2014 Supreme(Mad) 744

High Court of Judicature at Madras
R.S. RAMANATHAN, J.
Gowri (Died) & Others
Versus
T. Lakshmiammal & Others
A.S. Nos. 312 of 1994 & 985 of 1997 & CMP Nos. 1793 & 1794 of 2008
Decided on : 28-03-2014

A suit for specific performance is barred under Order 2 Rule 2 CPC, if the right to seek the relief of specific performance was available, while filing the first suit.

Headnote:

SPECIFIC PERFORMANCE - AGREEMENT OF SALE - SUIT FOR - ORDER 2 RULE 2 CPC - BAR OF - CAUSE OF ACTION - WHETHER SUIT FOR SPECIFIC PERFORMANCE IS BARRED UNDER ORDER 2 RULE 2 CPC - HELD, YES.

Fact of the Case:

Plaintiffs filed a suit for specific performance of an agreement of sale dated 27.03.1979 and for injunction. The suit was dismissed and aggrieved by the same, the plaintiffs filed the above appeal suits. The case of the plaintiffs in both the suits is as follows:- The 1st plaintiff is the wife and the 2nd plaintiff is the husband. The suit property originally belonged to G.Thirumalaisamy Nadar and the 1st defendant is his widow and the defendants 2 to 5 are his sons. The said G.Thirumalaisamy Nadar let out the suit property and a larger extent to Beema Rao and R.Sadayappa Thevar and latter, R.Sadayappa Thevar became the sole lessee of the entire property and the 2nd plaintiff and 11 others were allowed to occupy various portions as a sub-tenant under R.Sadayappa Thevar and in the suit property, the 2nd plaintiff was running an Automobile workshop under the name and style of 'NEW SUPER AUTO CARAGE' by constructing a superstructure thereon. Latter misunderstanding arose between Thirumalaisamy Nadar and R.Sadayappa Thevar and Thirumalaisamy Nadar filed O.S. No.1644 of 1969 for recovery of possession of the suit property and a larger extent from R.Sadayappa Thevar and in that suit, R.Sadayappa Thevar filed petition under section 9 of the Tamil Nadu City Tenants Protection Act and offered to purchase the suit property, which was let out to him. During the pendency of the suit, G.Thirumalaisamy Nadar offered to sell the suit property in the possession of the 2nd plaintiff to the 1st plaintiff for a consideration of Rs.36,300/-and both of them, entered into an Agreement of Sale on 27.03.1979, by which the suit property was agreed to be sold to the first plaintiff for a consideration of Rs.36,300/- and an advance of Rs.15,000/- was paid and the same was also incorporated in the Agreement of Sale. As per the said Agreement, the first plaintiff has to pay additional sum of Rs.5,000/-within a period of one month and that was also paid and even in the Agreement of Sale, it has been specifically stated that the sale shall be completed within two months from the date on which Thirumalaisamy Nadar got recovery of possession in the suit filed by him in O.S.No.1644 of 1969 against Sadayappa Thevar. Thereafter, Thirumalaisamy Nadar died and the defendants 2 to 5 attempted to interfere with the possession and enjoyment of the plaintiffs, as the first plaintiff was put in possession of the suit property as part performance of Agreement of Sale and the defendants were also not evincing any interest in selling the suit property and attempted to interfere with the possession and enjoyment of plaintiffs. Hence, the plaintiffs filed O.S.No.248 of 1992 on the file of the District Munsif Court, Coimbatore for bare injunction and in that suit, the defendants questioned the Agreement of Sale, dated 27.03.1979 and therefore, the plaintiffs filed O.S.No.2047 of 1987 for specific performance and for injunction.

Finding of the Court:

The plaintiffs were aware that the defendants were not going to execute the sale deed as per the Agreement of Sale. The plaintiffs also admitted that in para 6 of the present suit in O.S.No.1595 of 1987 that the plaintiffs were in possession of the suit property in part performance and that was admitted by Thirumalaisamy Nadar. Therefore, when the plaintiffs were in possession of the property in part performance of Agreement of Sale and when that possession was attempted to be interfered with by the defendants and the conduct of the defendants also made it clear that they are not honouring the agreement, the cause of action for filing of the suit for specific performance and also for injunction arose and at that time, filing the suit for bare injunction without filing the suit for specific performance, would only lead to conclusion that the plaintiffs omitted to include all the reliefs, arising out of the same cause of action. In other-words, it cannot be contended that the cause of action for filing the suit for specific performance did not arise, when the possession of the plaintiffs was attempted to be interfered with and therefore, the plaintiffs were justified in not including the relief of specific performance, while filing the suit O.S.No.2047 of 1987.

Issues: 1. Whether the Agreement of Sale Ex.A1 and Ex.A2 the receipt are genuine as claimed by the plaintiffs? 2. Whether the plaintiffs were put in possession and enjoyment of the suit property, pursuant to the Agreement of Sale or the 2nd plaintiff was in possession of the suit property earlier to the Agreement of Sale? 3. Whether the plaintiffs are entitled to the discretionary relief of specific performance? 4. Whether the suit in O.S.No.1595 of 1987 was barred under Order 2 Rule 2 CPC?

Ratio Decidendi: When there is an Agreement of Sale and without filing a suit for specific performance to enforce the Agreement of Sale, if an agreement-holder filed a suit for injunction and latter on, filed a suit for specific performance, the later suit is barred under Order 2 Rule 2, as the right to seek the relief of specific performance was available, while filing the first suit and dismissed the second suit under Order 2 Rule 2 CPC.

Final Decision: The suit O.S.No.1595 of 1987 was barred under Order 2 Rule 2 CPC, there is no necessity to give any finding in respect of the other points for consideration.