In the High Court of Judicature at Madras Dated 25.07.2011 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.1950 of 2010 and M.P.No.1 of 2010 Sathiyamurthy ..Appellant/Plaintiff ..vs.. 1. R.Pavunambal 2. V.Shanmugam ..Respondents/Defendants Civil Miscellaneous Appeal filed under Order 43 Rule 1(a) of C.P.C., against the fair and decretal order dated 08.02.2010 in I.A.No.313 of 2009 in O.S.No.138 of 2008, on the file of Principal District Judge, Cuddalore. For Appellant : Mr.Sai Krishnan for M/s.Sai, Bharath & Ilan For Respondents: Mr.N.Suresh for R1 and R2 JUDGMENT This appeal arises out of the fair and decretal order dated 08.02.2010 in I.A.No.313 of 2009 in O.S.No.138 of 2008 on the file of Principal District Court, Cuddalore, whereby the trial court has allowed the application taken by the respondents herein for rejection of the plaint filed by the appellant. The appellant is the plaintiff and the respondents are the defendants before the trial court. 2. Before going into the question, whether the order passed by the court below in rejecting the plaint is correct or not, it would be fit and proper to narrate the circumstances, which led the plaintiff to file the instant suit for specific performance, as follows: (a) Defendants are the mother-in-law and son-in-law. The defendants have entered into an agreement of sale on 20.08.2007 with the plaintiff in respect of the suit properties, agreeing to sell the same for a sale consideration of Rs.12,500/- per cent and on the date of agreement, the plaintiff has paid a sum of Rs.6 lakhs as advance and it was agreed that the balance amount has to be https://hcservices.ecourts.gov.in/hcservices/ paid within a period of three months from the date of agreement of sale. The defendants have also handed over possession of the suit properties to the plaintiff to enable him to form a lay-out and other incidental works relating to lay-out. There was also a dispute between the defendants and one Govindaraj with regard to the suit properties and when the plaintiff came to know about the same, a panchayat was convened and in the panchayat, it was agreed that the defendants should refund the payment of Rs.4 lakhs to the plaintiff and consideration for the property to be increased by Rs.1,000/- per cent and the defendants should resolve the dispute between themselves and Govindaraj as early as possible. The terms were endorsed on 18.11.2007 in the agreement of sale itself; but on 18.02.2008, contrary to the terms of the agreement, the defendants attempted to plough the land. Hence, the plaintiff with great difficulty, prevented the attempt made by the defendants. Thereafter, the plaintiff has filed a suit in O.S.No.82 of 2008 for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit properties. Subsequently, the present suit in O.S.No.138 of 2008 has been filed for specific performance, based on the agreement of sale dated 20.08.2007, as against the defendants. (b) In the suit filed in O.S.No.138 of 2008, the defendants filed an application in I.A.No.313 of 2009 contending that the relief now asked for is very much available at the time of earlier suit filed by the plaintiff in O.S.No.82 of 2008. Hence, the suit is barred under Order II Rule 2 C.P.C. as the plaintiff did not seek any leave of court in the earlier suit for filing a present suit. (c) The said application was opposed by the plaintiff contending that the earlier suit was filed for bare injunction restraining the defendants not to interfere with his peaceful possession and enjoyment over the suit properties. The injunction application filed in the said suit was dismissed on the ground that the question could be decided at the time of trial. Though the cause of action in both the suits relates to the same document, the cause of actin for both the suits is different. The cause of action for the earlier suit in O.S.No.82 of 2008 is based on the attempt made by the defendants to dispossess the plaintiff from the suit properties; but the cause of action for the present suit is based on the denial of agreement of sale dated 20.08.2007 by the defendants. Therefore, the cause of action for both the suits is different and hence, the application filed by the plaintiff under Order 7 Rule II C.P.C. is not maintainable. (d) After hearing both sides, the trial court allowed https://hcservices.ecourts.gov.in/hcservices/ the application filed by the defendants. Challenging the same, the present appeal has been filed. 3. Learned counsel for the appellant/plaintiff submitted that originally an agreement of sale was entered into between the appellant and the respondents on 20.08.2007. Subsequently when the appellant came to know that there was a dispute in respect of the the properties between the respondents and one Govindaraj, a panchayat was convened and in which, it was agreed that the respondents/defendants should refund a sum of Rs.4 lakhs and the consideration of the property to be increased by Rs.1,000/- per cent and that the respondents should finalise the dispute between themselves and the said Govindaraj and that the time for agreement was extended for a further period of six months. But, in the meantime, on 18.02.2008, the respondents attempted to enter into the suit properties, which resulted in filing the suit in O.S.No.82 of 2008 for injunction as against the defendants. Only in the written statement in that suit, the defendants had stated that the suit agreement stands rescinded by virtue of the appellant's conduct. Thereafter, on seeing the said defence, the appellant had issued a legal notice dated 03.06.2008, for which the respondents had issued a reply dated 09.06.2008. Thereafter, the suit was filed for specific performance. The cause of action for the earlier suit is based on the attempt made by the respondents to dispossess the appellant from the suit properties. But the cause of action for filing the subsequent suit is based on the endorsement made in the sale agreement on 18.11.2007, by which endorsement, it was agreed between the parties to increase the sale consideration by Rs.1,000/- per cent. Therefore, the subsequent suit is based on the terms entered into between the parties on 18.11.2007 and not based on the original sale agreement dated 20.08.2007. Since the cause of action for both the suits is different, the application filed by the respondents under Order 7 Rule II C.P.C.is not maintainable, In support of his contention, the learned counsel has relied on the judgments reported in KUNJAN NAIR SIVARAMAN NAIR .vs. NARAYANAN NAIR AND OTHERS ((2004) 3 SCC 277), PERIYAR NAGAR CHRISTIAN ASSOCIATION .vs. PERIYAR NAGAR CSI CHURCH ((2007) 1 MLJ 266) and POPAT AND KOTECHA PROPERTY .vs. STATE BANK OF INDIA STAFF ASSOCIATION (2006-1-L.W.748). 4. Per contra, the learned counsel for the respondents/ defendants submitted that in the subsequent suit, the prayer sought by the appellant was only based on the agreement dated 20.08.2007. The cause of action for filing the suit for specific performance was very much available even on the date when the plaintiff has filed the earlier suit as against the defendants. Under such circumstances, without obtaining leave as required under Order 2 Rule II CPC., the plaintiff cannot file a fresh suit. Both the suits are not based on the same cause of action and, therefore, the suit for specific performance is maintainable and no infirmity https://hcservices.ecourts.gov.in/hcservices/ could be found in the order passed by the court below. The learned counsel has also relied on the decisions reported in RAPTAKOS BRETT AND COMPANY PVT.LTD., .vs. MODI BUSINESS CENTRE (P) LTD., ((2006) 2 MLJ 411), BHAGAWATH DEVI .vs. ASWIN C.JAIN ((2009) 3 MLJ 4), SORNAM .vs. A.VENUGOPAL (2010(5) CTC 563) and BAFNA DEVELOPERS .vs. D.K.NATAJARAN ((2010) 6 MLJ 113). 5. Heard the learned counsel for the parties. 6. It is the submission of the learned counsel for the appellant/plaintiff that the cause of action for the suits filed in O.S.No.82 of 2008 and O.S.138 of 2008 is totally different. According to the plaintiff, the earlier suit was filed to prevent the defendants from entering into the suit properties. But, subsequent to the sale agreement, an endorsement was made on 18.11.2007 in the sale agreement and based on the said endorsement, the appellant filed the suit for specific performance and the cause of action for filing the suit for specific performance was not available at the time of filing the earlier suit. Only when the defendants took a defence in the earlier written statement that the agreement was rescinded, the plaintiff came to know that the defendants are denying the execution of the agreement and thereafter, the suit for specific performance was filed. But this contention of the appellant cannot be accepted. It was, according to the appellant, on the date of agreement, i.e. on 20.08.2007, he was put in possession of the suit properties by the respondents. It is pertinent to note that it is the allegation of the appellant in O.S.No.82 of 2008 that on 18.02.2008, the defendants respondents made an attempt to interfere with the appellant's possession of the suit properties by ploughing the land. Therefore, it could be inferred from the conduct of the respondents that even on 18.02.2008 itself, the respondents had denied the sale agreement. Therefore, the cause of action for filing the suit for specific performance was available even on 18.02.2008. But the appellant has filed the suit only for bare injunction. Though the appellant had stated that his subsequent suit is based on endorsement made on 18.11.2007, the relief sought for by the appellant in O.S.No.138 of 2008 was only based on the agreement dated 20.08.2007. Therefore, it is very clear that the cause of action for filing both suits is only based on the agreement dated 20.08.2007. Under such circumstances the appellant ought to have obtained leave under Order 2 Rule 2 C.P.C.to file a fresh suit. Order II Rule 2 C.P.C. reads thus: "Order II: FRAME OF SUIT: 1. ..... 2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. https://hcservices.ecourts.gov.in/hcservices/ (2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted". 7. No doubt, the learned counsel for the appellant relied upon the judgment reported in 2004) 3 SCC 277 (supra) in support of his contention that only if the defendants are able to show that the second suit is based on the identical cause of action, it would attract the requirements under Order II Rule 3 C.P.C. But, in my considered opinion, the dictum laid down in the said judgment cannot be made applicable to the facts of the case, because the defendants have established that the cause of action for filing both the suits is based on the agreement dated 20.08.2007. On the contrary, in the instant case, the appellant has miserably failed to show that the cause of action in both suits is not identical. The learned counsel has also relied on the decision reported in 2006-1-L.W.748 in support of the proposition that the disputed questions cannot be decided at the time of considering an application filed under Order 7, Rule 11 CPC. The relevant paragraph from the said decision reads as follows: "10. Clause (d) of Order VII Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC. Clause (d) of Rule 11 of Order VII applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force". In my considered opinion, the proposition laid down in those judgments cannot be made applicable to the facts of the present case. In the present appeal, it could be seen that the cause of action for filing both the suits arose based on the agreement dated 20.08.2007 and the cause of action for filing the suit for specific performance was available even on the date of filing the earlier suit. Under such circumstances, the appellant ought to have obtained leave under Order II Rule 2 CPC. In this regard, an useful reference could be placed from the decisions relied on by the learned counsel for the respondents. 8. In (2006) 2 MLJ 411 ( supra), this Court has held as follows: "The real test should be whether the cause of action https://hcservices.ecourts.gov.in/hcservices/ now urged for the present suit, were available at the time of the filing of the first suit or not. In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non-mentioning of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of O.2 Rule 2 of C.P.C. That apart, the relief what has been now asked for, would have been asked that time itself, but omitted to be done. Allowing the contention for the plaintiff that the defendant should be allowed to file the written statement raising such a defence plea; that issues have to be framed; that the parties must be allowed to let in evidence on that issues, and that the Court should decide on the same would be against the provisions under O.2, Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to undergo the ordeal of trial. Apart from that, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his convenience, would also be against the public policy". 9. This Court in (2009) 3 MLJ 4 (supra), has held as follows: "When the cause of action for filing the suit for specific performance suit arose even at the time of filing the earlier suit, and no appeal was preferred against earlier Order and no leave was obtained for filing a fresh suit. In such circumstance, having failed to claim larger relief at the time of filing earlier suit and having failed to obtain leave for filing a fresh suit for the omitted claim before filing the latter suit, provisions of Order 2 Rule 2 Code of Civil Procedure, 1908 get attracted". 10. In (2010) 6 MLJ 113 (supra), a Division Bench of this Court has held as follows: "The test should be whether the cause of action on which the present suit for specific performance was filed, was available to the plaintiff. In Court's considered view, the cause of action is identical and the present suit for specific performance is barred under Order 2 Rule 2 C.P.C. Upon analysis of evidence and materials on record, the trial Court rightly held that the suit for specific performance is not maintainable and is clearly barred by limitation. The finding of the trial Court on Issue No.2 is also reversed and it is held that the suit is barred under Order 2 Rule 2 C.P.C.". 11. In 2010(5) CTC 563 (supra), this Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "47. In the above decision, this Court has clearly held that the Rule requires whether the causes of action now urged for the present Suit were available at the time of filing of the first Suit or not. Having held so, this Court found that the causes of action for filing a Suit for Specific Performance were very well available at the time of filing the first Suit and not mentioning of certain facts on the cause of action which was very well available could not be a reason to come out within the clutches of Order 2, Rule 2, C.P.C.". 12. The real test for entertaining Order 7 Rule 11 C.P.C. is that whether the cause of action for filing the present suit was available even on the date when the earlier suit was filed. In the instant case, the evidence on record would show that the respondents/defendants are denying the agreement by their conduct even when the appellant/plaintiff has filed the earlier suit for injunction against the defendants from interfering with the peaceful possession and enjoyment of the suit properties. Under such circumstances, the appellant/plaintiff ought to have obtained leave under Order 2 Rule 2 CPC to file a suit for specific performance; but he has not done so. Therefore, under Order 2 Rule 11(d) C.P.C., the subsequent suit filed by the appellant is barred by principle of res judicata. Under such circumstances, in my considered opinion, there is no infirmity in the order passed by the court below and there is no valid ground to interfere with the impugned order. For the reasons stated above, the civil miscellaneous appeal fails and the same is dismissed. No costs. Consequently, connected M.P.is closed. gl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Principal District Judge, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to M/s. Sai Bharath & Ilan, Advocate SR No.44870 + 1 cc to Mr. N. Suresh, Advocate SR No.44977 NG(CO) SR/27.7.2011 Judgment in C.M.A.No.1950 of 2010 https://hcservices.ecourts.gov.in/hcservices/