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2018 (4) TMI 679

suit - it was alleged that the suit in question (specific performance of agreement) is hit by the provisions of Order 2 Rule 2 of the Code because the relief of specific performance, which is claimed in the present suit could be and ought to have been claimed by the plaintiff - Sucha Singh in the previously instituted suit which he had filed for permanent injunction. - Held that: - the Trial Court and the High Court erred in allowing the application filed by respondent No.2 under Order 7 Rule 11 of the Code and thereby erred in dismissing the suit as being barred by the provisions of Order 2 Rule 2 of the Code by taking recourse to the provisions of Order 7 Rule 11 of the Code. In our opinion, the provisions of Order 2 Rule 2 of the Code are not attracted to the facts of this case and, therefore, civil suit should not have been dismissed as being barred under Order 2 Rule 2 of the Code. - It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit on the basis of a cause of action pleaded in the plaint, he is under a legal obligation to include and claim all the reliefs against the defendant, which have accrued to him on the cause o .....

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ad and now being represented by his legal representatives (appellant Nos.1 to 4 herein) filed a suit being Civil Suit No.705/1996 against respondent No.1 in the Court of Senior Civil Judge, Delhi. The suit was filed only for grant of permanent injunction. 6) The plaint was founded on the allegations, inter alia, that respondent No.1 was the owner of the house, i.e., basement and half of the first floor of the premises in plot No.1, Gali No.9 situated at Sanwar Nagar Post Office Raipur Khurd, New Delhi, as detailed in the plaint (Annexure-P-2) (hereinafter referred to as the suit premises ). Respondent No.1, on 27.02.1996, agreed to sell the suit premises to Sucha Singh (Plaintiff) for ₹ 11,50,000/- and out of the total amount, Sucha Singh paid a sum of ₹ 2,00,000/- by way of advance to respondent No.1 by cheque. 7) It was further averred that Sucha Singh was placed in possession of the suit premises in February, 1996. It was alleged that in May, 1996 respondent No.1 demanded more money from Sucha Singh pursuant to which Sucha Singh further paid ₹ 36,000/- in cash to respondent No.1. 8) It was alleged that on 10.10.1996, respondent No.1 threatened to dispossess Suc .....

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a party (defendant) in the suit. The application was allowed and respondent No.2 was arrayed as defendant No. 2. 15) Both the respondents (defendants No.1 and 2) filed their written statement and denied the plaintiff's claim on various grounds on facts and in law. Respondent No.2 also filed an application under Order 7 Rule 11 of the Code for rejection of the plaint. 16) It was, inter alia, alleged that the suit in question (specific performance of agreement) is hit by the provisions of Order 2 Rule 2 of the Code because the relief of specific performance, which is claimed in the present suit could be and ought to have been claimed by the plaintiff - Sucha Singh in the previously instituted suit which he had filed for permanent injunction. It was contended that non-claiming of relief of specific performance of the agreement in the previously instituted suit though available to the plaintiff for being claimed on the cause of action pleaded in the previous suit would attract the bar contained in Order 2 Rule 2 of the Code to the subsequently instituted civil suit wherein a relief of specific performance of agreement is claimed and, therefore, such suit cannot be now tried on meri .....

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Order 2 Rule 2 of the Code are not attracted to the facts of this case and, therefore, civil suit should not have been dismissed as being 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 shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) 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. 24) Order 2 Rule 2(1) of the Code provides that every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action. Liberty is, however, granted to the plaintiff to relinquish any portion of his claim with a view to bring the suit within the jurisdiction of any Court. 25) It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit on the basis of a cause of action .....

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the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa. 32) In other words, a plaintiff cannot claim a relief of specific performance of agreement against the defendant on a cause of action on which he has claimed a relief of permanent injunction. 33) Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff's possession over the suit premises accrues when defendant No.1 threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1 (c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (See - Part VII Articles 85, 86 and 87 of the Limitation Act). 34) On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the pl .....

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lly mention the fact of granting liberty to the plaintiff to file a fresh suit, whether filing of fresh suit would be hit by Order 2 Rule 2 of the Code? 41) This Court (three Judge Bench), speaking through Justice R.C. Lahoti (as His Lordship then was), held that filing of the second suit is not hit by Order 2 Rule 2 of the Code and is maintainable for being tried on merits. This is what this Court held in Para 6: 6. Having heard the learned counsel for the parties, we are satisfied that the judgment of the High Court as also of the first appellate court cannot be sustained to the extent to which the bar enacted under Order 2 Rule 2 CPC has been applied. The provisions of Order 2 Rule 2 CPC bar the remedy of the plaintiff-appellant and, therefore, must be strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the court on that very date. The plaintiff-appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed .....

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