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2014 Supreme(Mad) 2358
High Court of Judicature at Madras
SATISH K. AGNIHOTRI & M.M. SUNDRESH, JJ.
Himayam Engineers & Builders
Versus
S. Ravichandran & Others
Original Side Appeal No.141 of 2012 & M.P.No.1 of 2014
Decided On : 08-08-2014
For the Appellant:R. Thiagarajan, Advocate.
For the Respondents:R1 to R3, A.P.S. Kasthuri Rangan for M/s. Sampathkumar & Associates, Advocates.
The main legal point established in the judgment is the importance of giving the plaintiff an opportunity to demonstrate that the cause of action in the subsequent suit is different, as mandated by Order II Rule 2 CPC.
Headnote:
Order II Rule 2 CPC - Civil Procedure - 1, 2, 3, 4, 5, 6 - The judgment discusses the framing of issues, determination of suit, and the applicability of Order II Rule 2 CPC. The court found that the additional issue was framed without hearing the parties, and the suit was remitted for fresh consideration.
Fact of the Case:
The appellant filed a suit seeking specific performance of a development agreement and damages for breach of the agreement. The suit was dismissed on the ground that the appellant had filed a previous suit on the same cause of action, and the additional issue on the bar of the suit was framed without hearing the parties.
Finding of the Court:
The court found that the additional issue was framed without hearing the parties, and the suit was remitted for fresh consideration.
Issues: The main issue was whether the suit was barred by Order II Rule 2 CPC. Other issues included entitlement to specific performance, damages, land acquisition proceedings, and cause of action.
Ratio Decidendi: The court held that the additional issue was framed without hearing the parties, and the suit was remitted for fresh consideration. The court also emphasized the importance of giving the plaintiff an opportunity to demonstrate that the cause of action in the subsequent suit is different.
Final Decision: The judgment and decree of the learned single Judge were set aside, and the suit was remitted for fresh consideration. The learned single Judge was requested to hear the parties and decide the additional issue framed on Order II Rule 2 CPC and then decide the other issues in the suit.
1. Brief facts:-
1.1. The appellant herein was plaintiff in the suit. Defendants/Respondents 1 and 2 are the owners and the 3rd respondent/3rd defendant is the power agent. A development agreement was entered into by the plaintiff on 10.9.2003 with the third defendant, who is the power of attorney agent of defendants 1 and 2 at Chennai under Ex.P.9 to develop four plots of land in S.No.415, Mogappair village, Saidapet Taluk, Chengalpet District. Alleging that the respondents are threatening to dispossess the appellant/plaintiff, a suit was filed by him in O.S.No.30 of 2005 on the file of District Munsif's Court, Ambattur seeking declaration that the agreement dated 10.9.2003 by the defendants is illegal and invalid land for a permanent injunction restraining the defendants from preventing the plaintiff with the construction or development of the plaint schedule property. Thereafter, a comprehensive suit was filed in C.S.No.460 of 2005 before this Court claiming the following relief:
''The plaintiff therefore prays for a judgment and decree against the defendants:
(a) granting specific performance of the ''development agreement' dated 10.9.2003 entered into between the plaintiff and defendants 1 and 2 represented by their Power of Attorney Agent 3rd defendant;
(b) for permanent injunction restraining the defendants from in any manner preventing or interfering with the plaintiff from proceeding with construction in the suit schedule property in accordance with the approved plan hereafter to be obtained from the C.M.D.A and
(c) to direct defendants 1 and 2 to pay plaintiff jointly and severally a sum of Rs.71,00,000/-(seventy one lakhs towards damages for breach of suit agreement and Rs.20,00,000/-(twenty lakhs) being the return of advance amount in all a total sum of Rs.91,00,000/-
(d) for costs of the suit
(e) and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
or in the alternative,
1.2. Learned single Judge framed thefollowing issues.
"1. Whether the plaintiff is entitled to get a decree for specific performance of contract on the basis of development agreement dated 10.09.2003 and to get a consequential order of permanent injunction as prayed for?
2. Whether the plaintiff is entitled to the alternative relief of Rs.71,00,000/- towards damages for breach of suit agreement and Rs.20,00,000/- being the return of advance amount?
3. Whether the suit land subjected to any land acquisition proceedings of the Tamil Nadu Housing Board?
4. Whether the plaintiff has failed to perform his part of the contract?
5. Whether Clause 18 of the development agreement dated 10.09.2003 will be applicable?
6. Whether the plaintiff is entitled to claim any damages in spite of his inordinate delay in executing the contract?
7. Whether the plaintiff has any cause of action to file the suit?
8. To what relief, the plaintiff is entitled?"
1.3. Witnesses have been examined and documents have been marked on the site of both parties. Thereafter, arguments have been heard. After reserving judgment, the learned single judge framed an additional issue, which is hereunder:
"1.Whether the suit is liable to be dismissed, in view of the earlier suit filed by the plaintiff, on the same cause of action, in view of Order II Rule 2 C.P.C.?"
1.4. Thereafter, the learned single Judge proceeded to deal with the matter by dismissing the suit on merit. Coming to the additional issue No.1, which was dealt along with Issue No.7, the following finding has been given.
"58. The plaintiff had the cause of action to file the suit. But for the same cause of action, he preferred a suit in O.S.No.30 of 2005 before the District Munsif Court, Ambattur. It is not in dispute. Exs.D3 and D4 are the plaint in O.S.No.30 of 2005 and affidavit and petition in I.A.No.144 of 2005 in O.S.No.30 of 2005 respectively filed before the District Munsif Court, Ambattur. Having filed a suit for the same cause o
