TaxTMI 
TaxTMI 
TaxTMI 
2014 (10) TMI 919
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....ls are that the plaintiff filed a suit being O.S. No.252 of 1986 for specific performance of the agreement for sale dated 19.1.1984 with respect to aforesaid suit schedule property. According to him, the said land was allotted to the defendant on lease-cum-sale agreement on 4.7.1975 by the Tamil Nadu Housing Board (in short, 'Housing Board'). Since the defendant had not constructed building on the said site for the purpose of getting sale deed as contemplated under the lease-cum-sale agreement, the Board did not execute the sale deed in favour of the defendant. Hence, he entered into a sale agreement on 19.1.1984 with the plaintiff. In the said agreement, he agreed to sell the suit house site to the plaintiff for a total consideration of Rs. 3,84,220/- and received a sum of Rs. 1,00,000/- as advance in cash towards part of the sale consideration. It is alleged that the defendant agreed that after a sale deed executed in his favour from the Housing Board he will execute and register the sale deed in favour of the plaintiff or his family members after receiving the balance sale consideration. Time for performance of the agreement was tentatively fixed as four months and the same was ....
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...., Rule 2 of the Code of Civil Procedure because the plaintiff who instituted the earlier suit O.S. No.445/1985, should have included the relief for specific performance and, in any event, could not have filed O.S. No.252/1986 without any leave of the Court. 5. The defendant also filed a suit being O.S. No.3/1986 seeking a decree for injunction restraining the purchaser (defendants therein) from interfering with his possession and enjoyment of the suit property. The trial court tried all the three suits together and dismissed the suits filed by the plaintiff and defendant for injunction in O.S. Nos.445/1985 and 3/1986 and decreed the suit in O.S. No.252/1986 preferred by the plaintiff for specific performance with the direction to the defendant to execute and register the sale document in favour of the plaintiff. 6. Aggrieved by the judgment and decree of the trial court, the defendant S. Natarajan preferred appeals before the High Court being A.S. Nos.665 and 666 of 2001. 7. High Court held that the causes of action in both the suits filed by the appellant are identical, arose from the same transaction and that is why the trial court also had a common trial and decided the case ....
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....aintiff has come to court by filing O.S. 252/1986 with unclean hands. Though in the plaint filed in O.S. No.3/1986 which was filed on 5.9.1985, it is specifically stated that conditional sale deed dated 18.2.1985 was executed in favour of the appellant/defendant by the Tamil Nadu Housing Board. In O.S. No.252/1986 which was filed on 5.4.1986, the respondent/plaintiff has come forward with the false plea that the appellant/defendant had been representing to the plaintiff that he had not yet got the sale deed executed in his favour by the Tamil Nadu Housing Board, which is contrary to the averment made in the earlier suit. Learned counsel for the respondent/plaintiff also tried to submit that the respondent has no knowledge about the said document so as to enable him to file the suit for specific performance of the Agreement on that basis. The said plea is nothing but false in view of the specific averment made in the plaint in O.S. No.3/1986. The said plea that the sale deed is yet to be got by the appellant/defendant from the Tamil Nadu Housing Board is a material fact to enforce the right and got the sale deed by the respondent/plaintiff arose only after getting the sale deed by t....
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....his favour and now the plaintiff of the suit (respondent herein) is the absolute owner of the property. Having come to know about the transfer of the property by the Housing Board in favour of the plaintiff, legal notices were given by the appellant to the respondent and a regular suit for specific performance was filed. 13. Mr. Parasaran submitted that from bare reading of the plaints in two suits, it would be apparently clear that cause of action of each of the two suits by the plaintiff was quite different and distinct and the same would not attract the provisions of Order 2, Rule 2 CPC. Mr. Parasaran further submitted that the trial court had categorically held that the provisions of Order 2, Rule 2 shall have no application in the facts and circumstances of the case. Mr. Parasaran then drew our attention to the agreement dated 19.1.1984 and the codicil sale agreement dated 31.4.1984 to show that the period of sale agreement between the plaintiff-appellant and the defendant- respondent was further extended in anticipation of the transfer of the property by the Housing Board in favour of the defendant. Lastly, it was contended that the provision of Order 2 Rule 2, CPC does not ....
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....e plaintiffs then gave complaint to the police and in response, the police immediately rushed to the suit property and warned the rowdies not to enter into the building. The plaintiffs, therefore, pleaded that the defendant was again arranging to gather unruly elements and to forcibly and unlawfully take possession of the suit property from the plaintiffs. With that apprehension, the suit was filed mainly on the cause of action which arose when the defendant attempted to forcibly occupy the suit property by driving away plaintiffs' workers and that the defendant was arranging to forcibly and unlawfully take possession of the suit property. The defendant, in his written statement, denied each and every allegation and stated that building was constructed by him and in fact the plaintiffs attempted to forcibly take possession of the building. 17. In the subsequent suit filed by the plaintiff being O.S. No.252 of 1986, a decree for specific performance of the agreement was claimed on the ground inter alia that the defendant in the earlier suit took a defence that the sale agreement was allegedly given up or dropped by the plaintiff. The cause of action, as pleaded by the plaintiff in ....
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....esponding to Order 2, Rule 2), where plaintiff made various claims in the same suit." 21. The Constitution Bench of this Court, considering the scope and applicability of Order 2 Rule 2 of the CPC, in the case of Gurbux Singh vs. Bhooralal, (supra) AIR 1964 SC 1810, held as under: "6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (i) 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 more 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 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 latter suit is based there would be no scope for the application of the b....
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....e pleadings in the earlier suit were not part of the record in the present suit." 22. In the case of of Kewal Singh vs. Lajwanti (supra), while considering the applicability of Order 2 Rule 2 CPC, this Court observed that:- "5. So far as the first two contentions are concerned, we are of the opinion that they do not merit any serious consideration. Regarding the question of the applicability of Order 2 Rule 2 CPC the argument of the learned Counsel for the appellant is based on serious misconception of law. Order 2 Rule 2 CPC runs thus: "2(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) 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." A perusal of Order 2 Rule 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of....
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....If, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar. (See Arjun Lal Gupta v. Mriganka Mohan Sur, (1974) 2 SCC 586; State of M.P. v. State of Maharashtra, (1977) 2 SCC 288; Kewal Singh v. B. Lajwanti, (1980) 1 SCC 290). 15. In Sidramappa v. Rajashetty, (1970) 1 SCC 186, it was laid down that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter [pic]namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2, CPC." 24. In the case of Sidramappa vs. Rajashetty & Ors., AIR (1970) SC 1059, this Court held: "7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiff's title to the lands mentioned in Schedule I of the plaint. The requirement of Order II Rule 2, Code of Civil Procedure 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 acti....
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.... a claim. If at the date of the former suit the plaintiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure. See Amant Bibi v. Imdad Husain, (1885) 15 Ind App 106 at pg.112 (PC). The crux of the matter is presence or lack of awareness of the right at the time of first suit. 27. The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit. The plaintiff could not have asked for arrears of salary under the law as it then stood. The plaintiff did not know of or possess any such right. The plaintiff, therefore, cannot be said to have omitted to sue for any right.....
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....ying to frustrate the agreement by alienating and transferring the suit property to third parties. On these facts, the Court observed :- "5. While the matter was so situated the defendant in both the suits i.e. the present petitioner, moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints in OSs Nos. 202 and 203 of 2007 on the ground that the provisions contained in Order 2 Rule 2 of the Civil Procedure Code, 1908 (for short "CPC") is a bar to the maintainability of both the suits. Before the High Court the defendant had contended that the cause of action for both sets of suits was the same, namely, the refusal or reluctance of the defendant to execute the sale deeds in terms of the agreements dated 27-7-2005. Therefore, at the time of filing of the first set of suits i.e. CSs Nos. 831 and 833 of 2005, it was open for the plaintiff to claim the relief of specific performance. The plaintiff did not seek the said relief nor was leave granted by the Madras High Court. In such circumstances, according to the defendant-petitioner, the suits filed by the plaintiff for specific performance i.e. OSs Nos. 202 and 203....
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...." 29. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement. 30. It is well settled that the ratio of any decision must be understood in the background of the facts of that case. The following words of Lord Denning in the matter of applying precedence have been locus classicus. "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." 31. In the case of Bharat Petroleum Corpn. Ltd. and Another vs. N.R. Vairamani and another, (2004) 8 SCC 579 at page 584, this Court observed :- "9. Courts should not place reliance on decisi....