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2020 Supreme(Mad) 1153
IN THE HIGH COURT OF MADRAS
V. BHARATHIDASAN, J.
Pugazhendhi – Appellant
Versus
Subramanian – Respondent
C.R.P. Nos. 1359, 1360 of 2018 and C.M.P. No. 7167 of 2018
Decided On : 12-05-2020
Advocate Appeared:
For the Appellant : A.L. Ganthimathi
Headnote:
Civil Procedure Code, 1973 – Order II and 39 – Rule 1 and 2 – Transfer of Property Act – Section 53 – Limitation Act – Article 54, 85, 86 and 87 – Power of Attorney – Permanent Injunction – Suit – Suit has been filed on ground that, the defendant is owner of suit schedule property and that he entered into an unregistered sale agreement with plaintiff agreed to sell suit schedule property for a total sale consideration and same has to be paid before date of agreement of paid by plaintiff to defendant as advance and on very same day itself possession of suit schedule property was handed over to plaintiff by defendant – Held, Court to terminate civil action at threshold is drastic conditions enumerated exercise of power of rejection of plaint have to be strictly adhered to averments of plaint have to be read as a whole to find out whether averments disclose a cause of action or whether suit is barred by any law – It is needless to observe that question as to whether suit is barred by any law would always depend upon facts and circumstances of each case averments in written statement as well as contentions of defendant are wholly immaterial while considering prayer of defendant for rejection of plaint –Averments in written statement as well as contentions of the defendant are wholly immaterial while considering prayer of defendant for rejection of the plaint – Even when allegations made in plaint are taken to be correct as a whole on their face value if they show that suit is barred by any law or do not disclose cause of action application for rejection of plaint can be entertained and power under exercised clever drafting of plaint has created illusion of a cause of action court will nip it in bud at earliest so that bogus litigation will end at earlier stage – Appeal accordingly dismissed.
ORDER :
V. Bharathidasan, J.
1. Civil Revision Petition No. 1359 of 2018, has been filed against the order allowing the application filed by the respondent/plaintiff, under Order II Rule 2(3) of C.P.C. seeking leave to file a separate suit for specific performance subsequently.
2. For the sake of convenience, the parties are referred to as they are referred in the plaint.
3. The respondent/plaintiff filed the suit for permanent injunction restraining the petitioner/defendant from disturbing his possession in respect of the suit schedule property. The suit has been filed on the ground that, the defendant is the owner of the suit schedule property, and that he entered into an unregistered sale agreement with the plaintiff on 21.11.2012, agreed to sell the suit schedule property for a total sale consideration of Rs. 6,70,00,000/-, and the same has to be paid before 21.03.2013. On the date of agreement, a sum of Rs. 50,00,000/- was paid by the plaintiff to the defendant as advance and on the very same day itself the possession of the suit schedule property was handed over to the plaintiff by the defendant. That apart, the defendant also executed a Power of Attorney on 23.11.2012, to one Mr. Arunachalam being the nominee of the plaintiff for due execution of the sale deed and for completion of other formalities.
4. According to the plaintiff, after taking over possession of the suit schedule property, from the defendant he converted the same into residential plots, and entered into sale agreements with various people, and he has also received payments. Since the defendant has gone to a foreign country for his personal work, the plaintiff has been in constant touch with he defendant's Power Agent. That being so, the defendant without giving any notice to the plaintiff or to his Power Agent cancelled the Power of Attorney on 07.04.2013. The plaintiff, apart from paying a sum of Rs. 2,97,60,000/- towards sale consideration has also incurred a sum of Rs. 70,00,000/- towards development of the land into house sites.
5. According to the plaintiff, the defendant on 13.08.2014, with the help of rowdy elements threatened the plaintiff to vacate the land and handover possession to him. The plaintiff immediately gone to the police station and filed a complaint and the case is still pending. The defendant after receiving major portion of the sale consideration has started disturbing the possession of the plaintiff and taken steps to sell the house plots developed by the plaintiff to third parties. In the above circumstances, the plaintiff filed the present suit for permanent injunction.
6. Along with the suit, the plaintiff has filed an application under Order II Rule 2(3) C.P.C. seeking leave to file a separate suit for specific performance of the sale agreement dated 21.11.2012. The said application has been filed on the ground that the plaintiff after entering into the sale agreement, out of the total sale consideration of Rs. 6,70,00,000/-, paid a sum of Rs. 2,97,60,000/-, and has also issued a notice for specific performance of the contract, plaintiff has been arranging for funds for paying the remaining sale consideration and registration charges and it will take some time, as there is an immediate threat to the plaintiff's possession as the defendant disturbing the possession of the plaintiff and creating third party interest over and above the sale agreement, at this stage, the plaintiff cannot file a specific performance suit, and therefore he filed the present suit for permanent injunction.
7. The present suit is not to elude filing the suit for specific performance, but a stop gap arrangement to protect his right and interest in the sale agreement as well as over the suit property, therefore, he sought for leave to file a separate suit for specific performance. That application was allowed by the Court below and now challenging the same the petitioner/defendant has filed C.R.P. No. 1359 of 2018.
8. Civil Revision Petition No. 1360 of 2018 ha
