R.S.A. No.2885 of 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2885 of 2002 Date of decision:20.07.2009 Parsani Devi and another ......Appellants Versus Angrej Singh and another ......Respondent Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.R.S.Longia, Advocate for the appellants. Mr.B.R.Gupta, Advocate for respondent no. 1. RAJIVE BHALLA, J. The appellants impugn the judgments and decrees dated 30.4.1998 and 25.01.2002, passed by the Civil Judge (Junior Division) Ambala and the Additional District Judge, Ambala, decreeing the suit for specific performance filed by respondent no. 1 and dismissing their appeal. Before proceeding to adjudicate the appeal, it would be necessary to mention here that vide order dated 21.08.2006, appellant no. 1 Smt. Parsani Devi was allowed to withdraw from the appeal. It was however, ordered that the appeal would proceed on behalf of Smt. Lajjo, who is the recipient of the suit property from Smt. Parsani Devi, pursuant to a collusive decree 1 R.S.A. No.2885 of 2002 dated 19.08.1991. The plaintiff-respondent no. 1 filed a suit for possession, by way of specific performance of an agreement to sell dated 9.08.1991, executed by Maya Chand as general power of attorney of Parsani Devi. As per the recitals in the agreement, the sale deed was to be executed on 5.06.1992. It was pleaded that as after the execution of the agreement, Parsani Devi and Maya Chand her attorney, made an attempt to alienate the suit land, a suit was filed for grant of a permanent injunction. On 17.08.1991, Parsani Devi and Maya Chand were restrained from alienating the suit land. Despite this order, Parsani Devi suffered a collusive decree dated 19.08.1991, transferring the suit land in favour of Smt. Lajjo, the wife of her general power of attorney, Maya Chand compelling the plaintiff to file a suit for specific performance. Parsani Devi contested the suit and apart from raising a large number of preliminary objections, averred that she had not authorized defendant no. 2 to alienate the suit land and therefore, the general power of attorney was cancelled on 16.08.1991 and the cancellation was registered on 19.08.1991. It was further, averred that the suit is barred by Order 2 Rule 2 of the Code of Civil Procedure, as the relief for specific performance was not included in the suit for permanent injunction. It was also pleaded that the suit is pre-mature as it has been filed before the date fixed for execution of the sale deed. On the basis of the pleadings, the learned trial court 2 R.S.A. No.2885 of 2002 framed the following issues: “1. Whether the defendant no. 2 was duly appointed as general attorney by defendant no. 1 and was allowed to alienate, gift or mortgage the land owned by the defendant no. 1 as alleged in para no. 2 of the plaint?OPP 2. If issue no. 1 is affirmed, whether the defendant no. 2 had entered into an agreement on behalf of the defendant no. 1 to sell land measuring 15 kanals4 marlas to the plaintiff at the ate of Rs.75,000/- per acre on or about 9.8.91?OPP 3. If issue no. 2 is affirmed, whether the defendants had received a sum of Rs. 30,000/- from the plaintiff towards earnest money on 9.8.91 itself, as alleged?OPP 4. Whether the plaintiff has always been ready and willing to perform his part of the agreement?OPP 5. Whether the suit of the plaintiff is not maintainable as alleged?OPD. 6. Whether the plaintiff lacks locus standi to bring the suit?OPD. 7. Relief.” After considering the pleadings, the evidence adduced 3 R.S.A. No.2885 of 2002 and the arguments addressed, the trial court held that the agreement to sell has been duly proved and that Maya Chand was authorized to execute it. It was also held that as the cause of action for filing the suit for specific performance arose during the pendency of the suit for permanent injunction, the suit is neither premature nor barred under Order 2 Rule 2 of the Code of Civil Procedure. It was also declared that the collusive decree dated 19.08.1991, suffered by Parsani Devi in favour of Lajjo, did not effect the rights of respondent no. 1. As a result, the trial court decreed the suit. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. Vide judgment and decree dated 25.01.2002, the Additional District Judge, Ambala, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that the suit is barred by Order 2 Rule 2 of the CPC, as while filing the suit for permanent injunction, respondent no. 1 did not pray for the relief of specific performance. It is further argued that in case it is held that the suit is not barred by Order 2 Rule 2, the suit would have to be dismissed as pre-mature, as the agreed date for execution of the sale deed had not arrived. Another argument pressed into service is that Parsani Devi's, attorney had no right to alienate the suit land or to execute the agreement to sell. Maya Chand is a close relative who shares a fiduciary relationship with Parsani Devi. He had no right to violate this relationship and execute the agreement to sell. It is argued that 4 R.S.A. No.2885 of 2002 when Parsani Devi came to know of this fraud, she immediately cancelled the power of attorney and transferred the property to Lajjo, the surviving appellant. It is submitted that in view of what has been stated hereinabove, the appeal be allowed, the judgment and decree passed by the courts below be set aside. Counsel for respondent no.1, on the other hand, submits that no question of law much less a substantial question of law arises for consideration. The courts below have returned concurrent findings of fact that do not suffer from any error or raise any substantial question of law. It is argued that the courts below, rightly rejected the argument that the suit is barred by Order 2 Rule 2 of the Code of Civil Procedure as the cause of action to pray for specific performance arose after the filing of the suit for permanent injunction. As regards the argument that the suit is pre-mature, it is submitted that Parsani Devi, suffered a collusive decree in favour of Lajjo, violating the agreement to sell and giving rise to the cause of action to seek the relief of specific performance. It is further argued that the argument, based upon the alleged misconduct of her general power of attorney stands falsified by the fact that Parsini Devi, suffered a collusive decree in favour of her attorney’s wife, Lajjo. In case the attorney had duped her or breached any fiduciary relationship, she would not have suffered a collusive decree in favour of his wife. It is prayed that as no question of law much less a substantial question of law arises for consideration, the appeal be dismissed. Counsel for the appellants has framed in all, nine 5 R.S.A. No.2885 of 2002 substantial questions of law. However, during argument counsel for the appellants, states that the substantial questions of law that arise for adjudication are as follows:- “1. Whether the suit for specific performance is barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure? 2. Whether the suit is not premature? 3. Whether Maya Chand violated his fiduiciary relationship with Parsani Devi?” I have heard counsel for the parties, perused the impugned judgments and decrees and express my inability to acceed to the arguments advanced by counsel for the appellants. Parsani Devi executed an agreement to sell dated 9.08.1991, through her attorney Maya Chand, agreeing to sell the suit land. The sale deed was to be executed on 5.06.1992. As respondent no. 1 apprehended that Parsani Devi would alienate the property, he filed a suit for permanent injunction to restrain Parsani Devi and Maya Chand from alienating the suit land. Despite, the grant of an interim injunction, Parsani Devi, suffered a collusive decree dated 19.08.1991 in favour of Lajjo, who is the wife of her attorney Maya Chand, compelling respondent no. 1 to file a suit for specific performance on 31.08.1991. In order to answer the first question of law, it would 6 R.S.A. No.2885 of 2002 be appropriate to reproduce the provisions of Order 2 Rule 2 of the Code of Civil Procedure, which read as follows: Rule 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 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 entiled 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 purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed 7 R.S.A. No.2885 of 2002 respectively to constitute but one cause of action.” Order 2 Rule 2 of the Code of Civil Procedure, postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action or claim. Where, however the plaintiff omits to sue or intentionally relinquishes any portion of his claim, he shall not thereafter, bring forth a fresh suit, in respect of such part of the cause of action, so omitted or relinquished. It is therefore, apparent that where the bundle of facts, that constitute a cause of action give rise to one or more claims or reliefs and being entitled to sue on such claims or pray for such reliefs, the plaintiff omits to sue for any of such claims or omits to pray for grant of any such relief, he shall not thereafter, sue on such claim or pray for such relief, except in accordance with any liberty that may have been granted by a court. Order 2 Rule 2 of the Code of Civil Procedure is a species of the doctrine of res-judicata and incorporates a salutory principle of law that where a party omits to sue on a claim or for a relief, it shall not thereafter, be permitted to sue for such claim or for such relief. The key to an understanding of Order 2 Rule 2 of the Code of Civil Procedure, as applicable to the facts of the present case, lies in the words.... “shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action….”. The question, therefore, is whether respondent no. 1 was “entitled to” pray for the relief of specific 8 R.S.A. No.2885 of 2002 performance, when he filed the suit for permanent injunction. The suit for grant of a permanent injunction was filed on an apprehension that Parsani Devi would alienate the land subject matter of the agreement to sell. During the pendency of this suit and despite the grant of an injunction against her Parsani Devi violated the agreement and suffered a collusive decree dated 19.08.1991, in favour of Lajjo, thus giving rise to a cause of action to pray for the relief of specific performance. It is therefore, apparent that on the date of the filing of the suit for permanent injunction, the respondent was not “entitled to” make a prayer for specific performance of the agreement. The instant suit, therefore, cannot be said barred by the principles set out in Order 2 Rule 2 of the Code of Civil Procedure. The first question is answered accordingly. The second question raised by counsel for the appellants is that the suit is pre-mature, as it was filed before the date fixed for execution of the sale deed i.e., 5.06.1992. As noticed in the narrative of facts, Parsani Devi violated the agreement to sell by suffering a collusive decree on 19.08.1991. This intentional violation of the agreement to sell gave rise to a cause of action to file a suit for specific performance. The law does not countenance a proposition and none can be canvassed that where a contracting party violates a contract, the aggrieved party must wait for the date fixed for execution of the sale deed to arrive so as to allege that a cause of action has accrued for filing a suit for specific performance. The last argument relates to the plea, raised on behalf 9 R.S.A. No.2885 of 2002 of Parsani Devi, that Maya Chand was not authorized to execute the agreement to sell or that he misused his fiduciary relationship with Parsani Devi while executing the agreement to sell. There is no credible evidence on record to support the plea that Maya Chand was not authorised to execute the agreement to sell. Infact, the evidence is to the contrary. It would require notice that on the one hand Parsani Devi, alleges that the agreement to sell was executed by violating a fiduciary relationship and on the other hand proceeded to suffer a collusive decree in favour of Lajjo, who is Maya Chand’s wife, thus putting paid to her story of violation of a fiduciary relationship or the plea of fraud by Maya Chand. This argument, in my considered view was therefore, rightly rejected by the courts below. In view of what has been stated hereinabove, as the impugned judgments and decrees do not suffer from any error of law, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 20th July, 2009 SKaushik 10