2013 Supreme(Mad) 1810
High Court of Judicature at Madras
P.R. SHIVAKUMAR, J.
S. Thirugnanasambandam
Versus
P. Kaliyaperumal & Others
S.A. No. 777 of 2011
Decided on : 30-04-2013
For the Appellant:N. Suresh, Advocate.
For the Respondents:R1, S. Parthasarathy, Sr. Counsel for K.A. Ravindran, R2 & R3, V. Viswanathan, Advocates.
Headnote:Civil Procedure Code, 1908, Order 2, Rule 2 – Suit for specific performance was barred as when cause of action for filing this suit arose, plaintiff filed for injunction. Court’s leave wasnot taken and time limit in the agreement got expired.
Civil Procedure Code, 1908, Order 2, Rule 2 – Supreme Court’s footing in Virgo Industries P. Ltd. v. Venturetech Solutions P. Ltd. Was debated.
Specific Relief Act, 1963 Section 16 Evidence Act, 1872 Sections 101 to 104 Civil Procedure Code, 1908, Order 8, Rule 6A and Section 35 – Evidence shown by the plaintiff by way of documents cannot be accepted as it is unreliable. Plaintiff could not establish the fact that he was given possession of property. Hand writing expert’s have given opinion against the stand taken by the plaintiff. So, second appeal regarding agreement of sale is allowed.
Jurisprudence – Plaintiff withdrew his earlier suit and and filed a subsequent one as forensic experts told that signature of defendant and one on agreement to sale are not same. Court held that law cannot be abused and it constitutes res judicata so subsequent suit cannot be filed.
Civil Procedure Code, 1908, Order 2, Rule 2- Provision under Order 2, Rule 2 is discussed.
1. S. Thirugnanasambandam, namely the first defendant in the Original Suit, is the appellant in the Second Appeal. Kaliyaperumal, namely the plaintiff in the original suit, is the first respondent herein and the Junior Engineer, TNEB, Kurinjipadi and the Executive Engineer, TNEB, Kurinjipadi, namely the defendants 2 and 3 in the original suit, are the respondents 2 and 3 in the Second Appeal. The first respondent herein/plaintiff filed the original suit O.S.No.2/2005 on the file of Sub Court, Cuddalore for the relief of specific performance based on the suit agreement for sale dated 19.09.1992 allegedly executed by the appellant herein/first defendant in favour of the first respondent herein/plaintiff. Subsequently, the respondents 2 and 3 herein were impleaded as defendants 2 and 3 in the original suit with an additional prayer against them for a permanent injunction restraining them from disconnecting the electricity service connection bearing S.C No.1572/chavadi existing in the suit property.
2. The first respondent herein/plaintiff had filed the suit making the following plaint averments:
The appellant herein/first defendant being the owner of the suit property, agreed to sell the same to the first respondent/plaintiff for a sale consideration of Rs.2,00,000/-, received a sum of Rs.1,90,000/-as advance and part payment of sale consideration, agreed for a time of 10 years for the completion of the sale transaction and executed the suit sale agreement on 19.09.1992. On the date of agreement itself, possession of the suit property was delivered to the first respondent/plaintiff. On several occasions, the first respondent/plaintiff tendered Rs.10,000/-being the balance amount of sale consideration and demanded execution and registration of sale deed in his favour. On all those occasions, the appellant herein/first defendant, on some pretext, evaded and postponed the performance. Subsequently, when the appellant herein/first defendant made arrangements to sell the suit property to third parties in the year 2002, the first respondent herein/plaintiff issued a notice dated 12.01.2002 seeking specific performance and the same evoked a reply notice dated 09.02.2012 containing false and untenable allegations. The appellant herein/first defendant also tried to forcibly take possession from the first respondent herein/ plaintiff. Hence the first respondent herein/plaintiff filed a suit in O.S.No.372/2002 on the file of the Additional District Munsif, Cuddalore for injunction against the appellant herein/first defendant not to alienate the suit property to anyone else than the first respondent herein/plaintiff and not to dispossess him forcibly. The steps taken by the first respondent/plaintiff through the attestors of the suit sale agreement to make the appellant herein/first defendant complete the transaction proved futile, since the appellant herein/first defendant demanded a higher price. Therefore, the first respondent herein/plaintiff was constrained to file the present suit O.S.No.2 of 2005 on the file of the Sub Court, Cuddalore for specific performance. After the filing of the suit, the earlier suit, namely O.S.No.372 of 2002 on the file of the Additional District Munsif, Cuddalore was dismissed as not pressed. Thereafter, the appellant herein/first defendant instigated the respondents 2 and 3 herein/defendants 2 and 3 to disconnect the electricity connection bearing S.C.No.1572/chavadi existing in the suit property. Hence the respondents 2 and 3/defendants 2 and 3 were impleaded with an additional prayer for injunction not to disconnect the said electricity service connection.
3. Respondents 2 and 3/defendants 2 and 3 in the original suit expressed their inclination to act according to the directions of the court. The appellant herein/first defendant alone resisted the suit by filing a written statement and additional written statement praying for the dismissal of the suit. In addition, he also made a counter cla