SUCHA SINGH SODHI (D) THR. LRS. versus BALDEV RAJ WALIA & ANR.

[2018] 3 S.C.R.

SUCHA SINGH SODHI (D) THR. LRS.

BALDEV RAJ WALIA & ANR.

(Civil Appeal No. 3777 of 2018)

APRIL 13, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Civil Procedure, 1908: O.II, r.2 – Suit to include thewhole claim – On facts, first suit seeking injunction by originalplaintiff against respondent no 1 withdrawn with the leave of theCcourt – Later suit for specific performance filed by the originalplaintiff – Respondent objected to the same, invoking O.II, r.2 thatrelief of specific performance ought to have been claimed alongwith relief of injunction in earlier suit which was withdrawn – Boththe trial court and High Court dismissed the suit as being barred u/DO.II, r. 2 – On appeal, held: Trial court and the High Court erred inallowing the application filed by respondent No.2 u/O.VII, r. 11and thereby erred in dismissing the suit as being barred by theprovisions of O.II, r. 2 – Provisions of O.II, r. 2 not attracted to thefacts of the instant case and, thus, the suit should not have beendismissed as being barred u/O.II, r. 2 – Plaintiff could not claim theErelief of specific performance of agreement against the respondentsalong with the relief of permanent injunction in the previous suit –Further, the court was entitled to take into consideration thestatement made by the original plaintiff for withdrawing the suitand filing it afresh and his statement could be made part of theForder for granting permission to withdraw the civil suit and file afresh suit – Thus, the order passed by the High Court set aside.

Allowing the appeal, the Court

HELD: 1.1 The trial court and the High Court erred inallowing the application filed by respondent No.2 under Order 7GRule 11 of the Code of Civil Procedure, 1908 and thereby erredin dismissing the suit as being barred by the provisions of Order2 Rule 2 by taking recourse to the provisions of Order 7 Rule 11of the Code. The provisions of Order 2 Rule 2 of the Code arenot attracted to the facts of the case and, therefore, civil suit

should not have been dismissed as being barred under Order 2Rule 2 of the Code. [Para 22] [331-C-D]

1.2 Order 2 Rule 2(1) of the Code provides that every suitshall include the whole of the claim, which the plaintiff is entitledto make in respect of the cause of action. Liberty is, however,granted to the plaintiff to relinquish any portion of his claim witha view to bring the suit within the jurisdiction of any Court. It isclear from the reading of Order 2 Rule (1) of the Code thatwhenever the plaintiff files suit on the basis of cause of actionpleaded in the plaint, he is under legal obligation to include andclaim all the reliefs against the defendant, which have accrued tohim on the cause of action pleaded by him in his plaint. Order 2Rule 2(1) of the Code enables the plaintiff to relinquish any portionof his relief with view to bring the suit within the jurisdiction ofany Court. Order 2 Rule 2(2) of the Code, however, providesthat where plaintiff omits to sue or intentionally relinquishes,any portion of his claim/relief in his suit, then in such event, heshall not be allowed afterwards to sue in respect of the claim/relief so omitted or/and relinquished by him in his suit. In otherwords Rule 2(2) does not permit the plaintiff to file second suit toclaim the omitted or/and relinquished relief. [Paras 24-26] [331-F-H; 332-A-C]

1.3 The sine qua non for invoking Order 2 Rule 2(2) againstthe plaintiff by the defendant is that the relief which the plaintiffhas claimed in the second suit was also available to the plaintifffor being claimed in the previous suit on the causes of actionpleaded in the previous suit against the defendant and yet notclaimed by the plaintiff. [Para 28] [332-D]

1.4 The original plaintiff could claim the relief of specificperformance of agreement against the respondents/defendantsin addition to his claim of permanent injunction in the previouslyinstituted suit. The plaintiff could not claim the relief of specificperformance of agreement against the defendants along with therelief of permanent injunction in the previous suit for the followingreasons. First, the cause of action to claim relief of permanentinjunction and the cause of action to claim relief of specificperformance of agreement are independent and one cannot includethe other and vice versa. In other words, plaintiff cannot claim

Arelief of specific performance of agreement against the defendanton cause of action on which he has claimed relief of permanentinjunction. Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering inplaintiff’s possession over the suit premises accrues whendefendant No.1 threatens the plaintiff to dispossess him from theBsuit premises or otherwise cause injury to the plaintiff in relationto the suit premises. It is governed by Order 39 Rule 1 (c) of theCode which deals with the grant of injunction. The limitation tofile such suit is three years from the date of obstruction causedby the defendant to the plaintiff. On the other hand, the cause ofCaction to file suit for claiming specific performance of agreementarises from the date fixed for the performance or when no suchdate is fixed, when the plaintiff has noticed that performance isrefused by the defendant. The limitation to file such suit is threeyears from such date. Third, when both the reliefs/claims namely,Permanent Injunction and Specific Performance of AgreementDare not identical, when the causes of action to sue are separate,when the factual ingredients necessary to constitute therespective causes of action for both the reliefs/claims are differentand lastly, when both the reliefs/claims are governed by separatearticles of the Limitation Act, then, it is not possible to claimEboth the reliefs together on one cause of action. The suit filed bythe original plaintiff for specific performance of agreement againstthe respondents (defendants) is not barred by Order 2 Rule 2and is held maintainable for being tried on merits. [Para 29-35,37] [332-F-H; 333-A-E, H]

F1.5 Reading of the statement of the original plaintiff that hewants to withdraw the suit because he wants to file appropriateproceedings before the competent forum in relation to the subjectmatter of the suit coupled with the permission granted by thecourt to withdraw the suit satisfies the requirement of Order 23

Rule 1 (3) of CPC. It certainly enabled the plaintiff to file freshGsuit, namely, the civil suit for claiming specific performance ofthe agreement against the defendants. The court was entitled totake into consideration the statement made by the original plaintifffor withdrawing the suit and filing it afresh and his statement couldbe made part of the order for granting permission to withdrawHthe civil suit and file fresh suit. [Para 43] [335-D-E]

1.6 The reasoning and the conclusion arrived at by the trial courtand the High Court which wrongly allowed the application filedby respondent No.2 (defendant No.2) under Order 7 Rule 11 CPCis concurred with and in consequence, the appellants’ (plaintiffs’)suit is dismissed as being barred by the provisions of Order 2Rule 2 CPC. The impugned judgment is set aside. The applicationfiled by respondent No.2 under Order 7 Rule 11 CPC is dismissed.The civil suit filed by the appellants against the respondents isheld maintainable and is restored to its original file for being triedon merits. [Paras 46-48] [335-H; 336-A-C]

Rathnavathi & Another v. Kavita Ganashamdas (2015)5 SCC 223; Gurinderpal v. Jagmittar Singh (2004) 11SCC 219 – relied on.

Case Law Reference

(2015) 5 SCC 223relied onPara 37(2004) 11 SCC 219relied onPara 42

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3777of 2018.

From the Judgment and Order dated 18.02.2013 of the High Courtof Delhi at New Delhi in RFA No. 353 of 2012.

Bhim Sain Jain, Ms. Prerna Mehta, Advs. for the Appellants.

Jayant Bhushan, Sr. Adv., Ms. V. S. Lakshmi, A. VenayagamBalan, Pramod Dayal, Nikunj Dayal, Ms. Payal Dayal, Advs. for theRespondents.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal arises from the final judgment and order dated18.02.2014 passed by the High Court of Delhi at New Delhi in RFANo.353 of 2012 whereby the Single Judge of the High Court dismissedthe appeal filed by the appellants herein and upheld the judgment andorder dated 08.05.2012 passed by the Additional District Judge, Tis HazariCourts, Delhi in Suit No.135 of 2008 by which the suit of the appellantswas dismissed by taking recourse to the powers under Order VII Rule11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “theCode”).

A3. In order to appreciate the short legal issue involved in the appeal,few relevant facts, which lie in narrow compass, need to be mentionedhereinbelow.

4. Appellants are the plaintiffs whereas the respondents are thedefendants in the civil suit out of which this appeal arises.B

5. On 11.10.1996, Sucha Singh(original plaintiff) since dead andnow being represented by his legal representatives (appellant Nos.1 to 4herein) filed suit being Civil Suit No.705/1996 against respondent No.1in the Court of Senior Civil Judge, Delhi. The suit was filed only forgrant of permanent injunction.C that

6. The plaint was founded on the allegations, inter alia, thatrespondent No.1 was the owner of the house, i.e., basement and half ofthe first floor of the premises in plot No.1, Gali No.9 situated at SanwarNagar Post Office Raipur Khurd, New Delhi, as detailed in the plaint(Annexure-P-2) (hereinafter referred to as “the suit premises”).DRespondent No.1, on 27.02.1996, agreed to sell the suit premises toSucha Singh (Plaintiff) for Rs.11,50,000/- and out of the total amount,Sucha Singh paid sum of Rs.2,00,000/- by way of advance torespondent No.1 by cheque.

7. It was further averred that Sucha Singh was placed inEpossession of the suit premises in February, 1996. It was alleged that inMay, 1996 respondent No.1 demanded more money from Sucha Singhpursuant to which Sucha Singh further paid Rs.36,000/- in cash torespondent No.1.

8. It was alleged that on 10.10.1996, respondent No.1 threatenedto dispossess Sucha Singh from the suit premises and made unsuccessfulFattempt to dispossess him with the help of henchmen (Para 13 of theplaint).

9. It is on this cause of action, Sucha Singh filed civil suit forpermanent injunction on 11.10.1996 against respondent No.1 in relationto the suit premises restraining him from interfering with his possessionGover the suit premises.

10. Respondent No.1 filed the written statement, inter alia, allegingtherein that he has already transferred the suit premises to respondentNo.2 herein and, therefore, the remedy of plaintiff-Sucha Singh, if any,would be to file civil suit for specific performance of the agreementH

against respondent No.1 but not in prosecuting the suit for permanentinjunction.

11. On 27.11.1998, Sucha Singh (plaintiff) made statement inthe Court that he wants to withdraw the civil suit. He also made astatement that he is withdrawing the civil suit with view to fileproceedings before the competent forum to claim appropriate reliefagainst respondent No.1.

12. The Trial Court, on 27.11.1998, allowed the original plaintiff(Sucha Singh) to withdraw the civil suit and passed the following order:

“It is submitted by the counsel for plaintiff that he wants towithdraw the suit from this court to be filed before theappropriate forum. Counsel for defendant has no objectionfor withdrawal of the suit by the plaintiff, however askingfor cost incurred. Statements of both the parties have beenrecorded separately. Parties shall be bound by theirstatements as their undertakings in the court.

I have perused the records of the file and statements ofboth the parties. The plaintiff is allowed to withdraw thesuit subject to cost of Rs.500/- to be paid to the defendant.Cost paid in the court. After completion file be consignedto Record Room.”

(ARCHANA SINHA)

CIVIL JUDGE, DELHI.

27.11.1998. ”

13. On 25.02.1999, Sucha Singh, filed civil suit No.54 of 1999(Re-numbered as Suit No.135 of 2008) in the Court of Additional DistrictJudge, Tis Hazari Courts, Delhi against respondent No.1 for specificperformance of the agreement dated 27.02.1996. In Para 13, the plaintiffstated the facts for constituting the accrual of cause of action for filingthe suit for specific performance of the agreement.

14. Respondent No.2 i.e. the alleged subsequent purchaser filedan application under Order 1 Rule 10 of the Code to become party(defendant) in the suit. The application was allowed and respondentNo.2 was arrayed as defendant No. 2.

15. Both the respondents (defendants No.1 and 2) filed their writtenstatement and denied the plaintiff’s claim on various grounds on facts

Aand in law. Respondent No.2 also filed an application under Order 7Rule 11 of the Code for rejection of the plaint.

16. It was, inter alia, alleged that the suit in question (specificperformance of agreement) is hit by the provisions of Order 2 Rule 2 ofthe Code because the relief of specific performance, which is claimed inBthe present suit could be and ought to have been claimed by theplaintiff - Sucha Singh in the previously instituted suit which he had filedfor permanent injunction. It was contended that non-claiming of reliefof specific performance of the agreement in the previously institutedsuit though available to the plaintiff for being claimed on the cause ofaction pleaded in the previous suit would attract the bar contained inCOrder 2 Rule 2 of the Code to the subsequently instituted civil suit whereina relief of specific performance of agreement is claimed and, therefore,such suit cannot be now tried on merits.17. During the pendency of the suit, Sucha Singh died on 04.08.2000and his legal representatives (appellants herein) were brought on recordDas plaintiffs to continue the lis. The appellants (plaintiffs) opposed theapplication filed by defendant No.2 (respondent No.2 herein) andcontended that the suit for specific performance of agreement ismaintainable and not barred by Order 2 Rule 2 of the Code.

18. The Trial Court, however, by order dated 08.05.2012 allowedErespondent No.2’s application and, in consequence, dismissed theappellants’ suit holding that it is barred by the provisions of Order 2 Rule2 of the Code. In other words, the Trial Court held that the plaintiffsought to have claimed the relief of specific performance of the agreementin the previous suit, which was filed by Sucha Singh (original plaintiff)Ffor permanent injunction because according to the Trial Court such reliefwas available for being claimed when the first suit was filed.

19. The plaintiffs felt aggrieved and filed appeal before the HighCourt of Delhi. By impugned judgment, the High Court while concurringwith the reasoning and the conclusion of the Trial Court dismissed theGappeal. Against the said judgment, the plaintiffs felt aggrieved and havefiled the present appeal by way of special leave in this Court.

20. Heard Mr. Bhim Sain Jain, learned counsel for the appellants,Mr. Jayant Bhushan, learned senior counsel for respondent No.1 andMr. Pramod Dayal, learned counsel for respondent No.2.

21. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whilesetting aside the judgment and order of the High Court and the TrialCourt, dismiss the application filed by respondent No.2 (defendant No.2) under Order 7 Rule 11 of CPC and restore the civil suit No.54 of 1999(re-numbered as Suit No.135/2008) filed by the appellants herein againstthe respondents out of which this appeal arises for being tried on meritsin accordance with law.

22. In our considered opinion, the Trial Court and the High Courterred in allowing the application filed by respondent No.2 under Order 7Rule 11 of the Code and thereby erred in dismissing the suit as beingbarred by the provisions of Order 2 Rule 2 of the Code by taking recourseto the provisions of Order 7 Rule 11 of the Code. In our opinion, theprovisions of Order 2 Rule 2 of the Code are not attracted to the facts ofthis case and, therefore, civil suit should not have been dismissed asbeing barred under Order 2 Rule 2 of the Code.

23. Order 2 Rule 2 of the Code reads as under:

“2. Suit to include the whole claim – (1) Every suit shallinclude the whole of the claim which the plaintiff is entitledto make in respect of the cause of action, but plaintiff mayrelinquish any portion of his claim in order to bring the suitwithin the jurisdiction of any Court.

(2) Relinquishment of part of claim – Where plaintiff omitsto sue in respect of, or intentionally relinquishes, anyportion of his claim, he shall not afterwards sue in respectof the portion so omitted or relinquished.”

24. Order 2 Rule 2(1) of the Code provides that every suit shallinclude the whole of the claim, which the plaintiff is entitled to make inrespect of the cause of action. Liberty is, however, granted to the plaintiffto relinquish any portion of his claim with view to bring the suit withinthe jurisdiction of any Court.

25. It is clear from the reading of Order 2 Rule (1) of the Codethat whenever the plaintiff files suit on the basis of cause of actionpleaded in the plaint, he is under legal obligation to include and claim allthe reliefs against the defendant, which have accrued to him on thecause of action pleaded by him in his plaint. In other words, if on the

Abasis of cause of action pleaded by the plaintiff in the plaint, he is entitledto claim two reliefs, namely, “A” and “B” against the defendant(s), thenhe is under an obligation to claim both “A” and “B” reliefs together inthe suit. Order 2 Rule 2(1) of the Code enables the plaintiff to relinquishany portion of his relief with view to bring the suit within the jurisdictionof any Court.B

26. Order 2 Rule 2(2) of the Code, however, provides that wherea plaintiff omits to sue or intentionally relinquishes, any portion of hisclaim/relief in his suit, then in such event, he shall not be allowedafterwards to sue in respect of the claim/relief so omitted or/andrelinquished by him in his suit. In other words Rule 2(2) does not permitCthe plaintiff to file second suit to claim the omitted or/and relinquished

relief.

27. In our opinion, the sine qua non for invoking Order 2 Rule2(2) against the plaintiff by the defendant is that the relief which theplaintiff has claimed in the second suit was also available to the plaintiffDfor being claimed in the previous suit on the causes of action pleaded inthe previous suit against the defendant and yet not claimed by the plaintiff.

28. Therefore, we have to examine the question as to whetherthe plaintiff was entitled to claim relief of specific performance ofagreement in the previous suit on the basis of cause of action pleaded byEthe plaintiff in the previous suit against the respondents/defendants inrelation to suit property.

29. In other words, the question that arises for consideration iswhether Sucha Singh (original plaintiff) could claim the relief of specificperformance of agreement against the respondents/defendants in additionFto his claim of permanent injunction in the previously instituted suit?

30. Our answer to the aforementioned question is in favour of theplaintiffs (appellants) and against the defendants(respondents). In otherwords, our answer to the aforementioned question is that the plaintiffcould not claim the relief of specific performance of agreement againstGthe defendants along with the relief of permanent injunction in the previoussuit for the following reasons.

31. First, the cause of action to claim relief of permanent injunctionand the cause of action to claim relief of specific performance ofagreement are independent and one cannot include the other and viceHversa.

32. In other words, plaintiff cannot claim relief of specificperformance of agreement against the defendant on cause of actionon which he has claimed relief of permanent injunction.

33. Second, the cause of action to claim temporary/permanentinjunction against the defendants from interfering in plaintiff’s possessionover the suit premises accrues when defendant No.1 threatens the plaintiffto dispossess him from the suit premises or otherwise cause injury to theplaintiff in relation to the suit premises. It is governed by Order 39 Rule1 (c) of the Code which deals with the grant of injunction. The limitationto file such suit is three years from the date of obstruction caused by thedefendant to the plaintiff (See – Part VII Articles 85, 86 and 87 of theLimitation Act).

34. On the other hand, the cause of action to file suit for claimingspecific performance of agreement arises from the date fixed for theperformance or when no such date is fixed, when the plaintiff has noticedthat performance is refused by the defendant. The limitation to file suchsuit is three years from such date (See – Part II Article 54 of the LimitationAct).

35. Third, when both the reliefs/claims namely, (1) PermanentInjunction and (2) Specific Performance of Agreement are not identical,when the causes of action to sue are separate, when the factual ingredientsnecessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governedby separate articles of the Limitation Act, then, in our opinion, it is notpossible to claim both the reliefs together on one cause of action.

36. This Court in Rathnavathi & Another vs. KavitaGanashamdas (2015 (5) SCC 223) had the occasion to examine thisvery question on somewhat similar facts in detail. This Court after takinginto account the earlier decisions of this Court which dealt with thisquestion held in Paras 22 to 31 that bar contained in Order 2 Rule 2 ofthe Code on such facts is not attracted against the plaintiff so as todisentitle him from filing the subsequent suit to claim specific performanceof agreement against the defendants in relation to the suit property.

37. We apply the law laid down in the case of Rathnavathi (supra)and hold that the suit filed by the original plaintiff for specific performanceof agreement against the respondents (defendants) is not barred by Order2 Rule 2 of the Code and is held maintainable for being tried on merits.

ABC

38. This takes us to examine another question as to whether inthe absence of any permission/liberty granted by the Trial Court to theplaintiff at the time of withdrawing the previous suit filed for permanentinjunction, the plaintiff was entitled to file the suit for specific performanceof agreement against the defendants in relation to the suit property?

39. In our considered opinion, this question does not now survivefor consideration in the light of what we have held above. In any event,keeping in view the law laid down by this Court in Gurinderpal vs.Jagmittar Singh (2004) 11 SCC 219, the question is answered againstthe respondents.

C40. In somewhat similar facts, the question arose before this Courtin Gurinderpal’s case (supra), namely, if the order granting permissionto withdraw the suit under Order 23 Rule 1(3) of the Code does notspecifically mention the fact of granting liberty to the plaintiff to file afresh suit, whether filing of fresh suit would be hit by Order 2 Rule 2 ofthe Code?D

41. This Court (three Judge Bench), speaking through Justice R.C.Lahoti (as His Lordship then was), held that filing of the second suit isnot hit by Order 2 Rule 2 of the Code and is maintainable for being triedon merits. This is what this Court held in Para 6:

E“6. Having heard the learned counsel for the parties, weare satisfied that the judgment of the High Court as also ofthe first appellate court cannot be sustained to the extentto which the bar enacted under Order 2 Rule 2 CPC hasbeen applied. The provisions of Order 2 Rule 2 CPC barthe remedy of the plaintiff-appellant and, therefore, mustFbe strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproducedhereinabove, has to be read in the light of the statement ofthe plaintiff-appellant recorded by the court on that verydate. The plaintiff-appellant had clearly stated that he wasGseeking leave to withdraw the suit with the liberty of filinga fresh suit. The trial court recorded that the suit was beingdismissed as withdrawn “in view of the statement of theplaintiff”. conjoint reading of the order of the court andthe statement of the plaintiff, clearly suggests that the suitwas dismissed as withdrawn because the plaintiff wanted to

file fresh suit, obviously wherein the plaintiff would seekthe decree of specific performance and not of mereinjunction as was prayed for in the suit which was sought tobe withdrawn. In the subsequent suit, the first appellatecourt was not right in forming an opinion that liberty to filethe fresh suit was not given to the plaintiff in the orderdated 15-6-1994. That finding of the first appellate courtought not to have been sustained by the High Court.”

42. Applying the aforementioned principle of law to the case athand, we find that the original plaintiff (Sucha Singh), in clear terms, hadstated in the previous suit that he wants to withdraw the suit because hewants to file appropriate proceedings before the competent forum inrelation to the subject matter of the suit. The Trial Court recorded hisstatement on 27.11.1998 and allowed withdrawal of the suit.

43. In our considered opinion, reading of the statement of theoriginal plaintiff (Sucha Singh) coupled with the permission granted bythe Court to withdraw the suit satisfies the requirement of Order 23Rule 1 (3) of the Code. It certainly enabled the plaintiff to file freshsuit, namely, the civil suit for claiming specific performance of theagreement against the defendants. In our view, the Court was entitledto take into consideration the statement made by the original plaintiff(Sucha Singh) for withdrawing the suit and filing it afresh and hisstatement could be made part of the order for granting permission towithdraw the civil suit and file fresh suit as was held in the case ofGurinderpal (supra).

44. In our view, therefore, this submission urged by the learnedcounsel for the respondents has no merit.

45. Learned counsel for respondent No.2 (defendant No.2) thenaddressed the Court on the merits of the suit. We are afraid, we cannotgo into any question relating to the merits of the controversy involved inthe suit. It is for the Trial Court to now proceed to try the suit on meritsand decide the suit in accordance with law.

46. In view of the foregoing discussion, we cannot concur withthe reasoning and the conclusion arrived at by the Trial Court and theHigh Court which wrongly allowed the application filed by respondentNo.2 (defendant No.2) under Order 7 Rule 11 of the Code and, in

Aconsequence, dismissed the appellants’ (plaintiffs’) suit as being barredby the provisions of Order 2 Rule 2 of the Code.

47. As consequence, the appeal succeeds and is accordinglyallowed. The impugned judgment is set aside. The application filed byrespondent No.2 (defendant No.2) under Order 7 Rule 11 of the Code isBdismissed.

48. The civil suit (No.54/99 re-numbered as 135/2008) filed bythe appellants against the respondents is held maintainable. It isaccordingly restored to its original file for being tried on merits and inaccordance with law.

49. The Trial Court is directed to decide the civil suit on meritexpeditiously and preferably within one year without being influencedby any of our observations.

Nidhi Jain

Appeal allowed.