court found that the causes of action for filing a comprehensive suit, including the relief of specific performance, were available at the time of filing the previous suit. The court held that the plaintiff omitted to pray for the relief of specific performance in the previous suit and did not obtain leave from the court for filing a fresh suit for the omitted portion. Consequently, the court set aside the orders passed by the trial court and rejected both the present suits as they were barred by Order II Rule 2 C.P.C.
Issues: Whether the causes of action for filing a comprehensive suit, including the relief of specific performance, were available at the time of filing the previous suit. Whether the plaintiff obtained leave from the court for filing a fresh suit for the omitted portion.
Ratio Decidendi: The court held that the plaintiff's causes of action for filing a comprehensive suit, including the relief of specific performance, were available at the time of filing the previous suit. The plaintiff omitted to pray for the relief of specific performance in the previous suit and did not obtain leave from the court for filing a fresh suit for the omitted portion.
Final Decision: The court set aside the orders passed by the trial court and rejected both the present suits as they were barred by Order II Rule 2 C.P.C.
1. As the issue and the parties involved in both these revision petitions are one and the same, a Common order is being passed to dispose of both the Civil revision petitions.
.2. In fact, both the revision petitions have been filed against the Common order dated dated 01.02.2008 made in I.A.No.2263 of 2007 in O.S.No.143 of 2007 and I.A.No.2264 of 2007 in O.S.No.144 of 2007.
.3. Thefacts leading to filing of the above revision petitions are as follows:
.The respondent herein as plaintiff filed two suits namely O.S.No.143 of 2007 and O.S.No.144 of 2007 on the file of the Principal District Judge, Chengalput for specific performance of the two sale agreements dated 19.04.2004 executed by the defendant in favour of the plaintiff.
4. The suit schedule property in O.S.No.143 of 2007 is agricultural lands situated at No.30, Peerkankaranai Village, Tambaram Taluk, Kancheepuram District comprised in S.No.153/1, 2 and 3 admeasuring 1 acre 24 cents out of 2 acres 48 cents. The other 1 acre 24 cents out of 2 acres 48 cents are the schedule mentioned property in O.S.No.144 of 2007.
5. For the sake of convenience, the facts as stated in O.S.No.143 of 2007 are considered for disposing off both the above two Civil revision petitions together.
6. The suit schedule property was originally owned by Thiru Kodiyan, son of Koyilan who had purchased the said property by conveyance Deed dated 111. 1945 registered as Doc.No.1930/45 on the file of the Sub Registrar office, Pallavaram. Subsequently, the above said Kodiyan passed away on 28. 1995 leaving behind his daughter Tmt. Nagambal (now deceased) and his two sons Thiru K.Muthur and K.Murugesan (both of them deceased). The daughter and the two sons of Kodiyan inherited the suit property and subsequently, Thiru K.Muthur passed away on 19. 1972 leaving behind the defendants 1 to 8 as his legal heirs and Kodiyans second son Thiru K.Murugesan died on 11. 1986. Tmt. Nagambal, daughter of Kodiyan and the wife of latge Etti died intestate on 8. 2006 leaving behind the defendants 9 to 17 as her legal heirs.
7. Tmt. Nagambal, the daughter of the deceased Kodiyan and mother, mother-in-law and grandmother of the defendants 9 to 17, defendants 1 to 8 who are all wife, sons, daughters, son-in-law, grand sons and grand daughters of the deceased K.Muthu jointly entered into a sale agreement with the plaintiff agreeing to convey the suit schedule property to the plaintiff for a sale consideration of Rs.48,36,000/-. Accordingly, the major extent of 2 acres 48 cents were bifurcated into two portions each consisting of 1 acre and 24 cents for convenient purposes and two separate sale agreements were entered into between the plaintiff and the defendants. At the time of execution of the sale agreement, the plaintiff paid a sum of Rs.15 lakhs as advance amount to the defendants and the time to conclude the sale consideration is within eleven months. Since the said property was agricultural lands, a lot of technical formalities were involved to convert those lands into residential plots. Further, lay-out permission had to be obtained from C.M.D.A. Therefore, the defendants executed a comprehensive general power of attorney dated 14. 2004 registered as Doc.No.836 of 2004 on the file of the Sub Registrar, Tambaram. As per the Power of Attorney, the plaintiff was empowered to deal with the property for the purpose of obtaining the lay-out permission from the C.M.D.A On the basis of power of attorney, the plaintiff converted the agricultural lands into residential plots and obtained the lay-out permission on 2. 2008.
8. According to the plaintiff, both the sale agreements dated 14. 2004 and the power of attorney were already acted upon and they have not been resented by the defendants.
9. The plaintiff after obtaining the lay-out permission from the appropriate authority, expressed his readiness and willingness to conclude the sale transaction as per the sale agreements dated 14. 2004. He also sent a notic
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