Case: VURIMI PULLARAO S/O SATYANARAYANA Vs. VEMARI VYANKATA RADHARANI W/O DHANKOTESHWARRAO &amp; ANR

Civil Appeal No 9065 of 2019 (@ SLP (C) No 11811/2017)3. The facts on which the appeal arises are as follows (parties will be referred to by their descriptions in the suit):The subject of the dispute is agricultural land bearing Gat.No.111 admeasuring 3 H 05 R situated at Mauje Nayegaon, Taluka Nandura, District Buldhana. On 26 October 1995, the original defendant entered into an agreement to sell in favour of the original plaintiff in respect of the suit land for a total consideration of Rs 1,80,000. At the time of the agreement to sell, an amount of Rs 1,50,000 was paid by way of earnest to the defendant. The agreement stipulated that the sale deed would be executed by 25 October 1996 against the payment of the remaining consideration in the amount of Rs 30,000. On 11 October 1996, a notice was issued by the plaintiff to the defendant for performance of the contract. The plaintiff claims to have been present before the Sub-Registrar on 25 October 1996 for the registration of the sale deed. However, by a reply dated 13 October 1996, the defendant refused to execute the sale deed. In the meantime, it is alleged that on 16 October 1996, the defendant sought to obstruct the possession of the plaintiff over the suit land; the plaintiff claiming to have entered into possession in pursuance of the agreement to sell. A suit for injunction was instituted by the plaintiff, being Regular Civil Suit No 216 of 1997 before the Civil Judge, Junior Division, Malkapur. Paragraph 2 of the plaint in the earlier suit for injunction contained the following averments:The property mentioned in clause 1 of the plaint totally belongs to the defendant for which the defendant had entered into a bargain to sale with the plaintiff on 26.10.95 at a total price of Rs.1,80,000/-. Against the said bargain the defendant had taken on the same day from the plaintiff a sum of Rs.1,50,000/- in cash and gave in writing the bargain letter in favour of the plaintiff. Regarding the remaining amount of Rs.30,000/- it was agreed by the defendant that the same would be paid at the time of execution of sale deed and thus the bargain letter was obtained in writing by the plaintiff from defendant. On 26.10.1995 itself the defendant had handed over possession of the agricultural land to the plaintiff. Since that time the agricultural property is in possession of the plaintiff. Since the date of 26.10.1995 till today all formalities in respect of this land such as cultivation and all agricultural processes are being done by the plaintiff. On the said farm the plaintiff had spent a lot of amount for the agricultural activities. Thereafter several times the plaintiff asked the defendant to execute the sale deed of the said land in favour of the plaintiff. The plaintiff is ready to behave as per the bargain. The plaintiff informed the defendant that by paying the remaining amount of Rs.30,000/- to the defendant the plaintiff is ready to get the sale deed of the said property; but the defendant kept on prevaricating. Hence as decided earlier between the plaintiff and on 11.10.96 the defendant the plaintiff asked by sending a notice to the defendant to execute the sale deed of the said farm on 15.10.96. That registered notice was received by the defendant on 11.10.96; but on 15.10.96 the defendant did not remain present in the office of Sub-Registrar Nandura and did not register the said sale deed in favour of plaintiff when the plaintiff was present there with a cash of Rs.30,000/- to be paid to the defendant. Hence for getting the fulfilment of the agreement took place between plaintiff and the defendant on 26.10.1995 the plaintiff will file a suit in the Court of Honble Civil Judge Senior Division, Khamgaon4. The reliefs sought in the suit were a declaration that the plaintiff was in possession of the land and a permanent injunction restraining the defendant from obstructing the possession of the plaintiff. The suit for injunction was instituted on 30 October 1996. Admittedly, no leave of the Court was sought under Order 2 Rule 2(3) of the CPC in the earlier suit to institute a suit for specific performance subsequently5. On 30 April 1997, the appellant-plaintiff instituted Special Suit No 61/1997 before the Civil Judge, Senior Division, Khamgaon seeking specific performance of the agreement to sell the property. The earlier suit for injunction was dismissed in default on 16 September 2005. The defendant contested the maintainability of the suit for specific performance raising the bar under Order 2 Rule 2 of the CPC. No issue was framed by the Trial Court with reference to the provisions of Order 2 Rule 2. Nonetheless, the Trial Court by its judgment dated 13 October 2005 came to the conclusion that the plaintiff had omitted to sue for specific performance of the agreement although the cause of action had accrued in favour of the plaintiff at the time when the earlier suit for injunction (RCS No 216/1997) was instituted on 30 October 1996. Adverting to the certified copy of the plaint, which had been placed on the record, the learned trial judge noted that the plaint in the earlier suit made specific reference to the fact that the plaintiff would file a suit on the basis of the agreement to sell for claiming specific performance. The trial judge observed that the plaintiff had failed to seek the leave of the Court, when the suit for injunction was instituted, to file a subsequent suit on the same cause of action seeking performance. Consequently, the suit for specific performance was dismissed. In appeal, the Adhoc District Judge-I, Khamgaon by a judgment dated 6 January 2012 came to the conclusion that the bar under Order 2 Rule 2 was not attracted. In coming to this conclusion, the First Appellate Court held that:(i) No specific issue had been framed by the Trial Court in this regard;(ii) The pleadings in the earlier suit had not been proved to establish that the earlier suit and the subsequent suit were based on the same cause of action;(iii) No opportunity was furnished to the plaintiff to explain his pleadings in the plaint in the earlier suit; and(iv) The Trial Court ought to have framed a specific issue on the bar under Order 2 Rule 2On merits, the first appellate court adverted to the findings of the Trial Court and came to the conclusion that the suit for specific performance was liable to be decreed. The appeal was accordingly allowed and a decree for specific performance was passed with a direction to the plaintiff to deposit the balance consideration of Rs 30,000 within a period of one month. The plaintiff claims to have deposited the balance consideration on 3 February 20126. A Second Appeal was instituted before the High Court against the decree for specific performance. By a judgment dated 2 April 2013, a learned Single Judge of the High Court observed that while dealing with the appeal the appellate court ought to have explored the possibility of remand, inter alia, in view of provisions of Order XLI Rule 23 of the CPC. The High Court set aside the judgment of the first appellate court and remanded the case back to it by consent of parties to decide the appeal afresh7. On remand, the District Judge-I, Malkapur framed as one of the points for consideration, whether the suit was barred by Order 2 Rule 2 of the CPC. The District Judge noted that the certified copy of the plaint in the earlier suit was on record and marked as Exhibit 137. The plaint contained a reference to the execution of the agreement to sell dated 26 April 2015; to the payment of earnest of Rs 1,50,000 and to the defendant having been called upon on 11 October 1996 to execute the sale deed. The District Judge did not accept the objection of the plaintiff that the plaint in the earlier suit had not been shown when the plaintiff was in the witness box for the purpose of adducing evidence. The first appellate court in that context noted what had transpired during the course of the proceedings:It is material to note that by application dated 22.2.2005 vide Ex.-117 before the Trial Court the defendant has prayed for calling the original record of RCS No.216/1997 from the file of Nandura Court for proving the documents. The plaintiff has opposed that application with a say that certified copies of the documents can be placed on record instead of calling the original record. Accordingly, the learned Civil Judge, Sr.Dn., Khamgaon, has rejected the application on the ground that since certified copy can be filed on record, it is not necessary to call the original record. The record of the Trial Court further shows that one the same day i.e., on 22.2.2005, the defendant has moved another application vide Ex.118 in the nature of notice to admit the document i.e., the certified copy of plaint in RCS No.216/1997. That application came to be allowed by the learned Civil Judge, Sr. Dn., Khamgaon. It appears that in view of no objection from the plaintiff certified copy of the plaint in RCS no.216/1997 came to marked Ex.137. Therefore, now, plaintiff cannot say that opportunity was not given to him to explain his pleadings in RCS No.216/1997The first appellate court noted that certified copy of the plaint in the earlier suit for injunction (Exhibit 94) was placed before the Trial Court and its production was allowed. It was held that in order to support the decree passed by the Trial Court it was not necessary for the respondent in the appeal to file a memorandum of cross objections challenging a particular finding rendered by the Trial Court. Ultimately, it held that when the suit for injunction was instituted, it was open to the plaintiff to incorporate the relief of specific performance together with the relief of permanent injunction. The foundation for the relief of permanent injunction claimed in the earlier suit furnished a complete cause of action to sue for the relief of specific performance. All the essential ingredients on the basis of which the subsequent suit was instituted existed on the date when the earlier suit had been filed. Since the plaintiff omitted to seek the relief of specific performance which was available when the earlier suit for injunction was instituted, the Court inferred that the plaintiff had relinquished the claim for specific performance. Finally, the first appellate court also held that after exploring the possibility of remand, it had come to the conclusion that it was unnecessary to do so since the parties had proceeded fully to trial knowing their rival cases and had led evidence. In the circumstances, the absence of an issue did not (it was held) cause any prejudice, warranting a remand. The judgment of the first appellate court was upheld by the High Court in a Second Appeal on 6 January 2017. That is how the proceedings before this Court arise under Article 136 of the Constitution.

Reasoning:
13. In the present case, the earlier suit for injunction was instituted on 30 October 1996. Paragraph 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26 October 1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the defendant to perform the contract. Indeed, the plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26 October 1995. Under the agreement dated 26 October 1995, time for completion of the sale was reserved until 25 October 1996. Notice of performance was issued on 11 October 1996 to which the defendant had replied on 13 October 1996. The cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract. On 30 October 1996 when the suit for injunction was instituted, the plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which paragraph 2 of the plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the plaintiff omitted to sue for specific performance. This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted14. But the case of the plaintiff in appeal is that in order that the bar under Order 2 Rule 2 be attracted, it is necessary that the plaint in the earlier suit must be proved in evidence. In the present case it was submitted that this was not done. The basis of above submission is the judgment of the Constitution Bench in Gurbux Singh (supra)15. The situation as it obtained in the case before the Constitution Bench is distinct from the events as they transpired in the present case. The first appellate court, in the judgment which it delivered upon remand took note of the fact that the defendant had by its application at Exhibit 117 prayed for summoning the original record of the earlier suit for injunction for proving the plaint. The plaintiff opposed that plea with the assertion that a certified copy of the document could be placed on record instead of summoning the original record. The Civil Judge, Senior Division, accordingly rejected the application on the ground that since the certified copy was filed on the record, it was unnecessary to call for the original record. The defendant had moved another application at Exhibit 118 in the nature of a notice to admit the certified copy of plaint in the earlier suit. This came to be allowed by the Trial Court. The first appellate court noted that there was no objection from the plaintiff whereupon the certified copy of the plaint was marked as Exhibit 137. In this background, the first appellate court was clearly justified in coming to the conclusion that this is not a case where the plaintiff was deprived of an opportunity to explain the pleadings in the earlier suit. The finding that there was no prejudice to the plaintiff cannot be faulted. The parties were all along aware of the pleadings, the nature of the objection to the maintainability of the subsequent suit on the ground of the bar under Order 2 Rule 2 and the fact that the plaint in the earlier suit was brought on the record. Indeed, it was at the behest of the plaintiff that a certified copy of the plaint in the earlier suit was allowed to be brought on the record and marked as Exhibit 137. In the circumstances, we are of the view that the bar under Order 2 Rule 2 is attracted. The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the plaintiff that it was in pursuance of the agreement to sell dated 26 October 1995 that he had been placed in possession of the property. Yet, without seeking the leave of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, we agree with the finding which has been arrived at by all the three courts that the subsequent suit filed is barred under Order 2 Rule 2 does not warrant any interference in this appeal. The appeal would accordingly have to stand dismissed and we order accordingly16. However, there is one aspect of the case which, in our view, warrants a recourse to the power of this Court under Article 142 to render a complete justice between the parties17. Admittedly, the plaintiff has paid over an amount of Rs 1,50,000 to the defendant at the time of execution of the agreement on 26 October 1995. Apart from this, the plaintiff deposited the balance of the consideration of Rs 30,000 before the first appellate court on 3 February 2012 (a copy of the receipt is marked as Annexure P-4 to the appeal).