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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
A.Arunachalam and ors. - Petitioners
Versus
M/s.Shri Krish Housing and Properties Pvt. Ltd. – Respondent
C.R.P.(MD) No.1708 of 2023 and C.M.P.(MD) No.8535 of 2023
Decided On : 21-12-2023
CIVIL REVISION PETITION - PERMANENT INJUNCTION AND SPECIFIC PERFORMANCE - Order II Rule 1, Order II Rule 2, Section 16(c) of the Specific Relief Act, 1963, Section 151 of the CPC - The court discussed the provisions of Order II Rule 1 and Rule 2 of the CPC, emphasizing that a plaintiff must include all claims related to a cause of action in the first suit. The court interpreted Section 16(c) of the Specific Relief Act, which bars specific performance if the plaintiff has not performed their part of the contract. The court concluded that the trial court erred in allowing a subsequent suit for specific performance without sufficient justification, as the cause of action existed at the time of the first suit. This led to the decision to set aside the trial court's order.
Fact of the Case:
The respondent filed a suit for permanent injunction against the petitioners, alleging attempts to alienate property under an unregistered sale agreement. The petitioners denied the agreement's execution and contended that the suit was barred by the Specific Relief Act and the CPC. The trial court allowed the respondent to file a subsequent suit for specific performance, prompting the petitioners to file a civil revision petition.
Finding of the Court:
The court found that the trial court failed to consider that the cause of action for specific performance existed at the time of the first suit. The court emphasized that the respondent should have included all claims in the initial suit and that the trial court's permission for a subsequent suit was erroneous.
Issues: Whether the trial court erred in allowing the respondent to file a subsequent suit for specific performance when the cause of action existed at the time of the first suit, and whether the provisions of Order II Rule 2 of the CPC were applicable.
Ratio Decidendi: The court held that under Order II Rule 2 of the CPC, a plaintiff must include all claims related to a cause of action in the first suit. If a plaintiff omits to sue for a part of the claim, they are barred from filing a subsequent suit without the court's leave. The court reiterated that the cause of action for specific performance arose at the time of the first suit, making the subsequent suit impermissible.
Final Decision: The civil revision petition was allowed, and the trial court's order dated 05.07.2023 was set aside.
ORDER :
THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
Prayer: The Civil Revision Petition is filed under Article 227 of Constitution of India to call for the records relating to the fair and decreetal order passed by Learned District Munsif Court, Keeranur in New I.A.No.1 of 2022 (Old I.A.No.500 of 2022) in O.S.No.46 of 2022 dated 05.07.2023 and set aside the same by allowing the Civil Revision Petition.
This Civil Revision petition is preferred against the order passed by the learned District Munsif Court, Keeranur dated 05.07.2023 made in I.A.No.1 of 2022 in O.S.No.46 of 2022.
2. According to the revision petitioners, the respondent has filed the above suit in O.S.No.46 of 2022 for permanent injunction stating that the petitioners/defendants are trying to alienate the suit property without adhering to the contract for sale as per the unregistered sale agreement dated 11.04.2022. It is submitted that the petitioners/defendants were served with Interlocutory Application for interim injunction and the petitioners/defendants also filed their Counter affidavit. Hence, no interim order was granted. While so, on 10.10.2022, the 3rd defendant who is the 3rd petitioner herein filed the written statement, as power holder of petitioners 1 and 2. On that day, the respondent/plaintiff represented I.A.No.500 of 2022, which was renumbered as I.A.No.1 of 2022. Thereafter, the petition filed for interim injunction was withdrawn by the respondent/plaintiff on 07.03.2023 and I.A.No.1 of 2022 was kept pending. The trial Court, without considering the above facts, allowed I.A.No.1 of 2022 permitting the respondent/plaintiff to file another suit for specific performance of contract. Aggrieved by the same, the present revision petition is preferred.
3. The learned counsel appearing for the revision petitioners would submit that the petitioners denied the execution of sale agreement and specifically contended that even assuming sale agreement was executed, the suit was hit by section 16 (c) and 41 (h) of the Specific Relief Act, 1963 and no permission was obtained under Order II Rule 2 of the Code of Civil Procedure, 1908, at the time of filing of the first suit. The respondent/plaintiff, while filing the earlier suit for injunction, ought to have pleaded proper reason and justification for filing the second suit for specific performance on the same cause of action. However, in the affidavit filed by the respondent/plaintiff, no sufficient reasons were given for filing the petition under Order II Rule 2 of CPC. Therefore, the order passed by the trial Court is unsustainable.
4. The learned counsel would further content that the Order II Rule 2 (1) of CPC provides that a plaintiff has to include the whole of the claim, which they entitled to make in respect of a cause of action. However, it is open to them to relinquish any portion of the claim. Order II Rule 2 of CPC provides for the consequences of relinquishment of part of a claim and also the consequences of omitting a part of the claim. Order II Rule 2 (1) CPC requires every suit to include the whole of the claim to which the plaintiff is entitled to in respect of any particular cause of action. The object behind the enactment of Order II Rule 2 (2) and (3) CPC is not far to seek. The rule engrafts a laudable principle that discourages/prohibits vexing the defendants again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A latter suit for such relief is contemplated only with the leave of the Court, which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The trial Court should be convinced with the reason given by the plaintiff to defend the second suit for same cause of action, while permitting the plaintiff to do so.
5. The learned counsel would also submit that the overall reading of plaint in O.S.No. 46 of 2022 narrates about the unregist
AI
The bar under Order II Rule 2 CPC does not apply when a second suit is based on a distinct cause of action arising from subsequent events, such as the lifting of a government ban on property registra....
The plea of bar under Order II Rule 2 CPC prohibits a second suit for specific performance if based on the same cause of action previously omitted, and the suit is also barred by limitation under Art....
(1) It is plaint averment that is required to be primarily considered at stage of considering application under Order VII Rule 11(d) of CPC.(2) Plea with respect to Order II Rule 2 of CPC has to be e....
The maintainability of a suit for specific performance is barred under Order 2 Rule 2 CPC if a plaintiff omits to claim it in an earlier suit concerning the same cause of action.
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