As the relief sought for in the suit is based on an alleged
agreement for sale, seeking leave for the main relief of filing suit for
specific performance, but filing only a suit for permanent injunction to
restrain the other party to the alleged agreement from alienating or
selling the property to any third party is not legally maintainable, as per
Order 2 Rule 2 of the Code of Civil Procedure. The Court below, without
considering the plea of the plaintiff and the defence raised by the
respondent, simply passed one word order, "Permitted", which is totally
erroneous, that shows only the non-application of the mind by the Court
below. When the main relief should be for seeking specific performance of
the agreement, as per the pleadings in the plaint, the said main relief
cannot be reserved by any party, in order to avoid payment of heavy
court fee and file a suit, seeking bare permanent injunction, not to
alienate or sell the property to any third party, would certainly be against
the laudable principle of preventing vexatious litigations again and again
against the defendant, as held by the Hon'ble Apex Court. Hence, this
Court is of the view that the impugned order has been passed by the
Court below against law and the same is liable to be set aside, to meet
the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-01-2015
CORAM :
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
C.R.P (PD).No.2850 of 2013
and M.P.No.1 of 2013
R.Chendilvel vs G.Damodaran
Citation;AIR 2015 Madras 96
The Civil Revision Petition has been filed under Article 227 of the
Constitution of India, challenging the order, dated 11.01.2013 made in
I.A.No.711 of 2013 in O.S.No.329 of 2013 on the file of the XVIII
Assistant Judge, City Civil Court, Chennai.
2
2. The petitioner herein is the first defendant in the suit, that was
filed by the first respondent / plaintiff against the petitioner and
respondents 2 and 3, seeking permanent injunction restraining the
petitioner and the respondents 2 and 3 from alienating or encumbering
the suit property to any third party.
3. The Interlocutory Application in I.A.No.711 of 2013 was filed by
the first respondent against the petitioner and the respondents 2 and 3
herein under Order 2 Rule 2 r/w Section 151 of the Code of Civil
Procedure, seeking leave to file a comprehensive suit for seeking specific
performance on later stage on the same cause of action. The first
respondent, as plaintiff, has stated in the plaint that the cause of action
for the suit arose within the territorial jurisdiction of the City Civil Court,
Chennai on 07.04.1944 when the first defendant's forefather purchased
the property, vide Doc.No.1241/44 and the agreement of sale in favour
of the plaintiff was entered into at Chennai, after receiving the advance
sale consideration of Rs.40,00,000/- in chennai at the office of the plaintiff
and when signed the agreement by the plaintiff and defendant. In the
cause of action paragraph, the first respondent / plaintiff has not stated
the date of the agreement for sale. However, in the list of document filed
under Order 7 rule 14 (1) & 2 CPC, the first respondent / plaintiff has
stated Document No.1, agreement between the plaintiff and the
defendant, dated 08.10.2012 and also Memorandum of Understanding,
3
dated 02.08.2012. The xerox copy of the memorandum of understanding
filed in the typed set of papers would show that it is only an unregistered
agreement between the plaintiff and the other party.
4. As per the impugned order, dated 11.01.2013, the Court below
has allowed the petition, whereby granted leave to the first respondent /
plaintiff to file a comprehensive suit for specific performance on a later
stage, aggrieved by which, this Revision has been preferred by the
petitioner / defendant.
5. Mr.K.Gopalakrishnan, learned counsel appearing for the petitioner
submitted that the order passed by the Court below is against law,
whereby the Court below granted leave for the first respondent / plaintiff,
to file a separate suit for the main relief of specific performance of
contract. It was further argued by the learned counsel for the petitioner
that the first respondent / plaintiff could have filed a proper suit for
specific performance and paid Court fee for the value of the agreement
stated therein and also drew the attention of this Court to the
unregistered Memorandum of Understanding (MOU), which reads in
paragraph number 3 as follows :
"The party of the second part agree to purchase
the property for a total sale consideration of
Rs.4,40,00,000/- (Rupees four crores forty lakhs
only) and the party of the first part agreed for
the same."
4
It is seen that the proposed vendor, as per the MOU has been stated as
party of the first part and the proposed purchaser, D.Damodharan / first
respondent herein is stated as party of the second part.
6. As per the prayer, in the Interlocutory Application, the first
respondent / plaintiff has sought leave to file a suit for specific
performance of the agreement. As stated in the MOU, the sale
consideration, as per the agreement is Rs.4,40,00,000/-. Without filing a
suit, seeking specific performance of agreement, by making payment of
proper court fee for the said value of the agreement, the first respondent
/ plaintiff had simply filed a suit, seeking bare permanent injunction
restraining the petitioner / first defendant and defendants 2 and 3 from
alienating or encumbering the property, for which he valued the property
only at Rs.1,000/- under Section 27 (c) of Tamil Nadu Court Fees and
Suits Valuation Act.
7. As contended by Mr.K.Gopalakrishnan, learned counsel appearing
for the petitioner / D1, the main relief sought for should be for specific
performance of contract and the consideration fixed by the parties for the
value of the property is Rs.4,40,00,000/-. On the aforesaid
circumstances, the first respondent / plaintiff cannot file a suit, merely for
bare injunction restraining the owner of the property, not to alienate or
encumber the property, stating the value of the suit at Rs.1,000/-. Had
5
the suit been filed seeking specific performance of the contract,
consequential prayer could have been for injunction restraining the
petitioner / first defendant, not to alienate the property, till the disposal of
the suit, on the ground that it may create multiplicity of proceedings.
However, strangely the suit was filed only for permanent injunction
restraining the defendant in the suit, not to alienate or encumber the
property based on the alleged agreement.
8. As contended by the learned counsel for the petitioner /
defendant in paragraph No.4, at page No.3 of the plaint, the first
respondent / plaintiff has specifically stated that the value of sale
consideration fixed and agreed was Rs.4,40,00,000/- and also drew the
attention to Page No.7, schedule of property, which shows that the
property is situated in a posh locality, south by Eye Hospital, west by
Road, Ambattur Town, Thiruvallur District, measuring an extent of one
acre and two cents in S.No.2/3, Ambattur Taluk in the village stated
therein. The sale consideration is stated at Rs.4.4 crores in the plaint,
however, the suit was notionally valued at Rs.1,000/- and the relief
sought for is only for permanent injunction restraining the defendants not
to alienate the property. Without filing suit for specific performance of the
agreement, the suit cannot be filed for bare permanent injunction, based
on the agreement, without any bonafide reason.
6
9. The first respondent / plaintiff himself has stated that the sale
consideration was fixed, as per the agreement at Rs.4,40,00,000/-,
hence, he cannot simply file a suit seeking bare injunction, restraining the
petitioner from alienating or encumbering the property, by paying a
nominal court fee for the value of Rs.1,000/- and seek leave to file a
separate suit for specific performance at a later stage.
10. It is seen that under Order 2 Rule 2 CPC, omission to sue for
one or several reliefs would be construed as relinquishment of the
particular relief, unless leave is obtained from the court. However, no
party to the suit can reserve the main relief, on account of payment of
heavy court fee and file a suit for consequential relief, whereby reserving
the main relief, under Order 2 Rule 2 CPC.
11. In the instant case, the main relief, for which the first
respondent / plaintiff has sought leave is to file a suit, seeking specific
performance of contract, for which, as per his pleadings, he has to pay
court fee for the alleged sale consideration of Rs.4,40,00,00/-. Hence, he
cannot simply file a suit, seeking bare injunction against the owner of the
property not to alienate the property, stating the value of the claim,
notionally at Rs.1,000/- and pay court fee under Section 27 (c) of the Act.
7
12. It is well settled that an agreement holder is entitled to maintain
a suit, seeking specific performance of the contract, however, without
filing a proper suit, seeking specific performance of the contract, he
cannot file a suit, seeking bare injunction against the owner of the
property, not to alienate the property and reserve the main relief, to file a
suit for specific performance of the agreement and the first respondent /
plaintiff has not stated any acceptable reason, for seeking leave for filing
suit at the later stage, based on the alleged agreement.
13. Learned counsel appearing for the petitioner contended that the
MOU is a contract between the petitioner and the first respondent,
relating to immovable property and hence, the suit itself is not
maintainable for seeking bare permanent injunction. Per contra,
Mr.C.B.Muralikrishnan, learned counsel appearing for the first respondent
submitted that the suit is maintainable, in view of the MOU, dated
08.10.2012.
14. Learned counsel for the first respondent relied on the decision,
A.C.Subba Reddy v. Jawahar International Trading Corporation
Company, reported in 2008 (4) CTC 160, wherein it was decided by a
Division Bench of this Court, with reference to the scope of Clause 12 of
Letters Patent, regarding leave to sue. It was a suit for specific
performance of an agreement for sale filed, therein ancillary reliefs of
8
injunctions sought for viz., (a) permanent injunction regarding alienation /
encumbrance and (b) permanent injunction regarding interference with
possession. Learned Single Judge therein held that the Court has no
jurisdiction to try the suit, as it was a suit relating to land and the relief of
injunction regarding interference with possession being amounting to
control of the suit property rendering it a suit for land. On appeal, in view
of the appellant / plaintiff giving up relief of permanent injunction relating
to interference with possession and Court permitting deletion of the
prayer, the order of the learned single Judge was set aside. On a perusal
of the decision, it is clear that the said suit relating to the C.S.No.508 of
2006 had been filed, seeking the following reliefs :
"(a) directing the defendants 1 to 4 specifically
perform their part of the obligations of the
agreement for sale dated 05.03.2004 as merged
in supplemental agreement dated 25.02.2005 by
executing and registering sale deed or deeds in
respect of the suit property and register the
name on receipt of the balance sale
consideration of Rs.5.35 lakhs on a date to be
fixed by this Hon'ble Court and in default direct
the Court to execute and register the deed or
deeds of sale in respect of the plaint schedule
property in favour of the plaintiff at the expense
of the plaintiff on deposit of the balance sale
consideration payable by him to the credit of the
suit or in the alternative direct the refund of the
advance amount of Rs.5,35,000/- paid by the
9
plaintiff with interest at 24% per annum from
the date of payment till the date of realization;
(b) For a permanent injunction restraining the
defendants 1 to 6 or their men, agents, servants
or any person or claim through them or
authorized by them from interfering with the
peaceful possession and enjoyment of the
property, more fully described in the schedule
hereunder;
(c) For a permanent injunction restraining the
defendants 1 to 6 or any other person or
persons claiming through them from alienating
or encumbering dealing with the suit schedule
mentioned property either by way of sale,
mortgage, joint development lease or in any
other manner detrimental to the interest of the
plaintiff, except in accordance with law."
Division Bench of this Court has held that if we look at the prayers "a" and
"c" alone were clear that principally the suit could be for specific
performance of an agreement and even the ancillary relief of permanent
injunction was also for restraining defendants from alienating or dealing
with the suit property in any way. Hence prayers "a" and "c" are not for
title or possession and the injunction relief sought for also does not affect
the title or possession.
15. In the aforesaid decision, there was a prayer for specific
performance of an agreement for sale, apart from other consequential
10
reliefs, hence, the aforesaid decision is not applicable to the facts and
circumstances of this case, since the first respondent / plaintiff has not
filed the suit, seeking proper relief of specific performance of the contract,
based on the agreement or for the return of advance already paid, but
filed only a suit for bare injunction and seeking leave to file a suit for the
main relief, at a later stage.
16. In the present suit in O.S.No.329 of 2012, as Managing Director
of M/s. Inland Builders Pvt. Ltd., Chennai-40, has raised a cause of action,
stating that on 07.04.1944, the defendant's forefather purchased the
property, vide Doc.No.1241/44 and the agreement of sale in favour of the
plaintiff was executed at Chennai, after receiving the advance and part of
sale consideration of Rs.40,00,000/- at Chennai. Subsequently, though
the plaintiff was insisting the defendant to execute the sale deed, after
getting the balance of sale consideration, however, the plaintiff came to
understand that the defendants were negotiating with third parties to sell
the properties. Hence, the suit was filed, seeking permanent injunction
restraining the defendants, their men, agents etc, from alienating, selling
or in any manner disposing the suit property to any third party without
the knowledge and consent of the plaintiff.
17. In the plaint, the first respondent, as plaintiff has stated that
sale consideration was fixed at Rs.4,40,00,000/- and Rs.40,00,000/- was
11
paid as advance and part of sale consideration. However, without filing a
suit, seeking specific performance of the contract or for return of the
alleged advance amount, the suit was filed only seeking permanent
injunction restraining the defendants from selling or alienating the
property to any third party, stating a notional value at Rs.1,000/-. It
cannot be disputed that for filing a suit for specific performance, the
plaintiff could have paid proper Court fee for the value of Rs.4.4 crores. In
order to avoid, paying proper court fee, as per procedure known to law,
he filed a petition in I.A.No.711 of 2013, under Order 2 Rule 2 read with
Section 151 of the Code of Civil Procedures, seeking leave to file a
comprehensive suit of specific performance at later stage on the same
cause of action. The Court below, without deciding the same according to
law, on merits after providing opportunity to the defendant, has simply
passed an one word order, "Permitted" on 11.01.2013, which is contrary
to law.
18. In a suit for specific performance of agreement for sale, there
could be ancillary relief of interim injunction, not to alienate or encumber
the property, detrimental to the rights of the agreement holder till the
disposal of the suit. However, without seeking the main relief of specific
performance or seeking return of the advance amount and paying
necessary Court fee, according to law, the first respondent / plaintiff
would not be entitled to file a suit, seeking permanent injunction against
12
the proposed vendor, not to alienate or encumber the property and seek
leave to file a comprehensive suit at later stage, namely, suit for specific
performance. The Court below, has mechanically allowed the petition, by
one word order "Permitted", which shows only the non-application of
mind. As the first respondent / plaintiff has claimed right, based on an
agreement of sale, the main relief could be seeking specific performance
of agreement for sale and for which, he could have been ready and willing
to perform his part of the contract, by paying the balance of sale
consideration. However, it is seen that the suit has been filed by the first
respondent, seeking only permanent injunction restraining the owner of
the land, not to alienate or encumber the property. Hence, permitting the
first respondent / plaintiff to file a suit in the name of comprehensive suit
at a later stage should be construed only permitting the first respondent
to circumvent the law, by not filing proper suit, based on the alleged
agreement of sale.
19. Order 2 Rule 2 of the Code of Civil Procedure is crystal clear,
which reads as follows :
"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."
13
20. In Vigro Industries (Eng.) P.Ltd., v. Venturtech Solutions
P. Ltd., reported in 2012 (5) CTC 359, the Hon'ble Supreme Court has
held on the cardinal requirement for application of the provisions
contained in Order 2, Rule 2 (2) and (3) of the Code of Civil Procedure,
that the cause of action in the later suit must be the same as that of the
first suit. The principle embodied in Rule discourages / prohibits, vexing
the defendant again and again by multiple suits, except in a situation,
where one of the several reliefs, though available to a plaintiff, may not
have been claimed for a good reason. A later suit for such relief is
contemplated only with the leave of the Court which leave, naturally, will
be granted upon due satisfaction and for good and sufficient reasons.
21. In such circumstance, leave of court could be granted only upon
the due satisfaction and upon good and satisfactory reasons, as held by
the Hon'ble Supreme Court.
22. The Hon'ble Supreme Court in State Bank of India v. Gracure
Pharmaceuticals Ltd., reported in 2013 STPL (Web) 939 SC, the
Apex Court has held as follows :
"15... We find, as such, that respondent had
omitted certain reliefs which were available to it
at the time of filing of the first suit and after
having relinquished the same, it cannot file a
separate suit in view of the provisions of sub-rule
14
2 of Order 2 Rule 2 CPC. The object of Order 2
Rule 2 is to avoid multiplicity of proceedings and
not to vex the parties over and again in a
litigative process. The object enunciated in Order
2 Rule 2 CPC is laudable and it has a larger
public purpose to achieve by not burdening the
court with repeated suits."
23. It is well settled that Order 2 Rule 2 of the Code of Civil
Procedure relates to relinquishment of part of claim, hence, if 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.
24. In the instant case, admittedly the suit was filed, based on a
Memorandum of Understanding. In the xerox copy of the MOU available in
the typed set, date is not available, however, it is stated that the
unregistered Memorandum of Understanding was entered in the month of
October 2012, for selling the suit schedule property for Rs.4,40,00,000/-.
As per the Document, P.No.4, Sl.No.7, sale transaction shall be completed
within a period of 90 days from the date of Memorandum of
Understanding. However, in the suit, the first respondent / plaintiff has
not prayed any relief for specific performance of the agreement, but the
suit was filed only seeking permanent injunction restraining the petitioner
/ first defendant from selling or alienating the property to any third party.
15
He has notionally valued the suit for the relief of court fees at Rs.1,000/-
under Section 27 (c) of the Tamil Nadu Court Fee and Suits Valuation Act.
25. As per Order 2 Rule 2 CPC, plaintiffs cannot seek leave to file
the main suit later on, on account of the necessity of paying proper court
fee and simply file a suit for permanent injunction, not to alienate the
property. In the instant case, the first respondent / plaintiff, simply filed
the suit, stating the value of the suit claim for the relief of court fees at
Rs.1,000/- as per the Section 27 (c) of Tamil Nadu Court Fee and Suits
Valuation Act, though the value of the property is Rs.4.4 crores and filed
application seeking leave to file a comprehensive suit for specific
performance at later stage. Seeking leave for the main relief as per the
alleged cause of action is not legally sustainable, since relief of specific
performance of the agreement would be the main relief or proper relief in
the suit and interim injunction restraining the other party, not to alienate
would be an interim prayer, till the disposal of the suit.
26. It has been categorically held by the Hon'ble Supreme Court in
the decision reported in 2012 (5) CTC 359 (cited supra), that the cause
of action in the later suit must be the same as that in the first suit and the
rule engrafts on a laudable principle that discourages / prohibits vexing
the defendant again and again by filing multiple suits except in a situation
where one of the several reliefs, though available to a plaintiff, may not
16
have been claimed for a good reason for the plaintiff for not filing the suit,
seeking specific performance of the contract. Merely filing a suit, seeking
bare permanent injunction, not to alienate the property based on an
agreement for sale would not be legally maintainable, as it would show
that the plaintiff is interested in gaining time, without being ready and
willing to perform his part of the contract.
27. As the relief sought for in the suit is based on an alleged
agreement for sale, seeking leave for the main relief of filing suit for
specific performance, but filing only a suit for permanent injunction to
restrain the other party to the alleged agreement from alienating or
selling the property to any third party is not legally maintainable, as per
Order 2 Rule 2 of the Code of Civil Procedure. The Court below, without
considering the plea of the plaintiff and the defence raised by the
respondent, simply passed one word order, "Permitted", which is totally
erroneous, that shows only the non-application of the mind by the Court
below. When the main relief should be for seeking specific performance of
the agreement, as per the pleadings in the plaint, the said main relief
cannot be reserved by any party, in order to avoid payment of heavy
court fee and file a suit, seeking bare permanent injunction, not to
alienate or sell the property to any third party, would certainly be against
the laudable principle of preventing vexatious litigations again and again
against the defendant, as held by the Hon'ble Apex Court. Hence, this
17
Court is of the view that the impugned order has been passed by the
Court below against law and the same is liable to be set aside, to meet
the ends of justice.
28. In the result, this Civil Revision Petition is allowed and the
impugned order, dated 11.01.2013 made in I.A.No.711 of 2013 in
O.S.No.329 of 2013 on the file of the XVIII Assistant Judge, City Civil
Court, Chennai is set aside. No costs. Consequently, connected
miscellaneous petition is closed.
09-01-2015
Print Page
agreement for sale, seeking leave for the main relief of filing suit for
specific performance, but filing only a suit for permanent injunction to
restrain the other party to the alleged agreement from alienating or
selling the property to any third party is not legally maintainable, as per
Order 2 Rule 2 of the Code of Civil Procedure. The Court below, without
considering the plea of the plaintiff and the defence raised by the
respondent, simply passed one word order, "Permitted", which is totally
erroneous, that shows only the non-application of the mind by the Court
below. When the main relief should be for seeking specific performance of
the agreement, as per the pleadings in the plaint, the said main relief
cannot be reserved by any party, in order to avoid payment of heavy
court fee and file a suit, seeking bare permanent injunction, not to
alienate or sell the property to any third party, would certainly be against
the laudable principle of preventing vexatious litigations again and again
against the defendant, as held by the Hon'ble Apex Court. Hence, this
Court is of the view that the impugned order has been passed by the
Court below against law and the same is liable to be set aside, to meet
the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-01-2015
CORAM :
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
C.R.P (PD).No.2850 of 2013
and M.P.No.1 of 2013
R.Chendilvel vs G.Damodaran
Citation;AIR 2015 Madras 96
The Civil Revision Petition has been filed under Article 227 of the
Constitution of India, challenging the order, dated 11.01.2013 made in
I.A.No.711 of 2013 in O.S.No.329 of 2013 on the file of the XVIII
Assistant Judge, City Civil Court, Chennai.
2
2. The petitioner herein is the first defendant in the suit, that was
filed by the first respondent / plaintiff against the petitioner and
respondents 2 and 3, seeking permanent injunction restraining the
petitioner and the respondents 2 and 3 from alienating or encumbering
the suit property to any third party.
3. The Interlocutory Application in I.A.No.711 of 2013 was filed by
the first respondent against the petitioner and the respondents 2 and 3
herein under Order 2 Rule 2 r/w Section 151 of the Code of Civil
Procedure, seeking leave to file a comprehensive suit for seeking specific
performance on later stage on the same cause of action. The first
respondent, as plaintiff, has stated in the plaint that the cause of action
for the suit arose within the territorial jurisdiction of the City Civil Court,
Chennai on 07.04.1944 when the first defendant's forefather purchased
the property, vide Doc.No.1241/44 and the agreement of sale in favour
of the plaintiff was entered into at Chennai, after receiving the advance
sale consideration of Rs.40,00,000/- in chennai at the office of the plaintiff
and when signed the agreement by the plaintiff and defendant. In the
cause of action paragraph, the first respondent / plaintiff has not stated
the date of the agreement for sale. However, in the list of document filed
under Order 7 rule 14 (1) & 2 CPC, the first respondent / plaintiff has
stated Document No.1, agreement between the plaintiff and the
defendant, dated 08.10.2012 and also Memorandum of Understanding,
3
dated 02.08.2012. The xerox copy of the memorandum of understanding
filed in the typed set of papers would show that it is only an unregistered
agreement between the plaintiff and the other party.
4. As per the impugned order, dated 11.01.2013, the Court below
has allowed the petition, whereby granted leave to the first respondent /
plaintiff to file a comprehensive suit for specific performance on a later
stage, aggrieved by which, this Revision has been preferred by the
petitioner / defendant.
5. Mr.K.Gopalakrishnan, learned counsel appearing for the petitioner
submitted that the order passed by the Court below is against law,
whereby the Court below granted leave for the first respondent / plaintiff,
to file a separate suit for the main relief of specific performance of
contract. It was further argued by the learned counsel for the petitioner
that the first respondent / plaintiff could have filed a proper suit for
specific performance and paid Court fee for the value of the agreement
stated therein and also drew the attention of this Court to the
unregistered Memorandum of Understanding (MOU), which reads in
paragraph number 3 as follows :
"The party of the second part agree to purchase
the property for a total sale consideration of
Rs.4,40,00,000/- (Rupees four crores forty lakhs
only) and the party of the first part agreed for
the same."
4
It is seen that the proposed vendor, as per the MOU has been stated as
party of the first part and the proposed purchaser, D.Damodharan / first
respondent herein is stated as party of the second part.
6. As per the prayer, in the Interlocutory Application, the first
respondent / plaintiff has sought leave to file a suit for specific
performance of the agreement. As stated in the MOU, the sale
consideration, as per the agreement is Rs.4,40,00,000/-. Without filing a
suit, seeking specific performance of agreement, by making payment of
proper court fee for the said value of the agreement, the first respondent
/ plaintiff had simply filed a suit, seeking bare permanent injunction
restraining the petitioner / first defendant and defendants 2 and 3 from
alienating or encumbering the property, for which he valued the property
only at Rs.1,000/- under Section 27 (c) of Tamil Nadu Court Fees and
Suits Valuation Act.
7. As contended by Mr.K.Gopalakrishnan, learned counsel appearing
for the petitioner / D1, the main relief sought for should be for specific
performance of contract and the consideration fixed by the parties for the
value of the property is Rs.4,40,00,000/-. On the aforesaid
circumstances, the first respondent / plaintiff cannot file a suit, merely for
bare injunction restraining the owner of the property, not to alienate or
encumber the property, stating the value of the suit at Rs.1,000/-. Had
5
the suit been filed seeking specific performance of the contract,
consequential prayer could have been for injunction restraining the
petitioner / first defendant, not to alienate the property, till the disposal of
the suit, on the ground that it may create multiplicity of proceedings.
However, strangely the suit was filed only for permanent injunction
restraining the defendant in the suit, not to alienate or encumber the
property based on the alleged agreement.
8. As contended by the learned counsel for the petitioner /
defendant in paragraph No.4, at page No.3 of the plaint, the first
respondent / plaintiff has specifically stated that the value of sale
consideration fixed and agreed was Rs.4,40,00,000/- and also drew the
attention to Page No.7, schedule of property, which shows that the
property is situated in a posh locality, south by Eye Hospital, west by
Road, Ambattur Town, Thiruvallur District, measuring an extent of one
acre and two cents in S.No.2/3, Ambattur Taluk in the village stated
therein. The sale consideration is stated at Rs.4.4 crores in the plaint,
however, the suit was notionally valued at Rs.1,000/- and the relief
sought for is only for permanent injunction restraining the defendants not
to alienate the property. Without filing suit for specific performance of the
agreement, the suit cannot be filed for bare permanent injunction, based
on the agreement, without any bonafide reason.
6
9. The first respondent / plaintiff himself has stated that the sale
consideration was fixed, as per the agreement at Rs.4,40,00,000/-,
hence, he cannot simply file a suit seeking bare injunction, restraining the
petitioner from alienating or encumbering the property, by paying a
nominal court fee for the value of Rs.1,000/- and seek leave to file a
separate suit for specific performance at a later stage.
10. It is seen that under Order 2 Rule 2 CPC, omission to sue for
one or several reliefs would be construed as relinquishment of the
particular relief, unless leave is obtained from the court. However, no
party to the suit can reserve the main relief, on account of payment of
heavy court fee and file a suit for consequential relief, whereby reserving
the main relief, under Order 2 Rule 2 CPC.
11. In the instant case, the main relief, for which the first
respondent / plaintiff has sought leave is to file a suit, seeking specific
performance of contract, for which, as per his pleadings, he has to pay
court fee for the alleged sale consideration of Rs.4,40,00,00/-. Hence, he
cannot simply file a suit, seeking bare injunction against the owner of the
property not to alienate the property, stating the value of the claim,
notionally at Rs.1,000/- and pay court fee under Section 27 (c) of the Act.
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12. It is well settled that an agreement holder is entitled to maintain
a suit, seeking specific performance of the contract, however, without
filing a proper suit, seeking specific performance of the contract, he
cannot file a suit, seeking bare injunction against the owner of the
property, not to alienate the property and reserve the main relief, to file a
suit for specific performance of the agreement and the first respondent /
plaintiff has not stated any acceptable reason, for seeking leave for filing
suit at the later stage, based on the alleged agreement.
13. Learned counsel appearing for the petitioner contended that the
MOU is a contract between the petitioner and the first respondent,
relating to immovable property and hence, the suit itself is not
maintainable for seeking bare permanent injunction. Per contra,
Mr.C.B.Muralikrishnan, learned counsel appearing for the first respondent
submitted that the suit is maintainable, in view of the MOU, dated
08.10.2012.
14. Learned counsel for the first respondent relied on the decision,
A.C.Subba Reddy v. Jawahar International Trading Corporation
Company, reported in 2008 (4) CTC 160, wherein it was decided by a
Division Bench of this Court, with reference to the scope of Clause 12 of
Letters Patent, regarding leave to sue. It was a suit for specific
performance of an agreement for sale filed, therein ancillary reliefs of
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injunctions sought for viz., (a) permanent injunction regarding alienation /
encumbrance and (b) permanent injunction regarding interference with
possession. Learned Single Judge therein held that the Court has no
jurisdiction to try the suit, as it was a suit relating to land and the relief of
injunction regarding interference with possession being amounting to
control of the suit property rendering it a suit for land. On appeal, in view
of the appellant / plaintiff giving up relief of permanent injunction relating
to interference with possession and Court permitting deletion of the
prayer, the order of the learned single Judge was set aside. On a perusal
of the decision, it is clear that the said suit relating to the C.S.No.508 of
2006 had been filed, seeking the following reliefs :
"(a) directing the defendants 1 to 4 specifically
perform their part of the obligations of the
agreement for sale dated 05.03.2004 as merged
in supplemental agreement dated 25.02.2005 by
executing and registering sale deed or deeds in
respect of the suit property and register the
name on receipt of the balance sale
consideration of Rs.5.35 lakhs on a date to be
fixed by this Hon'ble Court and in default direct
the Court to execute and register the deed or
deeds of sale in respect of the plaint schedule
property in favour of the plaintiff at the expense
of the plaintiff on deposit of the balance sale
consideration payable by him to the credit of the
suit or in the alternative direct the refund of the
advance amount of Rs.5,35,000/- paid by the
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plaintiff with interest at 24% per annum from
the date of payment till the date of realization;
(b) For a permanent injunction restraining the
defendants 1 to 6 or their men, agents, servants
or any person or claim through them or
authorized by them from interfering with the
peaceful possession and enjoyment of the
property, more fully described in the schedule
hereunder;
(c) For a permanent injunction restraining the
defendants 1 to 6 or any other person or
persons claiming through them from alienating
or encumbering dealing with the suit schedule
mentioned property either by way of sale,
mortgage, joint development lease or in any
other manner detrimental to the interest of the
plaintiff, except in accordance with law."
Division Bench of this Court has held that if we look at the prayers "a" and
"c" alone were clear that principally the suit could be for specific
performance of an agreement and even the ancillary relief of permanent
injunction was also for restraining defendants from alienating or dealing
with the suit property in any way. Hence prayers "a" and "c" are not for
title or possession and the injunction relief sought for also does not affect
the title or possession.
15. In the aforesaid decision, there was a prayer for specific
performance of an agreement for sale, apart from other consequential
10
reliefs, hence, the aforesaid decision is not applicable to the facts and
circumstances of this case, since the first respondent / plaintiff has not
filed the suit, seeking proper relief of specific performance of the contract,
based on the agreement or for the return of advance already paid, but
filed only a suit for bare injunction and seeking leave to file a suit for the
main relief, at a later stage.
16. In the present suit in O.S.No.329 of 2012, as Managing Director
of M/s. Inland Builders Pvt. Ltd., Chennai-40, has raised a cause of action,
stating that on 07.04.1944, the defendant's forefather purchased the
property, vide Doc.No.1241/44 and the agreement of sale in favour of the
plaintiff was executed at Chennai, after receiving the advance and part of
sale consideration of Rs.40,00,000/- at Chennai. Subsequently, though
the plaintiff was insisting the defendant to execute the sale deed, after
getting the balance of sale consideration, however, the plaintiff came to
understand that the defendants were negotiating with third parties to sell
the properties. Hence, the suit was filed, seeking permanent injunction
restraining the defendants, their men, agents etc, from alienating, selling
or in any manner disposing the suit property to any third party without
the knowledge and consent of the plaintiff.
17. In the plaint, the first respondent, as plaintiff has stated that
sale consideration was fixed at Rs.4,40,00,000/- and Rs.40,00,000/- was
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paid as advance and part of sale consideration. However, without filing a
suit, seeking specific performance of the contract or for return of the
alleged advance amount, the suit was filed only seeking permanent
injunction restraining the defendants from selling or alienating the
property to any third party, stating a notional value at Rs.1,000/-. It
cannot be disputed that for filing a suit for specific performance, the
plaintiff could have paid proper Court fee for the value of Rs.4.4 crores. In
order to avoid, paying proper court fee, as per procedure known to law,
he filed a petition in I.A.No.711 of 2013, under Order 2 Rule 2 read with
Section 151 of the Code of Civil Procedures, seeking leave to file a
comprehensive suit of specific performance at later stage on the same
cause of action. The Court below, without deciding the same according to
law, on merits after providing opportunity to the defendant, has simply
passed an one word order, "Permitted" on 11.01.2013, which is contrary
to law.
18. In a suit for specific performance of agreement for sale, there
could be ancillary relief of interim injunction, not to alienate or encumber
the property, detrimental to the rights of the agreement holder till the
disposal of the suit. However, without seeking the main relief of specific
performance or seeking return of the advance amount and paying
necessary Court fee, according to law, the first respondent / plaintiff
would not be entitled to file a suit, seeking permanent injunction against
12
the proposed vendor, not to alienate or encumber the property and seek
leave to file a comprehensive suit at later stage, namely, suit for specific
performance. The Court below, has mechanically allowed the petition, by
one word order "Permitted", which shows only the non-application of
mind. As the first respondent / plaintiff has claimed right, based on an
agreement of sale, the main relief could be seeking specific performance
of agreement for sale and for which, he could have been ready and willing
to perform his part of the contract, by paying the balance of sale
consideration. However, it is seen that the suit has been filed by the first
respondent, seeking only permanent injunction restraining the owner of
the land, not to alienate or encumber the property. Hence, permitting the
first respondent / plaintiff to file a suit in the name of comprehensive suit
at a later stage should be construed only permitting the first respondent
to circumvent the law, by not filing proper suit, based on the alleged
agreement of sale.
19. Order 2 Rule 2 of the Code of Civil Procedure is crystal clear,
which reads as follows :
"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."
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20. In Vigro Industries (Eng.) P.Ltd., v. Venturtech Solutions
P. Ltd., reported in 2012 (5) CTC 359, the Hon'ble Supreme Court has
held on the cardinal requirement for application of the provisions
contained in Order 2, Rule 2 (2) and (3) of the Code of Civil Procedure,
that the cause of action in the later suit must be the same as that of the
first suit. The principle embodied in Rule discourages / prohibits, vexing
the defendant again and again by multiple suits, except in a situation,
where one of the several reliefs, though available to a plaintiff, may not
have been claimed for a good reason. A later suit for such relief is
contemplated only with the leave of the Court which leave, naturally, will
be granted upon due satisfaction and for good and sufficient reasons.
21. In such circumstance, leave of court could be granted only upon
the due satisfaction and upon good and satisfactory reasons, as held by
the Hon'ble Supreme Court.
22. The Hon'ble Supreme Court in State Bank of India v. Gracure
Pharmaceuticals Ltd., reported in 2013 STPL (Web) 939 SC, the
Apex Court has held as follows :
"15... We find, as such, that respondent had
omitted certain reliefs which were available to it
at the time of filing of the first suit and after
having relinquished the same, it cannot file a
separate suit in view of the provisions of sub-rule
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2 of Order 2 Rule 2 CPC. The object of Order 2
Rule 2 is to avoid multiplicity of proceedings and
not to vex the parties over and again in a
litigative process. The object enunciated in Order
2 Rule 2 CPC is laudable and it has a larger
public purpose to achieve by not burdening the
court with repeated suits."
23. It is well settled that Order 2 Rule 2 of the Code of Civil
Procedure relates to relinquishment of part of claim, hence, if 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.
24. In the instant case, admittedly the suit was filed, based on a
Memorandum of Understanding. In the xerox copy of the MOU available in
the typed set, date is not available, however, it is stated that the
unregistered Memorandum of Understanding was entered in the month of
October 2012, for selling the suit schedule property for Rs.4,40,00,000/-.
As per the Document, P.No.4, Sl.No.7, sale transaction shall be completed
within a period of 90 days from the date of Memorandum of
Understanding. However, in the suit, the first respondent / plaintiff has
not prayed any relief for specific performance of the agreement, but the
suit was filed only seeking permanent injunction restraining the petitioner
/ first defendant from selling or alienating the property to any third party.
15
He has notionally valued the suit for the relief of court fees at Rs.1,000/-
under Section 27 (c) of the Tamil Nadu Court Fee and Suits Valuation Act.
25. As per Order 2 Rule 2 CPC, plaintiffs cannot seek leave to file
the main suit later on, on account of the necessity of paying proper court
fee and simply file a suit for permanent injunction, not to alienate the
property. In the instant case, the first respondent / plaintiff, simply filed
the suit, stating the value of the suit claim for the relief of court fees at
Rs.1,000/- as per the Section 27 (c) of Tamil Nadu Court Fee and Suits
Valuation Act, though the value of the property is Rs.4.4 crores and filed
application seeking leave to file a comprehensive suit for specific
performance at later stage. Seeking leave for the main relief as per the
alleged cause of action is not legally sustainable, since relief of specific
performance of the agreement would be the main relief or proper relief in
the suit and interim injunction restraining the other party, not to alienate
would be an interim prayer, till the disposal of the suit.
26. It has been categorically held by the Hon'ble Supreme Court in
the decision reported in 2012 (5) CTC 359 (cited supra), that the cause
of action in the later suit must be the same as that in the first suit and the
rule engrafts on a laudable principle that discourages / prohibits vexing
the defendant again and again by filing multiple suits except in a situation
where one of the several reliefs, though available to a plaintiff, may not
16
have been claimed for a good reason for the plaintiff for not filing the suit,
seeking specific performance of the contract. Merely filing a suit, seeking
bare permanent injunction, not to alienate the property based on an
agreement for sale would not be legally maintainable, as it would show
that the plaintiff is interested in gaining time, without being ready and
willing to perform his part of the contract.
27. As the relief sought for in the suit is based on an alleged
agreement for sale, seeking leave for the main relief of filing suit for
specific performance, but filing only a suit for permanent injunction to
restrain the other party to the alleged agreement from alienating or
selling the property to any third party is not legally maintainable, as per
Order 2 Rule 2 of the Code of Civil Procedure. The Court below, without
considering the plea of the plaintiff and the defence raised by the
respondent, simply passed one word order, "Permitted", which is totally
erroneous, that shows only the non-application of the mind by the Court
below. When the main relief should be for seeking specific performance of
the agreement, as per the pleadings in the plaint, the said main relief
cannot be reserved by any party, in order to avoid payment of heavy
court fee and file a suit, seeking bare permanent injunction, not to
alienate or sell the property to any third party, would certainly be against
the laudable principle of preventing vexatious litigations again and again
against the defendant, as held by the Hon'ble Apex Court. Hence, this
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Court is of the view that the impugned order has been passed by the
Court below against law and the same is liable to be set aside, to meet
the ends of justice.
28. In the result, this Civil Revision Petition is allowed and the
impugned order, dated 11.01.2013 made in I.A.No.711 of 2013 in
O.S.No.329 of 2013 on the file of the XVIII Assistant Judge, City Civil
Court, Chennai is set aside. No costs. Consequently, connected
miscellaneous petition is closed.
09-01-2015
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