High Court Of Judicature At Madras

P. Pandian V. T. Arul Jothi & Another

C.R.P. (PD). No.401 of 2009 & M.P. No.1 of 2009. 13-08-2010

JUDGMENT

(Prayer: The above Petition is filed against the order and decretal order dated 12.2.2008 made in I.A. No. 40 of 2008 in O.S. No.28 of 2008 on the file of the Principal District Court, Dharmapuri.)

1. This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 12.12.2008 made in I.A. No. 40 of 2008 in O.S. N0.28 of 2008 on the file of the learned Principal District Judge, Dharmapuri.

2. The Plaintiff is the Petitioner and the Respondents are the Defendants 1 and 2. The Plaintiff filed O.S. No.28 of 2008 on the file of the Principal District Court, Dharmapuri, praying for a decree of specific performance to enforce the terms of the Sale Agreement dated 30.5.2005 entered into between the Petitioner and the First Respondent herein in respect of the Suit property.

3. The First Respondent herein filed I.A. No.40 of 2008 under Order 7, Rule 11(d) and Order 2, Rule 2 of Civil Procedure Code to reject the Plaint as being barred under Order 2, Rule 2, CPC. In the Affidavit filed in support of I.A. No.40 of 2008 the First Respondent stated that the Petitioner had filed the Suit for specific performance to enforce the Sale Agreement dated 30.5.2004 and that prior to the filing of the present Suit, the Petitioner had filed O.S. No.331 of 2005 before the District Munsif Court, Harur, against the Respondents herein for a relief of permanent injunction restraining them from alienating the property mentioned in the Sale Agreement dated 30.5.2004.

4. it was contended that the parties in both the Suits are same and the cause of action for filing both the Suits is pursuant to the Sale Agreement dated 30.5.2004 in respect of the same property and even though the cause of action for the Suit for specific performance was available at the time of filing O.S. No.331 of 2005, the Petitioner herein knowingly and intentionally omitted to sue for the relief of specific performance and non-inclusion of such a prayer in the earlier suit operates as a constructive res judicata under Order 2, Rule 2 of C.P.C. and therefore O.S. No.28 of 2008 is liable to be rejected.

5. The Petitioner herein resisted the Application by filing a Counter Affidavit inter alia contending that the cause of action though arising out of the Sale Agreement dated 30.5.2004 the cause of action for Suit, for specific performance was different and the Petitioner had filed O.S. No.331 of 2005 before the District Munsif Court, Harur, only for a relief of permanent injunction to forbear the First Respondent from encumbering the Suit Property and the Suit is still pending and no decision has been rendered on merits. Further, the District Munsif Court, Harur, granted an order of interim injunction in I.A. No. 1217 of 2005 and even during the subsistence of the order of injunction, the First Respondent created a mortgage on the Suit property and the Petitioner has filed an Application for initiating Contempt proceedings against the First Respondent; that the First Respondent agreed to sell the Suit property and entered into the Suit Sale Agreement on 30.5.2004 and the sale had to be completed within a period of 18 months which had come to an end on 30.11.2005 and it is only thereafter the Petitioner gets a right to enforce such an agreement and therefore, the subsequent Suit is not barred.

6. The Principal District Court, Dharmapuri, by an order dated 12.12.2008 allowed the Application and rejected the Plaint as being barred under Order 2, Rule 2 of C.P.C. and aggrieved by such order, the Petitioner/Plaintiff is before this Court by way of this Revision Petition.

7. Though notice has been served on the Respondents through Court as well as privately and their names are printed in the cause list, non appears for the Respondents.

8. The question which arises for consideration is as to whether O.S. No.28/2008 is hit by the provisions of Order 2, Rule 2, C.P.C. in view of the earlier Suit filed by the Petitioner in O.S. No.331 of 2005 on the file of the District Munsif Court, Harur. It is to be noted that the Suit in O.S. No. 331 of 2005 filed before the District Munsif Court, Harur, was for a relief of injunction to restrain the first Respondent herein from alienating or encumbering the Suit property. It is true that the Suit property in both the Suits are same and the Petitioner seeks to enforce his right based upon the Sale Agreement dated 30.5.2004. It was contended by the First Respondent before the Trial Court that the Petitioner had deliberately omitted to sue for the relief of specific performance while filing O.S. No.331 of 2005 and therefore, the subsequent Suit for such a relief operates as constructive res judicata under Order 2, Rule 2, C.P.C.

9. In terms of Order 2, Rule 2, C.P.C., where the 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.

10. Admittedly, when the Suit for injunction came to be filed, the apprehension of the Petitioner was that the First Respondent was attempting to alienate the Suit property. Therefore, the Petitioner prayed for a relief of bare injunction. In paragraph No. 4 of the Plaint in O.S. No.331 of 2005, the Petitioner specifically reserved his right to enforce the terms of the Sale Agreement dated 30.5.2004. Therefore, it cannot be stated that the Petitioner had either omitted to sue for specific performance or intentionally relinquished his right to sure for specific performance. Further, it is to be noted that under the Suit Sale Agreement, the time for completion of the contract was stipulated as 18 months and the same came to end only on 30.11.2005. Therefore, the Petitioner’s right to enforce the Sale Agreement commenced only from the said date and not at any anterior point of time. Admittedly, O.S. No.331 of 2005 was presented before the District Munsif Court, Harur, on 1.8.2005 much prior to the date of expiry of agreement period i.e. 30.11.2005. That apart, it is seen that the Petitioner also filed Transfer O.P. No.9 of 2008 before the Principal District Court to transfer O.S. No.331 of 2005 from the District Munsif Court, Harur to the District Court. From the above acts, it could be hardly stated that the subsequent Suit namely O.S. No.28 of 2008 is barred by constructive res judicata.

11. Before the Trial Court, the First Respondent placed reliance on the decision of this Court in Raptakos Breet and Company Private Ltd. v. Modi Business Centre (Pvt.) Ltd., 2006 (2) CTC 799 and relied upon paragraph No.12 of the said Judgment. In fact in the said case, this Court held that the real test should be whether the causes of action for the present Suit was available at the time of filing of the first Suit or not and since in the said case it was factually established that the cause of action was available, it was held in the said case that the subsequent Suit is hit by Order 2, Rule 2, CPC. However, the facts in the present case are otherwise. It was the specific case of the Petitioner that the agreement could be enforced only after a period of 18 months and last date was only on 30.11.2005 and therefore, the Petitioner cannot be expected to sue for; specific performance prior to the expiry of the dates supported in the said agreement.

12. As pointed out earlier in the Suit for bare injunction, the petitioner has specifically reserved their right to sue for specific performance and for such other reliefs. In that view of the matter, I am of the opinion that the order passed by the Court below is not sustainable and accordingly, the Civil Revision Petition is allowed and the impugned order made in I.A. No.40 of 2008 in O.S. No.28 of 2008 dated 12.2.2008 is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.

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