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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kuldip Singh
RSA No.1543 of 2007 (O&M)
Rameshwar Dass Gupta
v.
Shri Kailash Chander Sharma
{Decided on 27/08/2015}
Bar to Suit--Pleadings--To attract the bar under Order 2, Rule 2 CPC the pleadings of first suit should have been brought on record.
(A) Specific Relief Act, 1963, S.16--Agreement to Sell--Specific Performance--Readiness and Willingness--Plaintiff(Purchaser) and defendant No.1 (Seller) were present in office of Sub-Registrar on date of execution of sale deed--Defendant No.1 (Seller) did not executed the date deed in favour plaintiff (Purchaser) on the ground that few days earlier his children have filed injunction suit restraining him to alienating the suit but no stay was granted—However, during pendency of said suit, seller executed sale deed in favour of defendant No.2 (subsequent purchaser) and said injunction suit was withdrawn prior to such execution--Plaintiff had also filed injunction suit restraining seller from executing sale deed--All circumstances show that purchaser was ready and willing to perform his part and seller was not--Decree of specific performance passed in favour of plaintiff, directing seller and subsequent purchaser to execute sale deed in favour of plaintiff and also hand over possession.
(B) Civil Procedure Code, 1908, O.2 R.2--Bar to Suit--If the plaintiff files a suit relinquishing or omitting part of the claim, he could not afterward sue in respect of the portion so omitted. (Para 12)
(C) Specific Relief Act, 1963, S.16 & S.37--Bar to Suit--Injunction--Agreement to Sell--Specific Performance--Plaintiff (purchaser) before due date of execution of sale deed had filed suit for injunction restraining defendant (seller) from alienating property in favour of any other person--Thereafter, plaintiff after due date filed suit for specific performance--Second suit not barred by O.2 R.2 CPC--Civil Procedure Code, 1908, O.2 R.2. (Para 21)
(D) Civil Procedure Code, 1908, O.2 R.2 & O.6 R.1--Bar to Suit--Pleadings--To attract the bar under Order 2, Rule 2 CPC the pleadings of first suit should have been brought on record--In the absence of pleadings, no interference can be drawn about such bar. (Para 16)
Mr. Kuldip Singh J.: (Oral) -- Impugned in the present regular second appeal is the judgment dated 12.01.2007 passed by learned Addl. District Judge, Fast Track Court, Ambala affirming the judgment and decree dated 31.01.2004 passed by learned Addl. Civil Judge (Sr. Divn.), Ambala Cantt., whereby the suit of the plaintiff was dismissed on the ground that it is barred under Order II, Rule 2 CPC and the plaintiff has no locus standi to file the suit.
2. Briefly stated, the plaintiff-appellant had filed a suit for specific performance of the agreement dated 16.01.1995 executed by defendant No.1 with the plaintiff regarding house No.751/10, Sikliqar Mohalla, Ambala Sadar, Ambala Cantt. It was stated that defendant No.1 representing himself to be the exclusive owner of the disputed house agreed to sell the same to the plaintiff-appellant vide agreement to sell dated 16.01.995 for Rs.1,52,000/-. The sale deed was to be executed on or before 15.04.1995 before the Sub Registrar, Ambala. Rs.20,000/- were paid as earnest money and balance amount was to be paid before the sub Registrar at the time of registration of the sale deed. The possession was to be delivered at the time of execution of the sale deed. The plaintiff was always ready and willing to perform his part of the contract. However, defendant No.1 turned dishonest and got filed a false suit against himself by his daughter Mamta and others for permanent injunction restraining him and others from alienating the property in question to the plaintiff. On the said pretext, defendant No.1 refused to execute the sale deed, although, no objection certificate was obtained from Municipal committee, Ambala Sadar, Ambala Cantt. The office of the sub Registrar was closed due to holidays from 11.04.1995 to 16.04.1995. Therefore, on 17.04.1995, the plaintiff got his presence marked before the Sub Registrar. Though, defendant No.1 was present there but avoided the execution of sale deed on the pretext of suit filed by Ms. Mamta and others against him. He assured that the sale deed would be got executed later on. Both the defendants now in connivance with each other fully knowing about the agreement to sell dated 16.01.1995, made a deal regarding the house in question. Defendant No.2 purchased the house in question vide sale dated 09.06.1995 for Rs.1,48,000/-. The actual sale consideration is much higher. Therefore, the sale deed executed by defendant No.1 in favour of defendant No.2 on 09.06.1995 is illegal and not binding on rights of the plaintiff. Defendant No.2 is not a bonafide purchaser. The defendants are bound by said agreement.
3. In the written statement, defendant No.1 took the legal objections that the suit is barred under Order II, Rule 2 CPC. Defendant No.1 stated that he had every right to entered into the agreement dated 16.01.1995. The sale deed was to be executed on or before 15.04.1995 but the plaintiff failed to perform his part of the contract. The plaintiff was never ready and willing to perform his part of the contract. The receipt of Rs.20,000/- as earnest money was also admitted. It was submitted that Ms. Mamta and others filed a civil suit against defendant No.1. No stay was granted in the said suit and defendant No.1 was hotly contesting the said suit. The plaintiff filed a suit for permanent injunction on 05.09.1995 though at that time remedy of the specific performance was available to him. Therefore, the present suit is barred under order II, Rule 2 CPC. It was pleaded that the plaintiff had failed to perform his part of the contract. Defendant No.1 sold his house in question to defendant no.2 at lower price. Defendant No.2 in the written statement took the plea that he is bonafide a purchaser for valuable consideration.
From the pleadings, following issues were framed:
“Whether plaintiff is entitled to possession of the suit property by way of specific performance of the agreement dated 16.1.1995? OPP
2. Whether plaintiff has no locus standi to file the
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