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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Kanwarjit Singh & Anr. – Appellants
Versus
Sukhdev Singh – Respondent
CR No. 731 of 2022
Decided On : 04-01-2023
amendment - contract dispute - Order II Rule 2 CPC - [Order II Rule 2 CPC] - The court discussed the application for amendment of the plaint in a contract dispute case involving the sale of land. The defendant-petitioners argued that the amendment was barred by Order II Rule 2 CPC as the suit for specific performance should have been filed initially. The plaintiff-respondent relied on the judgment of the Hon'ble Supreme Court in Rathnavathi & Anr. vs. Kavita Ganashamdas to support the contention that a subsequent suit for specific performance would not be barred by Order II Rule 2 CPC as the causes of action were different. The court referred to the judgment and held that the suit was not barred by Order II Rule 2 CPC, and allowing the amendment would avoid multiplicity of litigation.
Fact of the Case:
The plaintiff-respondent entered into an agreement to sell land with the defendant-petitioners. The plaintiff-respondent filed a suit for permanent injunction after the defendant-petitioners did not come to execute the sale deed on the target date. An application for amendment of the plaint was filed, which was contested by the defendant-petitioners.
Finding of the Court:
The court found that the suit was not barred by Order II Rule 2 CPC, and allowing the amendment would avoid multiplicity of litigation.
Issues: The issues involved the application for amendment of the plaint and whether the suit was barred by Order II Rule 2 CPC.
Ratio Decidendi: The court relied on the judgment of the Hon'ble Supreme Court in Rathnavathi & Anr. vs. Kavita Ganashamdas to determine that the suit was not barred by Order II Rule 2 CPC as the causes of action were different.
Final Decision: The present revision petition was dismissed, and pending applications, if any, were also disposed of.
JUDGMENT
Alka Sarin, J. - The present revision has been filed challenging order dated 07.01.2022 whereby the application filed by the plaintiff-respondent for amendment of the plaint has been allowed.
2. The brief facts relevant to the present lis are that on 12.06.2020 the defendant-petitioners entered into an agreement to sell with the plaintiffrespondent for sale of land measuring 108 kanals 17 marlas situated in village Mangoli Rangran, Sub Tehsil Babain, District Kurukshetra. Various amounts were paid by the plaintiff-respondent - Rs.10 lakhs having been paid in cash, Rs.1.4 crores by RTGS in the account of Kanwarjit Singh, Rs.30 lakhs in the account of Darshan Kaur and Rs.20 lakhs by cheque on 17.05.2020. The target date in the agreement to sell was 30.04.2021. It transpires that a legal notice was served by the plaintiff-respondent calling upon the defendant-petitioners to come present to execute the sale deed on 25.11.2020. It was further the stand taken by the plaintiff-respondent that he remained present on 25.11.2020, however, the defendant-petitioners did not come present to perform their part of the contract. The suit was filed for permanent injunction on 10.12.2020 for restraining the defendant-petitioners herein from selling, mortgaging or creating any charge over the suit property. Consequently, an application for amendment of the plaint was filed on 21.09.2021. The said application was contested and vide the impugned order the application was allowed by the Trial Court. Aggrieved by the said order, the present revision petition has been preferred by the defendantpetitioners.
3. Learned counsel for the defendant-petitioners would contend that the amendment is barred by the provisions of Order II Rule 2 CPC inasmuch as intention of the defendant-petitioners was clear at the time when the legal notice was served on 21.11.2020 wherein it is stated that the defendant-petitioners were delaying the matter. It is further the contention that the suit for specific performance should have been filed at the first instance and now the same is barred by the provisions of Order II Rule 2 CPC.
4. Per contra learned counsel for the plaintiff-respondent has contended that the target date for execution of the sale deed in the present case was 30.04.2021 and the suit was filed on 10.12.2020 and hence there was no question of the suit being barred by the provisions of Order II Rule 2 CPC. In support of his contention, learned counsel for the plaintiffrespondent has relied upon the judgment of Hon'ble Supreme Court in the case of Rathnavathi & Anr. vs. Kavita Ganashamdas [2014 (4) RCR (Civil) 904] to contend that a subsequent suit for specific performance would not be barred by the provisions of Order II Rule 2 CPC as the two suits are different in causes of action.
I have heard learned counsel for the parties.
5. In the present case admittedly the target date was 30.04.2021.
6. The contention of counsel for the defendant-petitioners is that the suit was initially filed on 10.12.2020 for grant of injunction after vide the legal notice dated 21.11.2020 the target date was sought to be preponed. However, in response, the defendant-petitioners had called upon the plaintiff-respondent to withdraw the legal notice, hence, there was no concluded contract between the parties for preponing the date to 25.11.2020 and the date stood as 30.04.2021. As such, a suit for specific performance before the target date would not lie.
7. Hon'ble Supreme Court in case of Rathnavathi (supra) has held as under :
'33. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the defendants (appellants herein) are not entitled to raise a plea of bar contained in Order II Rule 2 of CPC to successfully non suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants.
34. Indeed when the cause of action to claim the respective reliefs were different so also the
AI
A subsequent suit for specific performance may not be barred by Order II Rule 2 CPC if the causes of action are different.
A plaintiff must include all claims related to a cause of action in the first suit, and failure to do so without obtaining leave from the court bars subsequent suits on the same cause of action.
The cause of action of the earlier suit for permanent injunction has to furnish the cause to institute the subsequent suit for specific performance also, to hold that the latter is barred under Order....
Different causes of action in separate suits do not invoke the bar under Order II Rule 2 of the CPC, allowing for claims of specific performance.
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....
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