-IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.10 .2011 CORAM : THE HONOURABLE Mr.JUSTICE K. MOHAN RAM and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI A.S.No.178 of 2007 1.R. Radhakrishnan 2.R. Kailashkumar .... Appellants/Plaintiffs vs 1.G. Ekambaram 2.Arun alias Jayapal 3.E.Kaviarasu .... Respondents/Defendants Appeal filed under Sec.96 of the Central Procedure Code against the judgment and decree made in O.S.No.482 of 2004 dated 03.08.2006 on the file of the learned Addtiional District Judge Fast Track Court No.I, Chengalpattu. For appellant : Mr.T.V. Ramanujam Senior counsel for M/s K. Sridhar and L. Kishore For R.2 and R.3 : Mr.S. Parthasarathy, Senior Counsel for Mr.N. Damodaran For respondent : Mr.Muthappan G.M. AKBAR ALI,J., Appeal filed under Sec.96 of the Central Procedure Code against the judgment and decree made in O.S.No.482 of 2004 dated 03.08.2006 on the file of the learned Addtiional District Judge Fast Track Court No.I, Chengalpattu 2. The plaintiffs are the appellants. The suit was filed for Specific performance of an alleged sale agreement dated 13.8.1995. The brief facts are as follows: 3. The 1st respondent is the father and the respondents 2 and 3 are the sons. They inherited the suit property under a partition deed dated 17.9.1985. There are three schedules of property and each entitled to 36 cents. The 1st respondent entered into an https://hcservices.ecourts.gov.in/hcservices/ agreement of sale with the appellants on 13.8.1995 including the properties of respondents 2 and 3 who were minors. 4. The rate was agreed at Rs.20,000/-per cent and the 1st respondent received an advance of Rs.50,000/- on the date of agreement. The agreement was named and styled as `Token advance document for the sale of land' (Nila virkiraya Token advance pathiram). 5. According to the agreement, the 1st respondent must obtain permission from the competent court for the sale of minors' property and after obtaining permission and on verification of records, the appellant is to pay a further sum of Rs.6,00,000/- as advance and execute a sale agreement with usual terms. 6. In HMGOP No.39 of 1996 the learned Principal and District Judge, Chengalpattu passed an order permitting the 1st respondent to effect sale of the minors' property at Rs.3,200/- per cent. This order was passed on 30.4.1996. In the meantime, the appellant had paid a sum of Rs.50,000/- on 2.1.1996, and another sum of Rs.50,000/- on 8.1.1996 to the first respondent. 7. Since the permission was obtained from the Court, the appellants approached the 1st respondent with a sum of Rs.5,00,000/- and demanded execution of the sale deed. As the first respondent evaded a notice was issued on 12.7.1996 by the appellant to receive the said sum of Rs.5,00,000/- and also to complete the sale by receiving the balance sale consideration within four months from the date of receipt of above said amount. 8. The 1st repondent/defendant sent a reply in which he admitted that he entered into an agreement of sale and also admitted the receipt of an advance of Rs.50,000/- on the date of agreement and receipt of Rs.50,000/-each on 2.1.1996 and 8.1.1996. 9. However, it was stated that the sale was not in the interest of minors and therefore, the 1st respondent was not able to comply the demand of notice. The appellants filed a suit in OS No.930 of 1996 in the Court of Distrct Munsif for a permanent injunction restraining the respondents from disposing of the suit property. The suit was resisted by the respondents. Thereafter, the appellants filed the present suit for specific performance of the sale agreement on 13.8.1995. 10. The 1st respondent filed a written statement interalia stating that the alleged agreement dated 13.8.1995 is only an agreement to enter into a sale agreement of the property and it is not a concluded contract. He would admit the execution of such document to sell the suit properties at the rate of Rs.20,000/-per cent. He would also admit the subsequent payments dated 2.1.1996 and 8.1.1996. However, he would state that the appellant himself engaged his own lawyer to file HMGOP No.39 of 1996 and has given a false information by stating the sale price at Rs.3,200/- per cent. He would also allege that the value of the property was more than Rs.30,000/-per cent and the sale of the property is not in the https://hcservices.ecourts.gov.in/hcservices/ interest of the minors and he is not bound by the agreement dated 13.8.1995 which is not a concluded contract. 11. The 1st respondent had also taken a stand that the present suit was not maintainable under Or.2 Rule 2 CPC as the plaintiff had failed to claim similar relief in O.S.No.930 of 1996 which is the earlier suit and therefore the subsequent relief is barred. 12. The defendants 2 and 3 represented by their guardian, filed a separate written statement. They would allege that the 1st respondent cannot enter into an agreement of sale on their behalf since they were minors and the sale agreement was against the interest of the minors. They would also state that the 1st respondent had acted against their interest and he is also of immoral character spending lavishly and had filed a petition before the District Court with false information and that they were not bound by the agreement dated 30.8.1995. 13. The appellants filed a reply statement stating that the stand of the respondents 2 and 3 is only an after-thought and collusion between the father and sons and the suit for specific performance is not hit under Or.2 Rule 2 of CPC as the earlier suit was for a different cause of action. 14. With these pleading, the parties went for a trial before the learned Additional District Judge cum Fast Track Court No.I, Chengalpattu. The learned Judge framed as many as 6 issues and 4 additional issues and after hearing the arguments, recast the following 5 issues: 1. whethere the suit agreement is a sale agreement? 2. Whether a specific relief can be granted on the basis of the agreement? 3. whether the agreement is binding on the minor defendants 2 and 3? 4. Whether the plaintiffs are entitled for the specific performance of the contract? 5. To what relief?, 15. The plaintiff examined 2 witnesses and marked 18 documents. The respondents also examined 2 witnesses but did not mark any document. 16. On analysing the oral and documentary evidence, the trial court found that the agreement was not a concluded contract, but only an agreement to enter into a sale agreement and on that agreement, the plaintiffs are not entitled for specific performance of contract. Therefore, the trial court dismissed the suit. However, the trial court neither framed the issue whether the suit https://hcservices.ecourts.gov.in/hcservices/ is barred under Or 2 Rule 2 of CPC, nor a finding was given thereof. The trial court has also not framed an issue whether the appellants were ready and willing to perform the contract of sale agreement. Aggrieved by the dismissal of the suit, the plaintiffs are before this court. 17. The points for consideration arising in the present appeal are; 1. whether the agreement dated 13.8.1995 is a concluded contract? 2. If so, whether the appellants are entitled for relief of specific performance of contract? 18. Mr.T.V. Ramanujam, learned senior counsel for the appellant would submit that the agreement dated 13.8.1995 is an agreement of sale and a concluded contract. The learned senior counsel pointed out that the agreement was entered into between the appellants and the 1st respondent for himself and on behalf of the respondents 2 and 3, for the sale of properties belonging to them at a sale price of Rs.20,000/-per cent and the 1st respondent had received a sum of Rs.50,000/-as advance. 19. The learned senior counsel pointed out that obtaining permission from the competent court for the sale of minors' property is only a condition incidental to the sale agreement and receipt of the 2nd instalment of Rs.6,00,000/- is only a further condition before completing the sale. 20. The learned Senior counsel further pointed out that in continuance to the said agreement, the 1st respondent had filed an application before the District Court, Chengalpattu and had obtained a permission to sell the minors' property and he has also received a sum of Rs.50,000/- on two occasions towards sale consideration. He would further state that when the 1st respondent has failed to receive the 2nd instalment of Rs.5,00,000/- and come forward to complete the sale, the appellants have issued the notice which was duly received by the 1st respondent and the reply is also to the effect admitting that he had entered into an agreement of sale. The only defence taken by the 1st respondent is that the value of the land is more than Rs.30,000/- per cent and the agreement is at the rate of Rs.20,000/- per cent and therefore, the wife of the respondent is not agreeable to sell the property. 21. The learned senior counsel also pointed out that the respondents never took a plea that it is not a concluded contract and for the first time in the suit such a plea was taken. The learned Senior would contend that the terms of the agreement dated 13.8.1995 would show that it is a sale agreement with definite terms and it is enforceabe under law. He further submitted that time for performence, though not mentioned in Ex.A1, is not a ground to hold that it is not a concluded contract. https://hcservices.ecourts.gov.in/hcservices/ 22. The learned senior counsel also pointed out that the appellants were all along ready and willing and also tendered a sum of Rs.5,00,000/-apart from the advance as a second instalment and therefore, they were entitled for a decree of specific performance of the contrct 23. The learned senior counsel relied on the following case laws: i) AIR 1964 (SC) 1810 (Gurbax Singh vs Bhooralal) ii) 2002 (3) MLJ 177 (R. Vimalchand and another vs Ramalingm and others) iii)1997 (1) SCC 99 (Bengal Waterproof Limited vs Bombay Waterproof Manufacturing Company and another) (iv) 2003 (9) SCC 606 (Bansari and others vs Ram Phal) (v) AIR 1968 SC 1028 (Kollipara Sriramulu (dead) by his legal representative vs T. Aswatha Narayana (dead) by his legal representatives and others) (vi) AIR 1923 PC 47 (Harichand vs Govind) (vii) 2004 (6) SCC 649 (P.D. Souza vs shondrilo Naidu) (viii) 2007 (5) SCC 295 (Maharshi Dayanand University and another vs Anand Co-op L/C Society Ltd and another) (ix)AIR 1960 Calcutta 752 (Gostho Behari Sirkar vs Surs Estates Ltd) (x) 2010 (3) SCC 1 (Trimex International Fze Limited, Dubai vs Vedanta Aluminium Limited, India) 24. On the other hand, Mr.S. Parthasarathy, learned senior counsel who appeared for the respondents 2 and 3 would submit that the agreement dated 13.8.1995 is not a concluded contract and the 1st respondent cannot enter into an agreement detrimental to interest of the minors. 25. The learned senior counsel pointed out that the case of the respondents 2 and 3 is that the 1st respondent had acted against the interest of the minors and an agreement which is against the interest of the minors is opposed to law. The learned senior counsel also pointed out that the suit is also barred under Or 2 Rule 2 CPC. 26. The learned senior counsel also pointed out that it is an https://hcservices.ecourts.gov.in/hcservices/ admitted case of the appellant that the permission petition was filed and prosecuted by the appellant giving false information and therefore, the respondents 2 and 3 are not bound by the agreement. 27. The learned senior counsel relied on the following case laws: i) AIR 1963 SC 1516 (Panna Lal vs State of Bombay) ii) 1987 (Supp) SCC 528 (Mahant Dhangir and another vs Madan Mohan and others) (iii) AIR 1963 SC 884 (Nedunuri Kameswaramma vs Sampath Subba Rao) (iv) 2010 (5) CTC 423 (Bafna Developers vs D.K. Natarajan) (v) 2002 (2) SCC 73 (Savitri Pandey vs Prem Chandra Pandey) (vi) AIR 1983 (Mad) 169 (H.G. Krishna Reddy & Co vs M.M. Thimmiah and another) (vii) 2010 (8) MLJ 52 (Sornam and others vs A. Venugopal and others) (viii)2009 (1) SCC 475 (Speech and Software Technologies (India) Pvt Ltd vs Neos Interactive Limited) 28. Mr.Muthappan, learned counsel for the 1st respondent would also submit that the agreement dated 13.8.1995 is not a sale agreement and not binding on the respondents. 29. We have carefully considered the rival contentions putforth on either side and perused the materials available on record. 30. The admitted facts of the case are as follows: The respondents 1 to 3 were allotted the suit properties under a registered parition deed dated 17.9.1985, marked as Ex.A.13. Each is entitled to 36 cents. The 1st respondent had entered into an agreement on 13.8.1995 for the sale of the property which was allotted not only to him but also to the respondents 2 and 3. The sale consideration was at Rs.20,000/-per cent and he had received a sum of Rs.50,000/- on 13.8.1995 as advance. He had also received a sum of Rs.50,000/- each on two occasions on 2.1.96 and 8.1.96. 31. An application to accord permission for the sale of the minors' property in HMGOP 39 of 1996 was filed before the District Court Chengalpattu and permission was also granted. https://hcservices.ecourts.gov.in/hcservices/ 32. The disputed facts are as follows; The agreement is only an agreement to enter into a sale agreement. Therefore, it is not a concluded contract. The appellents themselves had filed the permission petition before the District Court for the sale of the minors' property by giving a false information that the properties are to be sold at Rs.3,200/- per cent when the actual value of the property was more than Rs.30,000/-per cent. 33. The sale agreement is not in the interst of the minors and hence not binding. The suit is also barred under Or.2 Rule 2 CPC. as the appellants have filed earlier a suit for permanent injunction restraining the respondents not to alienate the property based on the alleged sale agreement. 34. As stated earlier, the trial court has not framed an issue whether the suit is barred under Order 2 Rule 2 CPC and has not given any finding. However, such plea is a legal plea and is also raised in the appeal. we have to consider whether the suit is barred under Order 2 Rule 2 CPC. 35. Or 2 Rule 2 CPC reads as follows: 2. Suit to include the whole claim. (1) ...... (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. 36. The learned Senior counsel relied on a decision reported in AIR 1964 (SC) 1810 (Gurbax Singh vs Bhooralal), wherein the Apex Court has held as follows: `7. In order that a plea of a bar under O.2 r.2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect 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 moe than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the https://hcservices.ecourts.gov.in/hcservices/ precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be treaceable to a particular cause of action but this might, by no means, be the universale rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under o.2.r.2 Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S.28 of 1950 were not filed by the appellant in the present suit as evidence in support of his lea under O.2 r.2, Civil Procedure Code. The learned trial judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previus suit contained in the plaint as a matter of deduction. At the stage of appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previus suit being on the record, a plea of a bar under O.2 r.2, Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read: „The plaint, written statement or the judgment of the erlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court“. 37. The learned senior counsel for the appellant also relied on a decision reported in AIR 2002 (3) MLJ 177 (R. Vimalchand and another vs Ramalingam an others), wherein, a Divison Bench of this Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ `29. In order to find out the maintainability of the suit, on the principle of o.2, Rule 2, C.P.C, one has to consider the necessary fact which give rise the cause of action of the earlier suit and not the mere right to file the suit. It is necessary to keep in mind that the term `cause of action' for the purpose of O.2, Rule 2, C.P.C means the cause of action which gives occasion for and forms the foundation of the suit. There is a distinction between `cause of action' and `right of action'. 30. O.2 C.P.C can be made applicable only if the earlier suit was disposed of and thereafter a fresh suit is being filed with the same cause of action for fresh relief. When the present suit has been filed during the pendency of the earlier suit, in our view, the provision of O.2 Rule 2 CPC is not attracted. It is also the fact that the present relief of specific performance was not within the jurisdiction of the Court in which earlier suit was pending“ 38. The learned Senior Counsel further relied on a decison reported in 1997 (1) SCC 99 (Bengal Waterproof Limited vs Bombay Waterproof Manufacturing Company and another),wherein the Apex Court has held as follows: `7..... So far as sub-rule (3) of Rule 2 of Order 2 CPC is concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred by the same it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press in service in that suit cannot be subsequently prayed for except with the leave of the court“. 39. The learned counsel for the respondents relied on a decision reported in 2010 (8) MLJ 52 (Sornam and others vs A. Venugopal and others), wherein the learned single Judge of this Court, in a matter, where the agreement holder initially filed a suit for injunction and later filed a suit for specific performance held that, when the cause of action urged in the later suit was very much available at the time of filing of the earlier suit, the https://hcservices.ecourts.gov.in/hcservices/ later suit will be barred under Or.2 Rule 2 CPC. 40. The case reported in AIR 2002 (3) MLJ 177 (R. Vimalchand and another vs Ramalingam an others), cited supra is a Division Bench ruling wherein also an earlier suit was filed for an injunction restraining the defendants not to alienate the property and the later suit was filed for specific performance of the contract. The division bench held that the cause of action has to be seen only from the averments in the pleadings and where the new suit is founded upon a cause of action distinct from that which was the foundation for the former suit, Or.2 Rule 2 CPC has no application. 41. In AIR 1964 (SC) 1810 (Gurbax Singh vs Bhooralal), cited supra, the Apex Court had also held that without the pleading being on the record, the court cannot infer the cause of action. 42. The decision reported in 1997 (1) SCC 99 (Bengal Waterproof Limited vs Bombay Waterproof Manufacturing Company and another) is also on the same line. 43. In the present case, though the respondents had pleaded that the present suit is barred under Or.2 R.2 CPC, they have not placed the pleadings of the former suit. They have also not raised an issue before the trial court and the trial court has also not gone into this issue. It is well settled that Or.2 C.P.C can be made applicable only if the earlier suit was disposed of and thereafter a fresh suit is being filed with the same cause of action for fresh relief. When the present suit has been filed during the pendency of the earlier suit, the provision of O.2 Rule 2 CPC is not attracted. It is also the fact that the present relief of specific performance was not within the jurisdiction of the Court in which earlier suit was pending. More over the respondents have also not produced the plaint filed in the earlier suit for permenent injunction. Therefore, we are of the considered view that the present suit is not barred under Or.2 Rule 2 CPC. 44. Now the only question is whether the suit agreement is a concluded contract? In a Privi council case reported in AIR 1923 PC 47 (Harichand vs Govind) (cited supra) it is held that `whether an agreement is a completed bargain or merely a provisional arrangement depends on the intention of the parties as deducible from the langauage used by the parties on the occasion when the negotiation take a concrete shape. As observed by the Lord Chancellor, in Ridgway vs Walton the fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to an agreement but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by the previous agreement. The case before the Privy Council was that there were two agreements between the parties and in one agreement, there is a condition that the agreement holders' solicitors should approve the title and prepare a bargain paper. However, the Privy Council found that both agreements show clearly that the parties had come to a definite and complete agreement and the intention to draw up a https://hcservices.ecourts.gov.in/hcservices/ formal document later does not negative the binding nature of the previous agreement. 45. In AIR 1968 SC 1028 (Kollipara Sriramulu (dead) by his legal representative vs T. Aswatha Narayana (dead) by his legal representatives and others), as relied on by the learned senior counsel