TaxTMI 
TaxTMI 
2016 (7) TMI 1569
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....sed. "1. The appeal impugns the judgment and decree of dismissal of a suit for specific performance of an agreement to sell of immovable property as barred by Order II Rule 2 of the Code of Civil Procedure, 1908. 2. Notice of the appeal was issued and the Trial Court record requisitioned. 3. Though the notice is reported to have been served but none appears for the respondent. 4. Though the learned Additional District Judge in dismissing the suit has relied upon my judgment in Lakhbir Singh Vs. Arun Kumar Khanna 209 (2014) DLT 708 but as far as I recollect, Supreme Court in Inbasagaran vs. S. Natarajan (Dead) Through LRs (2015) 11 SCC 12 has taken a view contrary to that taken by me in Lakhbir Singh supra against which it appears no appeal was preferred. 5. The counsel for the appellant seeks time to examine. 6. Even otherwise, it is deemed expedient to give another opportunity to the respondent to appear. 7. List on 19th May, 2016." 3. The counsels were heard on 19th May, 2016 and judgment reserved. 4. The trial court record has been requisitioned and has also been perused. 5. The appellant/ plaintiff on 18th ....
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....dismissed on a preliminary issue on this plea of the respondent/defendant, need to refer to the other defences of the respondent/defendant is not felt. 7. The appellant/plaintiff in his replication, with respect to the plea of Order II Rule 2 CPC pleaded that the earlier suit filed on 23rd September, 2013 had already been withdrawn on 21st February, 2014 with liberty to file a fresh and hence the question of bar of Order II Rule 2 CPC did not arise. 8. The learned Additional District Judge, vide order dated 25th November, 2014, on the pleadings of the parties framed the following issues. "1. Whether the suit of the plaintiff is barred by provisions of Order II Rule 2 CPC? OPD. 2. Whether the bayana agreement and receipts produced by the plaintiff are forged and fabricated? OPD. 3. Whether the plaintiff is entitled to the decree of specific performance as prayed? OPP. 4. Whether the plaintiff is entitled to permanent injunction as prayed? OPP. 5. Relief." and ordered the issue No. 1 be treated as a preliminary issue. 9. The learned Additional District Judge, vide impugned judgment/order dated 16th September, 2015, has de....
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....ill first deal therewith. In that case, after the seller had notified the purchaser of the purchaser being in breach of the agreement to sell for not paying the sale consideration, the purchaser had instituted a suit for permanent injunction to restrain the seller from creating third party rights in the property agreed to be sold and after obtaining an interim order therein and during the pendency of the said suit instituted the suit for specific performance and thereafter withdrew the earlier suit for injunction. Relying on the dicta of the Supreme Court in M/s. Virgo Industries (Eng) P. Ltd. Vs. M/s. Venturetech Solutions P. Ltd. (2013) 1 SCC 625 inter alia holding a suit for specific performance filed during the pendency of an earlier suit for injunction for restraining the seller from creating third party rights in the property to be barred by time and finding fault with the reasoning of the High Court that Order II Rule 2 CPC is applicable only when the first suit is disposed of, the suit was held to be barred by Order II Rule 2 CPC. 12. In Inbasagaran supra though the seller had been allotted the property agreed to be sold by the Tamil Nadu Housing Board, the Housing Board....
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....t on the basis of a distinct cause of action which he may have relinquished; (v) only if the two suits and the reliefs claimed therein are based on the same cause of action then only the subsequent suit will be barred by Order II Rule 2 CPC; however when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the seller of dispossession from the suit property, then subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be same cause of action; (vi) from the pleadings in the two suits, particularly the cause of action as alleged by the purchaser, it was clear that they were not same and identical; (vii) besides, there was nothing in the suit for injunction filed by the purchaser to show that the purchaser intentionally relinquished any part of his claim for the reason that the suit was for only injunction because of the threat from the side of the seller to dispossess the purchaser from the property; it was only after the seller disclosed the execution of the sale deed in his favour by the Housing Board and denied execution of sa....
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....tiff from the suit property and to chief his illegal design he is adopting the different tactics. 11. That thereafter the defendant approached to plaintiff on 1.8.2013 and told to vacate the premises in question the plaintiff told the defendant that he has already made the big share of the entire payment of the said property and requested not to disturb his possession over the suit property on this the defendant threatened the plaintiff that she will come again along with her associates and forcibly dispossess the plaintiff from the suit property. 12. That the plaintiff was/is always ready and willing to perform the part of her contract and is ready to pay the balance payment along with 2% interest as per the terms and conditions mentioned in the aforesaid agreement to sell to the defendant and due to the demise of the husband of the defendant, the agreement cannot be performed. 13. That the defendant along with her associates again came to the plaintiff at the suit property on 30.8.2013, and started throwing the goods lying in the suit property and tried to dispossess the plaintiff from the said property the plaintiff made hue and cry and due to the inte....
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....specific performance to be barred by Order II Rule 2 CPC. The High Court allowed both the appeals. Supreme Court upheld the judgments of the High Court. With respect to the plea of Order II Rule 2 CPC it was held - (i) that for Order II Rule 2 CPC to apply the cause of action in later suit has to be the same as in the first suit; (ii) that the suit for permanent injunction was based on a threat of dispossession; (iii) the cause of action for the subsequent suit for specific performance was non- performance of the agreement to sell; (iv) both the suits were thus founded on the different causes of action and hence could be filed simultaneously; (v) that the ingredients to file the suit for permanent injunction are different than that of the suit for specific performance; (vi) that even if both the suits are based on identical pleadings and even if the cause of action to sue for relief for specific performance of agreement to sell was available prior to filing of the first suit, the second suit would not be barred by Order II Rule 2 CPC because the cause of action in the two suits is different; (vii) a suit for specific performance could not have been instituted on the basis of cause ....
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.... 22. In this view of the matter, there is nothing in the dicta of Rathnavathi supra also which dissuades me from following M/s. Virgo Industries (Eng) P. Ltd. supra which has not been disagreed with therein also. I therefore answer the first of the aforesaid questions in favour of the respondent/defendant and against the appellant/plaintiff and hold that in terms of M/s. Virgo Industries (Eng) P. Ltd. supra and Lakhbir Singh supra the suit from which this appeal arises was barred by Order II Rule 2 of CPC. 23. Though I had in order dated 29th April, 2016 reproduced above observed that no appeal appeared to have been filed against Lakhbir Singh supra but my subsequent research discloses Lakhbir Singh Vs. Arun Khanna MANU/DE/2131/2015 whereby the Division Bench of this Court, after noticing Inbasagaran supra and Rathnavathi supra, for similar reasons as have been given by me above, dismissed the appeal, holding Virgo Industries (Eng) P. Ltd. supra to be applicable to facts of that case. 24. Notice may also be taken of yet another judgment of a bench of two Judges in Coffee Board Vs. Ramesh Exports Pvt. Ltd. (2014) 6 SCC 424 where in the context of successive suits for recove....
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....f suits", in sub-Rules (3) and (4) of Rule (1) thereof (in exercise of power whereunder the earlier suit was permitted to be withdrawn with liberty aforesaid) provides as under: "(3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub- rule(1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may ....
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.... J. Subba Row Vs. J. Rama Row MANU/TN/0297/1916 : AIR 1917 Mad. 948; ii) Ghulam Muhammad Khan Vs. Nur Khan MANU/WB/0184/1917 : AIR 1917 Lahore 414; iii) Becharam Choudhuri Vs. Purna Chandra Chatterji MANU/WB/0048/1925 : AIR 1925 Calcutta 845 (FB); iv) Bhimangouda Vs. Sangappa Irappa Patil MANU/KA/0097/1960 : AIR 1960 Karnataka 178; v) Sukumar Banerjee Vs. Dilip Kumar Sarkar MANU/WB/0008/1982 : AIR 1982 Calcutta 17; vi) Parmanand (Dead) through L.Rs. Vs. Prescribed Authority (Munsif City), Meerut MANU/UP/0403/2001; and, vii) Times Publishing House Ltd. Vs. The Registrar of Newspapers of India MANU/KA/1457/2010 (DB). 30. Though I was reluctant to accept the aforesaid view in today's day where litigation is often instituted to harass, oppress and to delay relief to opposite party and not always for resolution of bona fide disputes and more so in the facts of the present case, where it appears that the claim for specific performance is being pursued to delay the ejectment of the appellant/plaintiff as a tenant from the subject premises and taking advantage of the death of the husband of the respondent/defendant and also for the reason of a new view taken by the Supreme Court in ....