CR No. 726 of 2007 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 726 of 2007 (O&M) Date of Decision: 18.08.2010 Suresh Chaudhary ....Petitioner Versus Rakesh Singhal and others ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Arun Jain, Sr. Advocate with Mr. Jaiveer Chandel, Advocate for the petitioner. Mr. Ashu M. Punchhi, Advocate for the respondents. ... Alok Singh, J. In the present petition, defended - petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 16.11.2006 passed by the Civil Judge, Junior Division, Chandigarh, whereby the trial Court has held that the suit filed by the plaintiff - respondent is not barred by Order 2 Rule 2 CPC. Brief facts of the present case are that an agreement to sell was executed between the parties on 25.1.1988. In the agreement to sell, CR No. 726 of 2007 2 following terms and conditions were settled between the parties: - “i) That the sale price of the above said house has been fixed as Rs.18,50,000 (Rupees Eighteen lacs fifty thousand only). ii) That the above said purchaser has paid a sum of Rs.50,000/- (Rupees fifty thousand only) i.e. Rs.25,000/- vide cheque No.247019 dated 25.1.1988 payable at Canara Ban, Sector 17-C, Chandigarh and Rs.25,000/- vide cheque No.247021 dated 25.1.1988 and the above said seller acknowledges its receipt. iii) That the last date for completion of the bargain has been fixed as 25.6.1988, which can be mutually extended with the consent of both the parties, if necessary. iv) That the price of the above said house includes the telephone and all other fittings and fixtures in the house. v) That the above said purchaser can get the sale deed registered in her own name or in the name of her nominee(s). vi) That the expenses on the registration of the sale deed i.e. purchase of stamps and registration fee etc. shall be borne by the purchaser alone. vii) That the above said seller shall obtain the No Objection Certificate from the Estate Office, Chandigarh and Income Tax Clearance Certificate from the Income-tax Department for the sale of his above said house. viii) That the above said seller shall be responsible for the payment of all electricity and water bills and telephone bills till the date of registration of the sale deed of the aforesaid CR No. 726 of 2007 3 house. ix) That in case the above said seller fails to perform his part of the contract in getting the sale deed registered in favour of the purchaser or her nominee(s) within the stipulated time, he will return double the amount received as earnest money without any hesitation and delay in case the above said purchaser fails to perform her part of the contract in getting the sale deed registered within the stipulated period, her earnest money shall stand forfeited in favour of the seller. However, it is the option of the purchaser either to accept the clause of damages or get the sale deed registered through the Court of law under the Specific Performance and Relief Act. x) That the above said seller shall hand over the vacant possession of the entire house to the above said purchaser alongwith all the original documents of the house including the deed of conveyance in original at the aforesaid house. xi) That this bargain has been finalized with the efforts of M/s. K.D. Sharma & Sons, Property Dealer, SCO No.837-38, Sector 22-A, Chandigarh to whom both the parties shall pay 2% commission separately on the total consideration amount. xii) That this agreement has been made in triplicate, the original is kept by the purchaser, the first copy of the above said seller and second copy of the above said Property Dealer for their reference and record.” Initially plaintiff - respondent filed a suit for injunction against the defendant - petitioner herein restraining the defendant from alienating CR No. 726 of 2007 4 the suit property in favour of third party. However, the aforesaid suit was withdrawn unconditionally. Thereafter, plaintiff filed suit for recovery of Rs.8,33,510/-. The aforesaid suit was filed on 17.8.1988 under Order 37 CPC as summary suit. No relief for specific performance was sought in the earlier suit for recovery. Realising the mistake, plaintiff moved an application seeking amendment in the plaint for incorporation of the relief of specific performance. The application for amendment was initially allowed by the trial Court vide order dated 28.3.1989, subject to payment of Rs.200/- as costs. The order of the trial Court dated 28.3.1989 was challenged in C.R. No.1054 of 1989 before this Court. The revision petition was heard and allowed by a Division Bench of this Court vide order dated 19.4.1990, thereby rejecting the amendment application seeking incorporation of the relief of specific performance. The order of the Division Bench of this Court dated 19.4.1990 was challenged before the Apex Court by way of SLP No.9327 of 1990, which was also dismissed vide order dated 18.2.1999. Thereafter, the suit filed by the plaintiff under Order 37 was rejected under Order 7 Rule 11 CPC by observing that summary suit for recovery alongwith damages is not maintainable. Thereafter, plaintiff filed present suit seeking relief of specific performance as well as seeking relief for refund of earnest money alongwith damages, in alternative. In the present suit, on the basis of the pleadings of the parties, preliminary issue was framed as to whether the suit is barred by Order 2 Rule 2 CPC. The trial Court vide impugned order dated 16.11.2006 decided the issue in favour of the plaintiff and held that the suit is not barred by CR No. 726 of 2007 5 Order 2 Rule 2 CPC. Feeling aggrieved from the order passed by the trial Court dated 16.11.2006, present petition is filed by the defendant. Mr. Arun Jain, learned senior advocate assisted by Mr. Jaiveer Chandel, advocate appearing for the petitioner, vehemently argued that the suit earlier filed by the plaintiff was only for the recovery of earnest money alongwith damages and no relief of specific performance was sought and an application for amendment incorporating relief of specific performance was dismissed upto the Apex Court, hence, fresh fruit seeking relief of specific performance is not maintainable and is barred by Order 2 Rule 2 CPC. He further argued that filing of the suit for recovery of earnest money alongwith damages, would amount to rescinding of the contract and on rescinding of the contract to sell, it is not open for the plaintiff to seek relief of specific performance. Mr. Jain placed reliance on the judgements of the learned single Judge of this Court in Tarsem Singh Vs. Sibu Ram, 1997(2) PLJ 268, in Ralli Vs. Satinderjit Kaur, 1998(2) PLJ 305 and in Vipan Kumar Vs. Asha Lata Ahuja, 2009(3) Punjab Law Reporter 255. To contra, Mr. Ashu M. Punchhi, Advocate appearing for the respondent vehemently argued that the suit for injunction was filed much much prior to the date fixed for execution of the conveyance deed dated 27.9.1988 and the same was withdrawn and thereafter, under the wrong advice, suit for recovery of earnest money alongwith damages was filed under Order 37 CPC and the same was rejected vide order dated 15.11.1991 on the application moved by defendant – petitioner under Order 7 Rule 11 CPC. Hence, after rejection of the plaint under Order 7 Rule 11 CPC, plaintiff is not prevented from filing fresh fruit claiming both the reliefs i.e. relief of specific performance as well as in alternative, relief for recovery of CR No. 726 of 2007 6 earnest money alongwith damages. Mr. Punchhi further argued that any observation made by the Division Bench of this Court while hearing the revision on the application of amendment seeking incorporation of relief of specific performance of the contract, would have no binding effect in view of the fact that the earlier suit was rejected by the Court under Order 7 Rule 11 CPC vide order dated 15.11.1991. I have heard learned counsel for the parties and carefully examined the record. Undisputedly, plaintiff has filed suit for permanent prohibitory injunction against the defendant restraining the defendant not to alienate the suit property in favour of third party. Cause of action for suit for injunction arose because defendant was adamant not to enforce the agreement to sell and was issuing threat that defendant would transfer the property in favour of third party in violation of the agreement to sell. In the opinion of this Court, plaintiff could have also sought relief for specific performance of the contract alongwith relief for injunction since cause of action for specific performance of the contract had arisen in favour of the plaintiff the moment defendant denied to execute the conveyance deed in favour of the plaintiff in compliance with the agreement to sell and gave threat that he would alienate the property in favour of third party in violation of the agreement to sell. However, suit for injunction was withdrawn by the plaintiff without any liberty from the Court to file fresh suit. Thereafter, suit for recovery of earnest money alongwith damages, was filed by the plaintiff - respondent on 17.8.1988 after the last date fixed for execution of the sale deed dated 19.7.1988 as agreed between the parties in the agreement to sell. Admittedly, no relief for specific performance was sought in the earlier CR No. 726 of 2007 7 suit. Undisputedly, an amendment application moved by the plaintiff – respondent seeking the incorporation of the relief of specific performance, was rejected up to the Apex Court. After the rejection of the earlier suit for recovery of damages and earnest money plaintiff has filed present suit for specific performance and alternatively, for recovery of damages and earnest money. Now, question before this Court is as to whether present suit filed by the plaintiff is barred by Order 2 Rule 2 CPC so far as relief of specific performance is concerned ? Order 2 Rule 2 CPC 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 part of claim- Where a plaintiff omits to sue in respect of, or internationally 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. Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively CR No. 726 of 2007 8 to constitute but one cause of action.” In the opinion of this Court, Sub-rule (3) of Order 2 Rule 2 CPC provides that plaintiff may sue for all reliefs in respect of the same cause of action and if he omits to sue for all the reliefs available on the same cause of action, then he shall not sue afterward for any relief so omitted in the previous suit, unless he has obtained liberty from the Court at the time of filing of the first suit. Coming to the facts of the present case, of course, earlier suit for permanent prohibitory injunction was filed without seeking any relief of specific performance or recovery of earnest money alongwith damages, although, cause of action for the same had arisen in favour of the plaintiff because of the fact that defendant denied to execute the conveyance deed in favour of the plaintiff in compliance with the agreement to sell and issued threat to the plaintiff that the defendant would be alienating the suit property in favour of third party. Thereafter, plaintiff filed suit for recovery of damages and earned money under Order 37 CPC as summary suit. In the opinion of this Court, second suit for recovery of damages and earned money was also barred by Order 2 Rule 2 CPC in view of the filing of suit for permanent prohibitory injunction without claiming any relief for specific performance or recovery of damages and earnest money. Not only this, in the second suit, again no relief was claimed for specific performance of the contract. In the opinion of this Court, filing of fresh suit after rejection of the plaint under Order 37 CPC would amount to filing of suit as such for recovery. Now, question is as to whether plaintiff can claim relief for specific performance in the present plaint, which was filed after rejection of CR No. 726 of 2007 9 the previous one ? In the opinion of this Court, now plaintiff cannot seek relief of specific performance in view of Order 2 Rule 2(3) CPC as interpreted hereinabove. Present suit would be deemed to be in continuation of the previous suit, which was wrongly filed under Order 37 CPC. One more reason is that the amendment application seeking incorporation of the relief of specific performance stood rejected up to the Apex Court, hence also, plaintiff is precluded to seek relief of specific performance in the present suit. We have to keep in mind that if the plaintiff is not seeking any remedy directly, he cannot be permitted to seek the same remedy indirectly. Once it is held that he should have filed suit seeking relief of specific performance as the main relief at the time he filed first suit for injunction and thereafter, suit for recovery of earnest money and damages, it means, he cannot subsequently, by way of fresh suit, seek relief of specific performance, which is barred by Order 2 Rule 2(3) CPC. Learned Single Judge of this Court in Tarsem Singh’s case (supra), in paragraph 3 has held as under: - “3. After hearing the counsel for the parties and on going through the judgment in Bhagwan Kaur's case (supra), cited by counsel for the appellant, I am of the view that the appeal has no merit and is to be dismissed. It is true that some of the observations in the judgment cited by the counsel go in favour of the appellant, but in view of the decision of the Apex Court in Sidramappa v. Rajashetty and Ors., A.I.R. 1970 S.C. 1059, reliance on which has been placed by the first appellate Court, I am of the view that judgment in Bhagwan Kaur's case is of no help to the appellant. Under the agreement to sell, Ex. P1, the CR No. 726 of 2007 10 sale-deed was to be got executed and registered on or before 28th May, 1989. Appellant after the expiry of the date fixed in the agreement for execution of the sale-deed, instead of filing a suit for specific performance instituted a suit for injunction on 31st January, 1990. In the said suit, he sought injunction for restraining the defendant from selling the property to any other person except him. The said suit was dismissed as withdrawn. The present suit for specific performance is specifically barred as Order 2, Rule 2, Code of Civil Procedure, clearly provides that 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. It further provides that 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 reliefs so omitted. Admittedly, on the date when the suit for injunction was filed, a right had accrued to the appellant to sue for specific performance of the contract on the ground that the defendant has failed to execute the sale-deed on or before the date fixed in the agreement. Plaintiff not only omitted to sue for specific performance. of the contract, but also did not seek any leave of this Court to sue for such relief onwards. Foundation of the previous suit was the agreement to sell and the foundation in the present is also the same agreement. In Sidramappa's case (supra), the Apex Court in context of Order CR No. 726 of 2007 11 2 Rule 2, Code of Civil Procedure, has held, "that the requirement of Order 2 Rule 2, is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.” In the matter of Ralli (supra), learned Single Judge of this Court in paragraph 8 has held as under: - “8. As regards the judgments cited by counsel for the plaintiff, it is true that in Sardari Mal's and Bhagwan Kaur's cases (supra) despite the filing of suits for injunction, subsequent suits for specific performance of the agreement were held to be maintainable and Order 2 Rule 2, of the Code was ruled as no bar to the maintainability of suits for specific performance. But in my view, plaintiff cannot derive any help from the decisions in those cases because of the law on the subject settled by the Apex Court in Sidramappa's ease (supra). In Bhagwan Kaur's case (supra), the judgment of the Apex Court in Sidramappa's case (supra) was not noticed. As already seen, foundation in both the suits being the same and leave having not been sought from the Court to sue for such relief afterwards, suit for specific performance is clearly barred under Order 2 Rule 2, CR No. 726 of 2007 12 Code of Civil Procedure.” In the matter of Vipan Kumar (supra), learned Single Judge of this Court in paragraph 34 has held as under: - “34. There can be no dispute with the contentions raised by the learned counsel for the appellant. However, it may be noticed that in the present case when the suit for injunction was filed by the respondent/plaintiff on 6.2.1980 the cause of action to enforce the agreement by way of specific performance was available to her, as 28.1.1980 was fixed the date for execution of the sale deed. The contention raised by the learned senior counsel for the appellant claiming that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure, therefore, deserves to be accepted, in view of settled law.” The ratio laid down in the above cited judgements supports the view of this Court and this Court is in full agreement with the ratio laid down in the judgements cited by the learned counsel for the petitioner. In view of the discussion made hereinabove, order impugned cannot be sustained in the scrutiny of law. It is held that present suit for recovery as well as for specific performance of the contract is barred by Order 2 Rule 2(3) CPC. Petition is allowed accordingly. No costs. ( Alok Singh ) Judge 18.08.2010 sk.