R.S.A.No. 238 of 1996 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 238 of 1996 (O&M) Date of decision: 8.10. 2009 Vishwa Nath and another ......Appellants Versus Subhash Chander and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel, Advocate and Mr.Sanjeev Gupta Advocate, for the appellants. Mr.Pritam Saini, Advocate, for the respondents. **** SABINA, J. Plaintiffs- respondents No.1 to 6 filed a suit for specific performance of the contract vide agreement to sell dated 2.9.1982, which was decreed by the Senior Sub Judge, Kurukshetra vide judgment and decree dated 10.12.1994. In appeal, the said judgment and decree were upheld by the Additional District Judge, Kurukshetra vide judgment and decree dated 30.9.1995. Hence, the R.S.A.No. 238 of 1996 (O&M) 2 present appeal by defendants No.1 and 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts leading to this appeal are; that the plaintiffs out of whom five are admittedly minors entered into an agreement for purchase of 43K-8M of land detailed in heading of the plaint with Vishav Nath, defendant no.1 on 2.9.1992 and a greed to purchase the land for a sum of Rs. 2,00,000/-.Out of this amount an amount of Rs. 67,000/- was paid as earnest money. The sale was to be effected up to 10.6.1983, being holiday the plaintiff moved the office of Sub Registrar on 9.6.1983 and got his presence marked. On 10.6.1983 again he remained in the office of Sub Registrar only for getting his presence marked. Thereafter, on 15.7.1983 registered notice was sent to defend ant no. 1 calling upon him to execute a sale deed up to 30.7.1983. Defend ant no.1 did not perform his part of contract and instead of repeated request by the plaintiffs. In the last, in the month of February, 1984 the plaintiff finally requested the defendants to get the sale deed executed, otherwise they would knock the door of the court. At this defendant no.1 allegedly assured the plaintiffs and agreed that he will get the sale deed executed and registered or he would pay R.S.A.No. 238 of 1996 (O&M) 3 the amount double of the earnest money on or before 4.7.1985. but in the month of March, 1985 the plaintiffs came to know that defendant no.1 has transferred the land under the agreement to his wife defendant no.2 by way of collusive civil court decree. In March, 1985 again the plaintiffs served notice upon defendant no.1. Apprehending further alienation, the plaintiffs filed suit for permanent injunction. The decree passed on 15.6.1983 in favour of defendant no.2 being collusive has also been challenged being null and void. Defendant No.3 allegedly entered into contract to purchase the land. 3. The defendants no.1 and 2 filed written statement taking various preliminary objections regarding maintainability, mis-joinder of parties and estoppel. On merit each plea of the plaintiffs was controverted. There was total denial of receiving earnest money as well as receiving any notice. The decree was alleged to be passed validly. 4. Defendant No.3 also took various preliminary objections and further pleaded that the suit ought to have been for declaration regarding sale in favour of defendant no.3. He further pleaded that he is bonafide purchaser for a valuable consideration without notice.” On the pleadings of the parties, following issues were R.S.A.No. 238 of 1996 (O&M) 4 framed by the trial Court:- 1. Whether the defendant no.1 agreed to sell the land measuring 42 kanals 8 marlas vide agreement dated 2.9.1982 as alleged? OPP. 2. Whether the plaintiffs have been ready and willing to perform their part of the agreement and they are still ready and willing to do so? OPD. 3. Whether the judgment and decree dated 15.6.1983 are illegal and void? OPP. 4. Whether the plaintiffs are entitled to claim a sum of Rs. 2,00,000/- as alleged? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the suit is lad for mis-joinder of parties? OPD. 7. Whether the plaintiffs have lost their right by their own act and conduct? OPD. 8. Whether the suit is not maintainable against R.S.A.No. 238 of 1996 (O&M) 5 defendant no.3? OPD. 9. Whether the plaintiffs have no locus-standi to file and maintain the present suit against defendant no.3? OPD. 10. Whether the defendant no.3 is a bonafide purchaser for valuation consideration. If so, its effect? OPD. 11. Whether the suit is bad for non-joinder of necessary parties? OPD. 12. Whether Vishav Nath wan not owner of the disputed property. If so its effect? OPD. 13. Relief. Learned counsel for the appellants has submitted that the suit of the plaintiffs was liable to be dismissed as it was barred under Order 2 Rule 2 of the Code of Civil Procedure (“CPC” for short). The plaintiffs were minor and hence, could not enter into a contract with the defendants. The plaintiffs had failed to establish that they were ready and willing to perform their part of the contract. In support of his arguments, learned counsel for the appellants has placed reliance on Veena Goyal and another vs. Raj Kumar Mittal 2008(3) Civil Court Cases 200 (P&H) wherein it was held that subsequent suit for specific performance was barred under Order 2 Rule 2 CPC where earlier a suit for injunction was filed although cause of action had accrued to the plaintiff to file a suit for R.S.A.No. 238 of 1996 (O&M) 6 specific performance. Learned counsel for the appellants has also placed reliance on Smt. Ralli and others vs. Smt. Satinderjit Kaur 1998 (2) PLJ 305 wherein also a similar view was taken. Learned counsel for the respondents, on the other hand, has submitted that in the first appeal filed by the appellants, no challenge was made to the execution of the agreement to sell and whether the plaintiffs were ready and willing to perform their part of the contract. In the first appeal the only challenge was to the effect that the plaintiffs including Subhash Chander were minor and the agreement was not enforceable. Since the defendants were threatening to alienate the suit property, the plaintiffs had initially filed a suit for permanent injunction. The defendants had been assuring the plaintiffs that they would execute the sale deed in their favour. The suit for specific performance was filed after the defendants refused to execute the sale deed in favour of the plaintiffs. Moreover, the plaint filed in the previous suit had not been proved on record to establish that the cause of action in both the suits was the same. Learned counsel has placed reliance on Smt. Bhagwan Kaur v. Shri Harinder Pal Singh 1992 (1) RRR 59, wherein a Division Bench of this Court in para Nos. 7 and 8 held as under:- 7. The learned counsel also contended that the suit is barred under Order II rule 2 (2) of the Code. This R.S.A.No. 238 of 1996 (O&M) 7 contention has also to be rejected on the ground that such a plea was never raised. However, since the plea was argued at some length on the basis of certain authorities by the learned counsel, we propose to discuss its merits as well. The contention is that in the earlier suit filed by the plaintiff seeking injunction against the appellant, the relief of specific performance should also have been claimed, since the same was available to him. We are not inclined to accept this contention also. Order II rule 2(2) of the Code reads as under:- “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. (2) Relinquishment 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.---- Explaination.....”. R.S.A.No. 238 of 1996 (O&M) 8 It may be seen from its plan terms that what this rule provides is that the plaintiff may be precluded from claiming that portion of the claim which he intentionally omits to sue or which he intentionally relinquishes. It may be mentioned that the plaint in the earlier suit had not been filed. However, from a narration of facts in the judgment of the learned Single Judge, it appears that the cause of action in the earlier suit was the alienation made or threatened to be made by the defendant- appellant. May be that while narrating the facts, the plaintiff also made a mention of the agreement to sell but then it is evident that the cause of action was not founded upon that agreement. The alienations made by the defendants necessitated the filing of the suit and formed the cause of action. The cause of action mentioned in Order II rule 2(2) of the Code obviously means the cause of action for which the suit was brought. In order that the cause of action in both the suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same, but also that the infingement of his right at R.S.A.No. 238 of 1996 (O&M) 9 the hands of the defendant must have arisen in substance, out of the same transaction as held by the Privy Council in Mohammad Khan v. Mahbub Ali Mian, AIR 1949 Privy Council 78, a rough test although not a conclusive one, as to whether the cause of action in subsequent suit is the same as that in the former suit, is to see whether the same evidence will sustain both suits. Regard has to be had to the allegations in both the suits. It need not be emphasised that in a suit for specific performance, it is necessary for the plaintiff to aver and prove his readiness and willingness to perform his part of the contract which was apparently not necessary to be pleaded in the earlier suit filed by the plaintiff claiming injunction. We may usefully refer to a Division Bench decision of the Lahore High Court in Lachha Mal Sardari Mal v. Hirde Nath , AIR 1925 Lahore 459. There also, the plaintiff who had an agreement of sale in his favour filed a suit for injunction against the defendants. That suit was held as not maintainable and Order II rule 2 (2) of the Code was ruled as no bar to the maintainability of the subsequent suit for specific R.S.A.No. 238 of 1996 (O&M) 10 performance. This Division Bench precisely answers the issue against the appellant and in favour of the respondent. 8. In support of his contention, the learned counsel for the appellant, cited a decision of the Privy Council in Baba Kumar Hazara v. Radhashyam Mahish, AIR 1931 Privy Council 229. In the said case, the claim in the earlier suit was founded upon the mortgage and the decree was for the conveyance of the property, but there was no order for accounts. That claim was not pressed there. The second suit was on the allegations that after the execution purchase of the properties, the defendants received certain rents and profits which they had not accounted for and for which the claim was made. Such a suit was held as not maintainable as barred by Order II rule 2 of the Code. It was observed that the cause of action in the subsequent suit was the same as in the previous suit. The right to rent and profits vested on the same foundation of facts and law as the right to have the purchases of the decree and of the property declared to be purchases for the mortgagors. This decision, R.S.A.No. 238 of 1996 (O&M) 11 therefore, hardly helps the case of the appellant. We have indicated above that in the present case, the foundation for the claim of specific performance is not the same as was in the earlier suit restraining the alienation. This decision is, therefore, clearly not applicable to the present case. Instead, we notice that the Supreme Court in Gurbax Singh v. Bhooralal, AIR 1964 Supreme Court 1819 clearly laid down that a plea of bar of a suit under Order II rule 2 of the Code, if brought, should be satisfactorily established by the defendant and cannot be presumed on the basis of any inferential reasoning. The pleadings in the earlier suit have to be filed in the subsequent suit. Admittedly, in the present case, the pleadings in the earlier suit, were not filed and that omission is sufficient to disentitle the defendant-appellant to raise such a plea. The defence so raised, therefore, has rightly been negatived. Learned counsel has further placed reliance on the decision of this Court in Gurjit Singh vs. Bant Singh Vol.CXIII (1996-2) PLR 149, wherein it was held that the suit for specific performance was not barred by provisions of Order 2 Rule 2 CPC R.S.A.No. 238 of 1996 (O&M) 12 where the suit for injunction restraining the defendant from alienating the land had been withdrawn after instituting suit for specific performance. Learned counsel has also placed reliance on Jagat Singh vs. Jeet Singh and another 2007 (3)RCR (Civil) 519, wherein it was held as under:- “5. However, I do not find any merit in the aforesaid argument raised by the learned counsel for the appellant. A Division Bench of this Court in Smt.Bhagwan Kaur vs. Shri Harinder Pal Singh, 1992 (1) RRR 59 : (1992-2) 101 PLR 643, has held that the cause of action in the suit for injunction is different than the one in a suit for specific performance. It was held that the provisions of Order 2 Rule 2 CPC do not bar the subsequent suit for specific performance. 6. Apart from the said fact, the suit for specific performance was filed when the suit for injunction was already pending before the trial Court. Admittedly, the earlier suit for injunction was filed in the absence of knowledge in respect of the sale effected by the vendor in favour of the present appellant. After ex parte ad interim injunction was granted on 4.6.1994, the plaintiff filed the present for specific performance having derived information regarding sale in favour of the R.S.A.No. 238 of 1996 (O&M) 13 present appellant. Therefore, it cannot be said that the cause of action to seek specific performance was available to the plaintiff with the suit for injunction was filed on 4.6.1994.” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Suit of the plaintiffs for specific performance was decreed by the trial Court. However, in appeal as is evident from para 9 of the judgment of the learned Additional District Judge, the appellants had not challenged the findings of the trial Court with regard to execution of the agreement and willingness of the plaintiffs to perform their part of the contract. In these circumstances, the appellants cannot assail the findings of the learned trial Court to this effect in this appeal. There is no force in the arguments raised by learned counsel for the appellants that the plaintiffs including Subhash Chander were minor and hence, agreement was not enforceable. The plaintiffs had produced school leaving certificate of Subhash Chand as per which the date of birth of plaintiff Subhash Chander is 15.5.1962. Merely because the plaintiff had given his age as 21-22 years when he appeared in the witness box in the year 1987 does not lead to the inference that the plaintiff was a minor at the time of execution of the agreement to sell because the said fact is duly rebutted by the school leaving certificate place on record by the R.S.A.No. 238 of 1996 (O&M) 14 plaintiffs. Even if all the plaintiffs were minor, since agreement to sell was for the benefit of the minor, the same cannot be said to be not enforceable. So far as the argument raised by learned counsel for the appellants to the effect that the suit was barred under Order II rule 2 CPC is concerned, the same is without any force. Initially no objection was taken in this regard that the suit filed by the plaintiffs was barred under Order II rule 2 CPC nor this argument was raised before the Courts below. It is only during the pendency of this appeal that the appellants amended their written statement and took the plea that the suit was barred under Order II rule 2 CPC. The plaint in the suit filed for permanent injunction is on record as Mark X. The said suit was admittedly filed on 28.3.1985. A perusal of the plaint reveals that in para 4, it has been averred that the date for execution and registration of the sale deed is fixed as 4.7.1985 but the plaintiff had come to know that defendant No.1 has transferred the land in question in the name of defendant No.2 by way of false and fictitious document. Admittedly, during the pendency of the suit for permanent injunction, suit for specific performance was filed on 24.7.1985 and suit for permanent injunction was got dismissed as withdrawn on the same day. Thus, it is evident from the pleadings in the suit for permanent injunction that at the time of filing of the suit for permanent injunction, the cause of action to the plaintiffs was not available for filing the suit for specific performance because the R.S.A.No. 238 of 1996 (O&M) 15 pleadings in the suit for permanent injunction reveal that the date for execution of the sale deed had not yet arrived. In these circumstances, in the present case, the suit filed by the plaintiffs for specific performance was not barred under Order II rule 2 CPC. The judgments relied upon by learned counsel for the appellants fail to advance the case of the appellants as these are based on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 08, 2009 anita