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THE HIGH COURT OF JUDICATURE AT MADRAS
R.Subramanian, R.Sakthivel, JJ.
E.Sathish Kumar (Died) and ors. - Appellant
Versus
S.Murugesan and ors. – Respondents
A.S.No.357 of 2017 and C.M.P.No.13535 of 2017
Decided On : 03-7-2024
CPC - Specific Performance - Order II Rule 2 - The court interpreted Order II Rule 2 of the CPC, emphasizing that different causes of action in separate suits do not bar subsequent claims for specific performance, leading to the reversal of the lower court's decision.
Fact of the Case:
The plaintiff sought specific performance of a sale agreement, but the defendant claimed the suit was barred under Order II Rule 2 of the CPC due to previous suits filed by the plaintiff. The trial court rejected the plaint based on this argument.
Finding of the Court:
The court found that the causes of action in the previous suits were distinct from the current suit for specific performance, thus the bar under Order II Rule 2 of the CPC did not apply. The trial court's ruling was deemed incorrect.
Issues: Whether the suit for specific performance was barred under Order II Rule 2 of the CPC due to earlier suits filed by the plaintiff.
Ratio Decidendi: The court held that different causes of action in separate suits do not invoke the bar under Order II Rule 2 of the CPC, allowing the plaintiff's suit for specific performance to proceed.
Result: The appeal is allowed, and the trial court's order is set aside, restoring the suit for specific performance.
JUDGMENT :
R.SUBRAMANIAN, J.
Prayer : Appeal Suit filed under Section Section 96 of the Code of Civil Procedure read with Order XLI Rule 1 of the Code of Civil Procedure, praying to set aside the order and decretal order dated 21.12.2015 made in I.A.No.1636 of 2009 in O.S.No.946 of 2004 passed by the Principal District Judge, Coimbatore.
(Prayer amended vide order of this Court dated 14.03.2023 made in C.M.P.No.3968 of 2023 in A.S.No.357 of 2017 by SVNJ & RKMJ
This appeal is as against the order of the learned Principal District Judge, Coimbatore dated 21.12.2015 made in I.A.No.1636 of 2009 in O.S. No.946 of 2004 rejecting the plaint on the ground that the suit is barred under Order II Rule 2 of the Civil Procedure Code (for short, the CPC).
2. The suit is for specific performance of the agreement of sale dated 02.6.2000, in and by which, the first defendant had agreed to sell the suit property for a consideration of Rs.1,50,00,000/- and received an advance amount of Rs.1,00,000/-.
3. The essential terms of the said agreement are as follows:
(ii) The defendant should pay the debts due to the seven 3rd party creditors totalling to a sum of Rs. 45,13,302/- along with interest.
(iii) The defendant should also clear all the debts that were not mentioned in the agreement incurred prior to 02.6.2000 and the debts incurred by the plaintiff after 02.6.2000 would not bind the defendant; and
(iv) The total period for performance of all these acts was fixed as 96 days. Within 96 days, if the all the debts were cleared and if the first defendant failed to execute the sale deed, the plaintiff would be entitled to be put in possession to the suit property. On the contrary, if the plaintiff failed to clear the debts within the said 96 days, the agreement would stand cancelled automatically, which included forfeiture of the advance amount paid.
4. The plaintiff instituted the suit on 28.01.2001 praying a decree for specific performance. Subsequently, the plaint was amended on 14.12.2009 to incorporate the relief of refund of advance. As per the amendment made in I.A.No.1668 of 2009 dated 14.12.2009, the relief of refund of advance amount was incorporated on 14.12.2009.
5. The first defendant filed the written statement on 19.3.2003. The main contention made in the written statement was that the present suit was barred under Order II Rule 2 of the CPC, the plaintiff already filed two other suits namely (i) O.S.No.85 of 2001 on the file of the Subordinate Court, Coimbatore seeking a decree for mandatory injunction directing the Tamil Nadu Electricity Board to restore the service connection to the suit property and (ii) O.S.No.277 of 2001 on the file of the Second Additional District Munsif Court, Coimbatore seeking a decree for permanent injunction restraining the first defendant from interfering with the plaintiff from running the textile mill smoothly.
6. During the pendency of the present suit, the plaintiff died and his legal heirs were brought on record. It is relevant to note that defendants 2 and 3/respondents 2 and 3 are none other than the wife and the son of the original plaintiff – Mr.E.Sathishkumar.
7. According to the first defendant, the plaintiff had the cause of action for filing the present suit for specific performance even on the date of filing the first suit namely O.S.No.85 of 2001, which was instituted in January 2001 and therefore, the suit for specific performance filed later is hit by the provisions of Order II Rule 2 of the CPC. An application under Order II Rule 2 of the Code of Civil Procedure 1908 was also filed by the defendant seeking rejecti
A plaintiff must include all claims arising from the same cause of action in one suit; failure to do so bars subsequent suits under Order II Rule 2 of the CPC.
Subsequent suits based on the same cause of action are barred under Order II Rule 2 of the CPC, thus limiting the relief for specific performance in favor of return of advance.
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