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2011 Supreme(Mad) 162
2011 (2) MWN(Civil) 33, 2011 AIR(Mad) 88, 2011 (4) MLJ 770
High Court of Judicature at Madras
G. RAJASURIA
M. Vijayalakshmi
Versus
T. Shanmugam & Another
S.A.No.620 of 2010 & M.P.No.1 of 2010
Decided on : 12-01-2011
For the Appellant:R. Margabandhu, Advocate.
For the Respondents:T.P. Prabhakaran, Advocate.
The main legal point established is that a party must file a suit seeking efficacious remedy as per Section 41(h) of the Specific Relief Act, 1963, and that subsequent suits based on the same cause of action may be barred under Order II Rule 2 of the Code of Civil Procedure.
Headnote:
Specific Relief Act - Injunction - Section 41(h)
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction, which was dismissed by the trial court and the appellate court. The plaintiff subsequently filed another suit for specific performance of contract, which was also dismissed invoking Order II Rule 2 of the Code of Civil Procedure.
Finding of the Court:
The court found that the plaintiff should have filed a suit for getting efficacious remedy as per Section 41(h) of the Specific Relief Act, 1963. The courts below decided that the plaintiff should file a separate suit for efficacious remedy.
Issues: The substantial question of law was whether there was any perversity or illegality in the judgments passed by both the courts below invoking Section 41(h) of the Specific Relief Act, 1963.
Ratio Decidendi: The court held that the plaintiff should have filed a suit for getting efficacious remedy as per Section 41(h) of the Specific Relief Act, 1963, and that the plaintiff's subsequent suit invoking Order II Rule 2 of the Code of Civil Procedure was not justified.
Final Decision: The court disposed of the second appeal, finding no perversity or illegality in the judgments passed by both the courts below.
1. This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 30.09.2009, passed by the learned Subordinate Judge, Ranipet in A.S.No.25 of 2009 confirming the judgment and decree passed by the learned District Munsif, Ranipet dated 28.01.2009 in O.S.No.12 of 2008.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. Heard the learned counsel for the appellant/plaintiff. Whereas, despite printing the name of the learned counsel for the respondents, there is no representation.
4. The epitome and the long and short of the relevant facts, absolutely necessary and germane for the disposal of this Second Appeal would run thus:
a) The plaintiff filed the suit O.S.No.12 of 2008 seeking the following reliefs:
(a) For a permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties described in the schedule here under in any manner.
(b) for a permanent injunction restraining the defendants and their men from effecting any alienations in respect of the suit properties in any manner.
(c) and for costs.
(extracted as such)
b) The defendants filed the written statement.
c) Whereupon issues were framed. On the side of the plaintiff, P.Ws. 1 and 2 were examined and Exs.A1 to A11 were marked. The second defendant/Soundarajan examined himself as D.W.1 and Ex.B1was marked.
d) Ultimately the trial court dismissed the suit. As against which, appeal was filed for nothing but to be dismissed by the appellate court.
5. Being aggrieved by and dissatisfied with the same, this Second Appeal has been filed on various grounds inter alia that both the courts were wrong in holding that the plaintiff failed to take steps to get efficacious remedy, when in fact the plaintiff herein filed one other suit in O.S.No.72 of 2009 before the court concerned, wherein the defendants filed written statement invoking Order II Rule 2 of the Code of Civil Procedure on the ground that in view of the suit in O.S.No.12 of 2008, the subsequent suit O.S.No.72 of 2009, which was one for specific performance was barred.
6. On the side of the plaintiff/appellant, the following substantial question is found suggested.
Whether by filing suit for injunction on one cause of action operate as bar under Order 2 Rule 2 of CPC in filing a suit O.S.No.72 of 2009 on the file of District Judge, Vellore for enforcing relief of Specific Performance of Contract?
(extracted as such)
7. Heard the learned counsel for the plaintiff who would implore and entreat that he would be satisfied if the plaintiff/ appellant herein is permitted to proceed with the suit in O.S.No.72 of 2009, which was originally filed before the District Court, Vellore and subsequently transferred to Fast Track Court, Ranipet and numbered as O.S.No.18 of 2010. According to him, the Fast Track Court rejected the plaint in O.S.No.18 of 2010 invoking Order II Rule 2 of the Code of Civil Procedure ignoring the fact that both the courts below so far this litigation concerning O.S.No.12 of 2008, was dismissed purely on the ground that seeking efficacious remedy, the plaintiff/appellant herein should file proper suit; even though the plaintiff/appellant herein filed proper suit subsequently in O.S.No.72 of 2009 before the District Court, Vellore, which was transferred and renumbered as O.S.No.12 of 2010 by the Fast Track Court, Ranipet yet that was wrongly dismissed invoking Order II Rule 2 of the Code of Civil Procedure.
8. In view of Section 100 of the Code of the Civil Procedure, in my considered opinion, the substantial question of law, which would arise for being considered in this case is as to whether, there is any perversity or illegality in the judgements passed by both the courts below invoking Section 41 (h) of the Specific Relief Act, 1963?
9. Section 41(h) of the Specific Relief Act, 1963 is extracted here under for read
