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2008(2) JLJ 1
(SUPREME COURT)
S.B. Sinha and Harjit Singh Bedi, JJ.
Vimlesh Kumari Kulshrestha v. Sambhajirao and another
Civil Appeal No. 2976 of 2004 : against the judgment of M.P High Court, Jabalpur, Bench at Gwalior, passed in First Appeal No.159 of 1999; Decided on 5.2.2008.
Plaintiff, in a suit for specific performance of contract, is the appellant herein. She was a tenant in a portion of the premises in respect whereof the agreement of sale dated 1.4.1986 is said to have been entered into by and between the parties hereto. [Para 1
A suit for specific performance was filed on 9.9.1986 which was marked as OS No.228A/1986. Proper court-fees were not paid thereupon. Having regard to an objection taken in that behalf by the first respondent herein in his written statement, allegedly another suit was filed by her on 23.3.1987, which was marked as OS No.13A of 1987. as No.228A of 1986, on the premise that another suit has been filed, was sought to be withdrawn. The application for withdrawal was allowed.
Respondent No.1, however, had entered into another agreement of sale with the respondent No.2. He filed an application for impleading himself as a party in the suit. It was allowed.
The learned trial Judge decreed the suit. By reason of the impugned judgment, however, the High Court has reversed the same, holding:
(i) in view of Order XXIII rule 1 of the Code of Civil Procedure, the permission for filing another suit on the same cause of action having not been obtained, the second suit was not maintainable;
and
(ii) the agreement of sale dated 1.4.1986 being vague, no decree for specific performance could be granted. [Paras 3 to 5
Held: The second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the appellant in regard to payment of proper court-fee. We, therefore, are of opinion that Order 23 rule 1 of the Code was not applicable to the facts and circumstances of the present case. AIR 1930 Lahore 599, AIR 1992 Kar. 85 and AIR 1985 Punj. and Har. 219 approved. Judgment of High Court reversed. [Para 10
(2) Civil P.C., 1908 -- O.23 R.3(b) -- permission to withdraw suit or part thereof -- need not be express -- it may be implied. AIR 2000 Ori. 125 approved. Mulla‘s CPC 17th Edn. 674 relied on. [Paras 16 & 17
(3) Specific Relief Act, 1963 -- Ss.20 and 22 -- Transfer of Property Act, 1882 -- S.53A -- suit for specific performance of sale -- no map attached with agreement to sell -- property to be sold not even proved from oral evidence -- suit liable to be dismissed.
An agreement of sale must be construed having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant. Appellant was only a tenant in respect of a part of the premises. It may be that the boundaries of the house have been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject-matter of sale definite, the plan was to be attached. The plan was not even prepared. It has not been found that the sketch of map annexed to the plaint conformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain could not be given effect to. (1932) All ER 494 and 1897(2) Ch.281 discussed. [Paras 26 & 27
¼1½ flfoy çfØ;k lafgrk] 1908& &vk- 23 fu-1& &çFke okn yafcr jgus ds nkSjku f}rh; okn Qkby fd;k x;k& &mica/k ykxw ugha gksxkA lafonk ds fofufnZ"V ikyu ds okn esa oknh] ,rfLeu vihykFkhZ gSA og ifjlj ds ,d Hkkx esa vfHk/kkjh Fkh ftlds laca/k esa foØ; dk djkj fnukad 1-4-1986 dks bu i{kdkjksa ds e/; fd;k x;k dfFkr gSA ¼iSjk 16½ 9-9-1986 dks fofufnZ"V ikyu ds fy, okn Qkby fd;k x;k Fkk tks fd ewy okn Øekad 228&,@1986 dh Hkk¡fr fpfgur FkkA ml ij leqfpr U;k;ky; Qhl lanÙk ugha dh xbZ FkhA ,rfLeu çFke çR;FkhZ }kjk mlds fyf[kr dFku esa fd, x, vk{ksi ds laca/k esa] vfHkdfFkr :i ls 23-3-1987 dks mlds }kjk ,d vU; okn Qkby fd;k x;k] tks fd ewy okn Øekad 13&, lu~ 1987 dh Hkk¡fr fpfg~ur FkkA bl vk/kkj ij fd vU; okn Qkby fd;k x;k gS] ewy okn Ø- 228&, lu~ 1986 çR;kgr djus dh bZIlk dh xbZ FkhA çR;kgj.k dk vkosnu eatwj fd;k x;k FkkA rFkkfi çR;FkhZ Ø- 1 us çR;FkhZ Ø- 2 ds lkFk ,d vU; foØ; dk djkj dj fy;k FkkA mlus Lo;a dks okn esa i{kdkj cuk, tkus ds fy, vkosnu Qkby fd;kA og eatwj fd;k x;kA fo}ku fopkj.k U;k;ky; us okn fMØh fd;kA rFkkfi] vk{ksfir fu.kZ; ds dkj.k mPp U;k;ky; us ;g vfHkfu/kkZfjr djrs gq,] og myV fn;k gS% ¼1½ flfoy çfØ;k lafgrk ds vkns‘k 23 ds fu;e 1 dks n`f"V esa j[krs gq, mlh okngsrqd ij ,d vU; okn Qkby djus dh vuqKk çkIr ugha djus ds dkj.k] f}rh; okn pykus ;ksX; ugha Fkk( rFkk ¼2½ foØ; djkj fnukad 1-4-1986 vLi"V gksus ds dkj.k] fofufnZ"V ikyu dh fMØh ugha nh tk ldrh FkhA ¼iSjk 3 ls 5½ vfHkfu/kkZfjr % çFke okn ds çR;kgj.k dk vkosnu Qkby djus ds iwoZ f}rh; okn Qkby fd;k x;k FkkA çFke okn blfy, çR;kgr fd;k x;k Fkk D;ksafd vihykFkhZ }kjk leqfpr U;k;ky; Qhl ds laca/k esa vk{ksi fd;k x;k FkkA vr% gekjh jk; gS fd lafgrk ds vkns‘k 23 dk fu;e 1 bl ekeys ds rF;ksa rFkk ifjfLFkfr;ksa ij ykxw ugha FkkA , vkb vkj 1930 ykgkSj 599] , vkb vkj 1992 dukZVd 85 rFkk , vkb vkj 1985 iatkc vkSj gfj;k.kk 219 vuqeksfnrA mPp U;k;ky; dk fu.kZ; myVk x;kA ¼iSjk 10½ ¼2½ flfoy çfØ;k lafgrk] 1908& &vk-23 fu-3[k& &okn vFkok mlds Hkkx ds çR;kgj.k dh vuqKk& &vfHkOfDr gksuk vko‘;d ugha gS& &og foof{kr gks ldrh gSA , vkb vkj 2000 mM+hlk 125 vuqeksfnrA eqYyk Ñr flfoy çfØ;k lafgrk l=goha laLdj.k 674 voyafcrA ¼iSjk 16 ,oa 17½ ¼3½ fofufnZ"V vuqrks"k vf/kfu;e] 1963& &/kkjk 20 rFkk 22& &laifÙk varj.k vf/kfu;e] 1882& &/kkjk 53d& &foØ; ds fofufnZ"V ikyu ds fy, okn& &foØ; ds djkj ds lkFk dksbZ uD‘kk layXu ugha& &foØ; dh tkus okyh laifÙk ekSf[kd lk{; }kjk Hkh lkfcr ugha& &okn [kkfjt fd, tkus ;ksX; gSA foØ; ds djkj dk vFkkZUo;u mlls lac) ifjfLFkfr;ksa dks /;ku esa j[krs gq, fd;k tkuk pkfg,A i{kdkjksa ds e/; laca/k Hkw&Lokeh rFkk vfHk/kkjh dk FkkA vihykFkhZ ifjlj ds ek= ,d gh Hkkx ds laca/k esa vfHk/kkjh FkhA gks ldrk gS fd edku dh lhek,¡ of.kZr dh xbZ gS fdarq uD‘kk mldk Hkkx gksuk pkfg, FkkA ,rfLeuiwoZ geus minf‘kZr fd;k gS fd i{kdkjksa dk djkj ds lkFk uD‘kk mikc) djus dk vk‘k; ek= blfy, Fkk D;ksafd laifÙk dk o.kZu vi;kZIr FkkA foØ; dh fo"k;&oLrq ds o.kZu dks fuf‘pr djus dh n`f"V ls] uD‘kk layXu fd;k tkuk FkkA uD‘kk rS;kj ugha fd;k x;k FkkA ;g ugha ik;k x;k Fkk fd okn esa mikc) uD‘ks dk js[kkfp= ml uD‘ks ds vuq:i Fkk tks foØ; ds djkj dk Hkkx cuk;k tkuk FkkA vr% foØ; dk djkj] vfuf‘pr gksus ds dkj.k çHkkoh ugha fd;k tk ldrk FkkA ¼1932½ vky bZ vkj 494 rFkk 1897 ¼2½ v/;k; 281 foosfprA ¼iSjk 26 ,oa 27½
Sinha, J. -- 1. Plaintiff in a suit for specific performance of contract, is the appellant herein. She was a tenant in a portion of the premises in respect whereof the agreement of sale dated 1.4.1986 is said to have been entered into by and between the parties hereto.
2. The relevant clauses of the said agreement read as under:
"It was settled down in between the above parties that house of party No.1, in which party No.2 is living, party No.1 will sell for Rs.48,000/- (Rupees Forty eight thousand only) and as a part payment received Rs.24,000/- (Rupees Twenty four thousand only) by cheque by party No.2 from party No.1 on 20.3.1986.
(2) Party No.1 will obtain permission for sale of the house from Ceiling Officer and will give information to party No.2 and within three months of the information the party No.2 will get executed the registry and will make the payment of balance amount.
(3) That party No.1 assured to party No.2 that regarding the rights of ownership and transfer of the house there is no dispute and if need arises then party No.1 till get permission from the Court and party No.2 will have the right that on the error of party No.1 will get registry executed through Court and the expenses will have to be borne by party No.1.
Therefore, this agreement wrote down and received Rs.24,000/-(Rupees Twenty four thousand only). The map of residential house prepared and will remain with this document. The boundaries are wrote down under:
North : House Sambhajirao Angre
West : Property of Sambhajirao Angre
East : Road
South : House Hariram Kapoor"
3. A suit for specific performance was filed on 9.9.1986 which was marked as OS No.228A/1986. Proper court-fees were not paid thereupon. Having regard to an objection taken in that behalf by the first respondent herein in his written statement, allegedly another suit was filed by her on 23.3.1987, which was marked as OS No.13A of 1987. OS No.228A of 1986, on the premise that another suit has been filed, was sought to be withdrawn. The application for withdrawal was allowed.
4. Respondent No.1, however, had entered into another agreement of sale with the respondent No.2. He filed an application for impleading himself as a party in the suit. It was allowed.
5. The learned trial Judge decreed the suit. By reason of the impugned judgment, however, the High Court has reversed the same, holding:
(i) in view of Order XXIII rule 1 of the Code of Civil Procedure, the permission for filing another suit on the same cause of action having not been obtained, the second suit was not maintainable; and
(ii) the agreement of sale dated 1.4.1986 being vague, no decree for specific performance could be granted.
6. Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellant in support of the appeal raised the following contentions:
(a) The High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the second suit having been instituted during the pendency of the first suit. Order XVIII rule 1 of the Code of Civil Procedure was not applicable.
(b) The agreement was required to be read in its entirety and so read, it would be evident that the subject-matter of sale was the entire house and not a part thereof.
7. Mr. S.S. Khanduja, learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment.
8. It is not in dispute that OS No.13-A of 1987 was filed during pendency of OS No.228-A of 1986.
9. Order XXIII rule 1 of the CPC stricto sensu therefore, was not applicable, the relevant provision whereof reads thus:
"1. Withdrawal of suit or abandonment of part of claim. -- (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim;
(2) ......
(3) Where the Court is satisfied, -
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute
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