;^%^^^^ sS^S'&sSSS^S ^ ^tii.iCMffl^iniBffiiliiaiiffiiMiiilBiaiiN :fl?E.^'^',g^SiJiiiSiffiE^allN^ ARIKEl.l-«NT: lSanat?KHrnarSonkar m VerSus I^ESPONDiENTS: fttfloti Lal $dhkaranci anottier yUDGMeNtFQRGQNSlKERftT-ICtN 'lL—, Sd7- JVQiGE fiSS^W I'i; ;;•;;;• •l;-^:' M':' :-.); Hon'lil&Mi'.Justice^R.t..Jha@war Sd/- R.L. Jhaiiwar Judge '^•iKs ::^. -t'^, ^Posi^^RronolliiSein'iiiS^^ Sd/- T.P.Sharma Judge VK 's •i1'-'.'.^''.' '•...•it:'-.: .w.li-M.' ^"W!:S*tS^!S . ./C.T"^ S Ai-^Mfr 1 l,.'iSii»*g"'^. 1 ^ ' . • ^ • '^\ •^),.' • •':^.^^c".^ '••^^^!?c^-~ HIGH COURTOP CHHATTISGARH. BILASPUR DIVISIONBENCH o ^~ CORAM: HON'BLE MR. T.P.SHARMAAND HON'BLE MR.R.L. JHANWAR, JJ. APPELLANT/: (Plaihtiff) PROFORMAAPPELLANT (Plaintiff's counsel in the Gourtbelow) FirstADDeal No.169 of 2006 Sanat Kumar Sonkar, aged about 38 years, son of Shri Jaggu Sonkar, resident of village and Post Bhathagaon, Tahsil and District Raipur Rajendra Kumar Agrawal, Advocate, aged about56 years, Son of lateShri S.S. Agrawal, Resident of Aminpara, Raipur (C.G.) [He is only aggrieved by the adverse remarks made against him by the coyrt below in psiragraph 12 ofitsjudgement]. Versus 1. Moti Lal Sonkar, aged about 68 years, son of late Shri Shivratan Sonkar. 2. Dharam Sonkar, aged about 32 years, Son of Shri Moti Lal Sonkar. Both are resident of village and Post Bhathagaon, Tahsil and District RaipuF (Firstappeal underSection 96, readwith Section 151 ofthe Code ofCivil Procedure, 1908) RESPONDENTS/: (Defendants) Present: • Mr. Krishna Murari Agrawalwith Mr. Pankaj Agrawal, counsel forthe appellants. Mr. S.C, Verma.counselfortherespondents. JUDGMENT n9~ (Detivered on 2"° August, 201 0) T.P. Sharma. J, 1. Challenge in this appeal under Section 96 of the Code df Civil Procedure, 1908 (forshort 'the Code') is to the judgment & decree dated 24-7-2006 passed by the 3rd Addjtional District Judge, Raipur in Civil Suit N0.43A/2Q05 dismissing the suit for specific performance of contract and permaneht injunction. c^^giiK^s&.t %^e^. '^Af .'•*^ ^ 2. Judgment & decree are impugned on the ground that by misapplication of the provisions of Order 2 Rule 2 (2) of the Code, the Court below has committed illegality. 3. As perthe claim of the plaintiff/appellant, the re$pondents owners of Khasra No.1485/4 area 1.748 hectares situate at Bhathagaon, Raipur, had entered into an agreement to sell the aforesajd property to the appellant on 24-3-2002 and executeda "bayana chitti". After receiving advance of Rs.60,500/- out of Rs.5,37,000/- on 24-3-2002, ttie respondents handedover the possessionof land to the appellant. The respondents have also received Rs.30,410/-; Rs.50,000/- and Rs.1,86,00p/- total Rs.2,66,410/-. Finally the respondents have received Rs.3,46,910/- from the appellant towards payment of sale amount, but they tried to dispossess the plainfiff/appellant from the suit land on which the appellant filed suit for declaration and permanent injunction against the respondents in which both the parties filedcompromise application under Order 23 Rule 3 of the Code in which the respondents have agreed thesale transaction and delivery of possession. The appellant was ready and willing to pay remaining amountof Rs.1,85,090/- tothe' respondents to perform his part. Theappellant has alsospent money for development of thesuit land. On the basis of Gompromise, previous suit bearing C.S.No.3-A/2004was decided in favour oftheplaintiffbythe8th Additibnal District Judge, Raipur, vide judgment & decree dated 26-8- 2004. The appellant made request for execution of sale deed, but the respondents were not readyto perform their part of contract. Finallysuit for specific performance and permanent injunction was filed against the respondents. 4. The respondents haveadmitted ownership over the land, but have, denied the transaction and execution of bayana chitti. The respondents have never handed over the possession of land to the appellant. Parties haye not filed compromise application before the Court.. The respondents have challenged the judgment & decree passed ih C.S. N0.3-A/2004 before the High Courtand the appeal is pending. The appellantwas under obligation to include all claims, for which he was entitled, in C.S.No.3-A/2004, but he has intentionally omitted to claim specific performance of contract and thereby he has relinquished his claim fpr specifiG performanGe of contract, During the subsistence of decree for permanent injunetion as alleged by the appellant, the ^;-^ ,:.13 '', ;:';1 ::,.;•,• ^' appellant is again notentitled for the relief of permanent injunction, Vide registered partition deed dated 13-4-2004, defendant No.1 has made partition of the property and partition topk place between both the, respondents namely respondentNo.1 and daughter of respondentNo.1 Dharmin. The suit is not maintainable in terms of Order2 Rule2 of the Code. . 5. On the basis of averments of the parties.issues were framed and after affording opportunity of hearing to the parties, learned Additional District Judge has dismissed the suit vide the judgment & decree impugned. 6. Wehave heard learned counsel forthe parties, perused the judgment & decree impugned and record of the Court below. 7. Mr. Krishna Murari Agrawal, learned counsel appeanng on behalfofthe appellants, vehemently argued that for invoking the provisions of Order 2 Rule 2 (2) of the Code.the party who elaims such defence is required to file copies of pleadings &issues of previous suit, but in the present case, the respondents have not filed any such pleadings & issuesof previous suit. Theappellanthas not concealed the materiai facts of previoussuit and has pleaded in his plainfthat previous suit was filed fordeclaration and permanent injunction relating to same property, at that time suit for specific performance was notnecessary and no cause of action forfiling of suit for specific performance arose at the time of filing of previous suit., PreVious suit and present suit are based on same document bayana chitti and parties are same but causes of action are different. The plaintiffhas notomitted or iritentionally relinquished the claim for.filing of suit for specific performance of contract in the previous suit and therefore, the plaintiff is not precluded from filing present suit for specific perfQrnnance of contract on the basis of-bayana chitti. In the present suit, the respoadents havenot made specific denial of the allegafions madein the plaint, especially relating to nature of pleadings in previous suit, filing of compromise application and jydgment & decree on the basis of compromise application, and absence ofspecific denial ofthe afpresaid' allegations, amounts to admission in.accordance with Order 8 RuleSof the Code. Mr. Krishna Murari Agrawal further argued that theappellant has adduced suffieient evidence to prove issueNos.1 to 7. Witnesses of the respondents have alsosubstantially admitted fhe claim of the plaintiff. 1 8. Mr. Krishna Murari Agrawal; learhec) cpuhsel appearing on beKalf of the appellants,placedreliahceinthematterofGurbuxSinghv.Bh6oralaP^ iri which the Apex Court tias held that in order that a plea 6f a^bar under Order2Rule2 (3) of the Code shtiuld succeed thedefendantwho raises the plea must make out (1) that the second sujt was in respect of th6 same cayse of actioh as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entifled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the seGond suit had been filed. Mr. Krishna Murari Agrawal further placed reliance in the matter of S. NazeerAhmed v, State Bankof lUlysore and Ors. in which the Apex Court has heldthat burden to prove barof Qrder 2 Rute 2 of the Code ison the defendant. Produetion of plaint in earlier suit to show the cause of action of that suit is mandatory. Mr. Krishna Murari Agrawal also placed reliance in the matter ofM/s. Bengal WaterproofLimitedv. hfl/s. BombayWaterproof Manufacturing Company and another^ in which the Apex Court has held that in absenee of pleadings in first suit, no jnference about bar under Order 2 Rule 2 of the Codecan be drawn. Second suit on the basis of continuOus cause of action is not bar under Order2 Rule2 (3) of the Code. Mr. Krishna Murari Agrawal relied upon th'e matter of Harinarayan v. Narmadashankar in which the High Court of Madhya Pradesh has held that party ready and willing to perform obligation on hjs part in suit forspecific performance ofsale is entitled for decree. Mr. Krishna Myrari Agrawal further relied upon the matter of Chhabrani (Smt.) V. Smt. Narbada Bai in which the High Cburt of Madhya Pradesh has held that party js required to plead and prove readinessancl' ' willingness to perform his part. Mr.Krishna MurariAgrawal also reljed upon the matter of Ratansingh v. Nagu in which the High Court of Madhya Pradesh has held that factum of readiness and willingnessof plaintiff to perform his partcan be interfered from the eircumstanees and avermentsof platnt. Mr. Krishna Murari Agrawal placed reliance in the matter of V.E.A. Anhamalai Chettiar and another v. S.V.V.S. 1AIR 1964 SC 1810 2AIR2007SC989 3AIR1997SC1398 41995(II)MPWN108 51990(II)MPWN49 61988-fMPWN110 5 . ' ' , 4>r Veerappa Chettiar and others in which the Apex Court has held that dOGumentonce admitted in evidence cann6t be calledin question atany, stage of the proceedings onthe ground that it has not been duly stamped. 9. Mr. S.C. Verma, learned counsel for the respondents, vehemently opposed the appeal and sybmitted that first civil suit No,3-A/2004 was filed bythe appellant hereinfor declarationand permanent injunction and for npt interfering in the possession of the suit land, against the respondents on the basis of bayana chitti. In the previous suit,the appellant herein has not claimed the relief of specific performanee of contract and has not included the claim of specific performance of contract which the appellant was entitled to claim jn the firstcivil suit. The appellant herein/plaintiffhas deliberatelyand intentionally omitted to sue and has relinquished thedaim of specific performance ofGontract, therefore, the plaintiff/appellant herein is not entitled and is precluded from filing and claiming suit for specific performance ofeontract against the respondents in accordanGewith Order2 Rule 2 of the Code. Mr. S.C. VeFma further submitted that definitely the respondents herein have pleaded the aforesaid pleading relating to non-maintainability of subsequent suit under Order 2 Rule 2 of the Code and, therefore, they were required to prove the aforesaid allegafion by filing copyof pleadings' and issues. However, in the present case, the plaintiff/appellant herein hjmself has admitted the factum of previous suit in his pleadings. Therefore, on the basis of admission of the plaintiff,which is the best evidence under the Indian Evidenee Act, nothing was requiredto proye the institution of previous suit between the parties relating to same property and the Court belowhas rightty dismissed the present suit filed on behalf of the plaintiff. Learned Additional District Judge has dismissed the suit substantially in termsof0rder2 Rule 2 ofthe Code. 10.As per pleadings, judgment & decree, 'it is not disputed that the, respondents have executed agreementto sale ofland bearing Khasra No. 1485/4area 1.748 hectares in favourofthe appellant herein on 24-3- 2002 in thestyle of bayana chitti. As per para 7 of the pla.int, the appellant herein ha,d filed Civil Suit No.3-A/2004 for declaration and permanent injunction which was finally decreed vide judgment & decree dated 26-8-2004. Thereafter, the plaintiff has filed present suit for 7AIR1956SC12 ,^'K' :''~t''l:i,f^ ,}:•., '^-'S^ ^.^.^SS^ "•'% "•&n..."' '...-s rf-^'\.":SSS3l^ \',., .;;^.,. ,..;.'^;.:.^. specific performance of contract on the basis of alleged bayana chitti dated 24-3-2002. As held by the Apex Court in the matter of S.Nazeer Ahmed (supra), in order to prove andattract the provisionsof Order 2 Rule 2of the Code, the partywho made allegation is under obligation to file copy of pleading with a view to prove the previous suit and its nature. 11.1n the present case, the appellant herein/plaintiff has not denied filingof' previous suit on the basis of bayana Ghitti for declaration and injunction against the respondents. Inter alia, the plaintiff himself has pleaded and verified the aforesaid facts in para 7 of his pleadingsofthg plaint. Admission is the best evidence to prove the facts. In the presentcase, the appellarit herein/plaintiffhasnot only admitted thefactum ofprevious suit but has pleaded in his plaint specifically and unambiguously. Therefore, any lapse on the part of the respondents jn producing the copy of pleading will not affect the evidentiary value of admission and pleading made bythe appellant herein. . 12.As heldby the Apex Court in the matter of Gurbux Singh (supra), in order that a pleaof a barunder Order 2 Rule 2 (3) of the Codeshould succeed the defendant who raises the plea must make out (1) that the second suit was inrespect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to morethan one relief the plaintiff, withoutleave obtainedfrom the Court, omitted to sue for the relief for which the second suit had been filed. .. - .' 1:'; ' • • .', . • ' ,,,:;' . '' •t 13.Definitely, in the present case, the relief claimed in the first suit of declaration and permanent injunction was based on the bayana chitti, allegedagreement to sale of thesuit land by the respondents in favour of the appellant. The present suitisalso based onthe sameagreementfor specific performance of contract and for relief of permanent injunction. Virtually, in case of agreement of selling property by pne party to another, the most essential reliefwhich could be claimed by the party in whose favour the document is executed woyld be performance of alleged contract agreed between the parties, by both the parties. Another ancillary relief based on the rightaccrued on the basis ofsuch. agreementor may accrue in future, in such cases the first and foremost substantive relief which the party can claim is a suit for the relief of specnfi&^perfbrmanc^.'c^^niract^^ not give any substantive righf tol^'Rarties unless^^s^ fulfilled^andperiorm^irilhemahnerprcMd^.lnthecircurnstancss,the mdstsubstantive relief based on the agreement ayailable tothe'plaintiff on the date of filing first suit was, the claim for specific performance of contract by showing his readiness & willingness againstthe respondents. But admittedly, the appeltant herein has not included such claim in his first suit. The appellant herein has not pbtained any permission from the Court for exclusion ofsuch claim prreserving his righttoclaim such relief jnfuture.!' ! ';. .1'1. - ' ! , ' '. - ' ^ :'^ ! : i1".' 1 • .;.: 14.As held bythe Apex Court in the matterofGurbuxSingh(supra), in the present case, definitely previous suitand presentsuit bpth are based on same cause of action,therefore, the appellant was under pbligation to include the claim of specific performance of contract, but he has riot includedsuch claim in the previoussuit. 15.While dealing with the question of bar created under Order 2 Rule 2 of the Code, the Apex Court in the matter of Wl/s. Bengal Waterproof (supra) has held that in case of continuous cause ofaction such barwill not operate. In the matter of hfl/s. Bengal WaterprOof (supra), first suit, was for recovery of dues of rent in one year and secondsyit was for recovery of dues of rent of another area. Although both the suits were based on same cause ofaction, but for different years and the suitswere based on continuouscause of action. Even otherwise, in suCh cases, parties are required to file different suits in different years for recovery of rent of each year. In such eases, bar under Order 2 Rule 2 of the Code will nof operate. Para 8 ofthe judgment of the Apex Court in M/s. BengalWaterproof's casereadthus, "As seen earlier.Order 2 Rule Zsub-rule (3) requires that the caiuse of action in theearlier suit must be the same on whichthe subsequentsuit is based and unless • there is identity of causes ofaction in both thesuits the bar of Order 2 Rule 2 sub-rute (3) will not get attracted. The illustration below thesaid Rule amply brings out this position. Amere look at the said illustration shows- that if a landlord sues the tenant in 1908forthe rentdue till that year and omits to sue for rent for any of the previous years which had then accrued due he cannot subsequently sue the tenant for the previous rent due, claim fpr which was given up in the suit. It is obvious thatasubsequent suit wouid not be barred in case of rent falling due after the firstsuit;say, for the year 1909 or 1910 etc. as that default would give him a fresh i@;p,^^;gatsi?^i?;^^^^s::;:^T'" ;^3;iK^^-li?!p%^?^' --\:.iil •;';";^"'^:" ^^^ s causeQfaetion.lnthefactsofthe present caSe it becomes obvioys fhat wKen earlier suit was filed in 1980 the plaintiff had a cayse of action regairding the alleged illegal use ofhis trade mark 'DUCK BACK' by the defendants and hadalso a grievance regarding the then existing deceitful action of the defendants in trying to pass off its goods 'DACK BftCK' as if (hey were similar to the plaihtiff's goods 'DUCK BACK'. Therefore, the cause of action for the first suit of 1980 was based on the jnfringement of plaintiffs trade mark 'DUCK BACK'by thedeferidants till the date ofthe suit filed in 1980. The grievance regarding passing off of the defendants' goods as ifthey were plaintiff's goodswas also confined to the situation prevailing on the date.of the earlier Suit No.238 of 1980. That suit failed as the plaintiff had not Glaimed proper relief. Consequently for the allegedacts of infringement of plaintiffs trade mark orthe alteged passing off actions onthe partof the defendants till the date of the earljer suit no subsequent grievance could be ventilated by the plaintiffsby filing a fresh suit. Itis'also pertinentto note that in the earlier suit, that is, the first suitthe plaintiff had claimed Rs.25,000/- by way of damages forthe alleged illegal acts of the defendants which were broughton the anvil ofscrutinyinthe1980suit. So far as that cause of action is concerned no subsequent suit liesas itwQuld be barred under Order 2 Rule2 sub- rule (3). But we are eoncerned in thesecond suitwith entirely a different grievance of the plaintiff. In the second suit, namely, the present suit the grievance is not based oh any acts of infringement of passing off alleged to have been committed by the defendants in 1980 but plaintiffs grievance is regarding the continuous acts of infringement of its trade mark 'DUCK BACK' and the continuous passing offaction onthepart of the defendants subsequent to the filing of the earlier suit and which had CQntinued on the date ofthe second suit of 1982. THe relevant averments regardingthe fresh cause of actionwhich had accrued to theplaintiff after the disposal of the earlier first suit are found in paragraphs 13 to 20 of the plaint in the present second suit. They read as under: RBBBaKSBp lT ', XXX XXX XXX XXX XXX XXX XXX XXX 'XXX Theaforesaid avermentsin the plaint clearly show that the present suit is not based on the some cause of action on which the earlier suit was based. The cause of action for .fifing this present second suit is the continuous and recurring infringement of plaintiffs trade mark by the defendants continuously till the filing of the present second suit. We asked the leamedcounsel for the defendants as to whetherpending the suit and at preserit also the defendants are trading in the offending goods, namely, bearjng themark 'DACK BACK' and he informedus that defendants even at present are ....Ad^A, ~">v ^.: •y'"''.»»' ;"'te.ai»?>" ^ carrying Qn this business. Therefore, pending the second suit all throughput and during the pendency of these proceedings the defendants have carried on thg business of trading in the commodity waterproof raincoats 'DACK BAGK'. It is obvious that thus the alleged infringement bf plaintiff's trade mark 'DUCK BACK' and thealleged passingoff actiononthe partof the defendants in selling theirgoods by passing offtheir goods as ifthey were plaintiffs goods has continued all throughout uninterrupted and in a recurring mariner. It is obvious thaf such infringement of a registered trade mark carried on from time to time would givea recurring cause 6f action to the holder oftRe trade mark to make a grievance about the same and similarly such impugned passing off actions also would give a recurring cause of action to the plaintiff to make a grievance about the same and to seek appropriate relief from the court. It Ts now well settled that an action for passing off is a common law remedy being an action in substance ofdeeeitunder the Law of Torts. Wherever and whenever fresh deceitfyl act is committed the person deceived woyld naturally have a fresh cause of action in hjs favour. Thus every time when a person passes off his goods as those of another he corTimits the act of such deceit. Similarly whenever and wherevera person commits breach of a registered trade mark of another he commits a recurring act of breach of infringement of such trade mark giving a recurring and fresh cause ofaction at each time ofsuch infringement to the party aggrieved. It is difficult to agree how in such a case when in historical past earlier suit was disposed of as technically not maintainable in absence" of proper reliefs, for all times to come in future defendantof such asuit should be armed with a licence to go on committing fresh acts of infringement and passing offwjth impunity without being subjected to any legal action against such future acts. We posed a question tothe learnedcounselforthe defendantsas to whether after the disposal of the earlier suit if the defendants had suspended their business activities and after a few years had resumed the sameand had started selling their goods under the trade mark 'DACK BACK' by passing them off, the plaintiff could have been prohibited and preverited by the bar of Order 2 Rule 2 syb-rule (3)from filing a fresh suitin futurewhensuch future infringementor passing off took place. He rightly. and fairly stated that such a suit would not be barred. But his only grievance was that whatever was the infringement or passing off alleged against the defendants in 1980 had, according to the plaintiff, continued uninterrupted and, therefore, in substance thecauseof aetion in both the suits was identical. It is difficult to agree. In cases of continuous causes of action or recurring causesofaction bar of Order 2 Rule 2sub-rule (3) cannot be invoked.In this connection it is profitable to have a look at Section 22 of the Limitation •/'•' •f"\. '"•"• swssa3& •Si-"" 10 fy^ Act, 1963. It lays down thgt 'in the case of a continuing breach ofcontract or inthe case of a continuing tort.a fresh period of limitation begjnstorun at eyery moment of the time during which the bea.ch or the tort, as the case may be, contjnues'. As act of passingoff is an act of deceit and tort every time when such tortious actor deceit is committed bythe defendant the plaintiff gets a fresh cause of action to come to the coyrt by appropriate proceedings. Similarly infringement of a registered trade mark would also be a continuing wrong solong as infringementcontinues. Therefore, whether the earlier infringement has continued or a new infringement has taken place cause of action for filinga fresh suit would pbviously arise in favour of the plaintiff who is aggrieved by such fresh infringements of trade mark or fresh passing off actions alleged against the defendant. Consequently, in our view even on merits the learned Trial Judge as well as thelearned Singte Jydge were obviously in error ir), taking the view that the second suit qf the plaintiff in the present case was' barred by Order 2 Rule 2 sub-rule (3), CPC." 16.The preseht suit is not based on continuous cause of action. The cause ofaction for filing suit for specific performance of contract in favour of the appellantarose when.as pertheclaim ofthe appellant, the respondents tried to dispossess the appellantafter placing him in possession, though we havenot considered parting of possession in favour of the appellant or the case that whether the appellant was in possession or not. Definitely, as held by the Apex Court in the matter of M/s. Bengal Waterproof (supra), the appellant was underobligatipn to includeall his claims whichhe was entitled to make in support of fhe cause of action in termsof Order 2 Rule 2 oftheCode. 17.As regards non-maintainability of present suit in the light-of the provisions of0rder2 Rule 2 (2) ofthe Code, the plaintiff/appellantherein has notelaimedspecific performance ofcontract in previous suit and he has omitted such claim in previous suit. In accordanGe with the provisions of Order 2 Rule 2 of the Code, parties are required to include the whole claim for which they are entitled to make in respect of the causeofaction.butthe plaintiffmay relinquish any