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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Ritu Bahri, J.
Swaran Singh - Appellant
Versus
Jaspal Singh And Others - Respondent
Regular Second Appeal No. 3588 of 2019
Decided On : 19-12-2019
Specific Relief Act, 1963 - Section 10: The court analyzed the provisions of Section 10 of the Specific Relief Act, which provides for the circumstances in which specific performance of a contract may be enforced. The court applied this provision to determine whether the plaintiff was entitled to specific performance of the agreement to sell. Civil Procedure Code, 1908 - Order 2 Rule 2: The court referred to Order 2 Rule 2 of the CPC, which deals with the bar of a subsequent suit in cases where the cause of action is the same as in a previously withdrawn suit. The court held that the plaintiff's fresh suit for specific performance was barred under this provision.
Fact of the Case:
The plaintiff filed a suit for possession by way of specific performance of an agreement to sell. The suit was partly decreed for recovery of Rs.10,000. The plaintiff alleged that the defendants sold the property to a third party without informing him about the mutation of partition. The lower appellate court dismissed the suit on the grounds of being barred under Order 2 Rule 2 of the Civil Procedure Code (CPC). The plaintiff appealed against this decision.
Finding of the Court:
The court observed that the plaintiff was aware of the partition decree and the sale to the third party when filing the suit for permanent injunction. The court held that the plaintiff should have sought the setting aside of the sale deed in the suit for permanent injunction, instead of withdrawing the suit and filing a fresh one. The court referred to the judgment in Vipin Kumar vs. Smt. Asha Lata Ahuja and others and held that the suit was barred under Order 2 Rule 2 CPC.
Ratio Decidendi: The court held that the plaintiff's suit for specific performance was barred under Order 2 Rule 2 CPC as the cause of action was the same as the earlier suit for permanent injunction. The court clarified that the judgment in Rathnavathi and another vs. Kavita Ganashamdas was not applicable to the present case as the cause of action in the two suits was different.
Result: The court dismissed the appeal and upheld the decision of the lower appellate court, stating that no substantial question of law arose for consideration.
JUDGMENT
Ritu Bahri, J. - Cm No.9773-C of 2019
For the reasons mentioned in the application, same is allowed and delay of 24 days in re-filing of the appeal is condoned.
CM No.9774-C of 2019
Allowed as prayed for.
RSA No.3588 of 2019
2. This appeal has been filed against the judgment dated 15.02.2019 passed by the Additional District Judge, Hoshiarpur, dismissing an appeal filed by plaintiff-appellant (hereinafter referred to as 'the plaintiff') against the judgment and decree dated 23.11.2016 passed by the Civil Judge (Junior Division), Hoshiarpur, whereby suit filed by him (plaintiff) for possession by way of specific performance of agreement to sell, has been partly decreed to the effect of recovery of Rs.10,000/-.
3. Swaran Singh-plaintiff (appellant herein) filed the above said suit with the averments that the suit property was earlier jointly owned by defendant No.1 and his father Nirmal Singh. Vide agreement to sell dated 29.11.1995, they had agreed to sell the suit property (as detailed in the head note of the plaint) to plaintiff and received Rs.10,000/- as earnest money. It was agreed that the sale deed would be executed after mutation regarding the family partition between Nirmal Singh, Jaspal Singh and their brother was sanctioned by the revenue authority. Possession of the suit property was delivered to the plaintiff. After the death of Nirmal Singh, the suit land was inherited by defendant Nos.1 and 2. As per plaintiff, he was always ready and willing to perform his part of the agreement, but defendants never informed him about sanctioning of mutation of partition. In March, 2012, the defendants tried to forcibly dispossess the plaintiff from the suit property, whereupon he filed a suit for permanent injunction against the defendants. During the pendency of the said suit, defendant No.3 forcibly entered into possession of the said property. Thereafter, plaintiff came to know that defendant Nos.1 and 2 had already sold the suit property in favour of defendant No.3. Hence, the suit.
4. Upon notice, defendant filed written statement, wherein allegations made in the plaint were denied and prayer for dismissal of the suit was made.
5. From the pleadings of the parties, following preliminary issues were framed by the trial Court:-
1. Whether the defendants entered into agreement to sell dated 29.11.1995 with plaintiff and received Rs.10,000/- as earnest money? OPP
2. Whether the plaintiff remained ready and willing to perform his part of contract? OPP
3. Whether the plaintiff is entitled to specific performance of agreement to sell dated 29.11.1995? OPP
4. If issue No.3 is not proved, whether plaintiff is entitled to recovery of Rs.20,000/- along with interest? OPP
5. Whether the suit is not maintainable in the present form? OPD
6. Whether the suit of the plaintiff is within time? OPP
7. Whether the suit is hit by principle of resjudicata? OPD
8. Relief.
6. In order to prove execution of the agreement to sell dated 29.11.1995 Ex.P1, plaintiff had examined Baldev Singh (PW-2), who was attesting witness of the said document. He deposed that agreement to sell was executed by defendant No.1 and his father in favour of the plaintiff for a total sale consideration of Rs.20,000/-, out of which, Rs.10,000/- were paid as earnest money. Ramjit, Deed Writer (PW-4) deposed about execution of the agreement. He also proved entry with regard to the said agreement, in his register as Ex.PW4/B.
7. As per agreement to sell, no date was fixed for execution of the sale deed. It was mentioned that the sale deed would be executed after partition of the suit property between brothers/co-sharers was effected. In case defendants refused to execute the sale deed, then cause of action would arise to the vendee to get the sale deed executed through Court of Law. Document Ex.P4 is the order passed by the Lok Adalat in an earlier suit, which was dismissed as withdrawn. Ex.D4 is the copy of plaint of the said suit, a perusal of which shows that plain
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