TMI Blog2008 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no map was attached to the agreement. The very fact that the premises sought to be transferred could not adequately be described; a plan was sought to be attached. According to the appellant herself, she had been residing only in the ground floor, along with open land on the northern side and had been using two rooms, a Patore alongwith open land of the upper portion. She had not received the possession of the disputed house. It is, therefore, evident that she did not claim herself to be a tenant in respect of the entire house and, thus, the same was not agreed to be sold. An agreement of sale must be construed having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant. Appellant was only a tenant in respect of a part of the premises. It may be that the boundaries of the house have been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be withdrawn. The application for withdrawal was allowed. 3. Respondent No. 1, however, had entered into another agreement of sale with the respondent No. 2. He filed an application for impleading himself as a party in the suit. It was allowed. 4. The learned Trial Judge decreed the suit. By reason of the impugned judgment, however, the High Court has reversed the same, holding : (i) In view of Order XXIII Rule 1 of the Code of Civil Procedure, the permission for filing another suit on the same cause of action having not been obtained, the second suit was not maintainable; and; (ii) The agreement of sale dated 1.4.1986 being vague, no decree for specific performance could be granted. 5. Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellant in support of the appeal raised the following contentions : (a) The High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the second suit having been instituted during the pendency of the first suit, Order XXIII Rule 1 of the Code of Civil Procedure was not applicable. (b) The agreement was required to be read in its entirety and so read, it would be eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 26th Oct., 1982 and the first application was withdra wn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then O. 23, C.P.C. is not attracted and the second suit cannot be dismissed under O. 23, R. 1(4) of the Civil P.C. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under O. 23, C.P.C. We agree with said views of the High Court. 11. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the costs as directed by the Court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court to give effect to the terms of the agreement but it is also a well settled principle of law that an agreement is to be read as a whole so as to enable the court to ascertain the true intention of the parties. It is not in dispute that no plan was prepared. A purported sketch mark was attached with the plaint, which was not proved. Evidences brought on record clearly lead to the conclusion that the appellant was not the tenant in respect of the entire house. She, in her deposition, even did not claim the same. Another tenant was occupying some rooms in the same premises. Appellant herein in her evidence also admitted that no map was attached to the agreement. 16. The very fact that the premises sought to be transferred could not adequately be described; a plan was sought to be attached. According to the appellant herself, she had been residing only in the ground floor, along with open land on the northern side and had been using two rooms, a Patore alongwith open land of the upper portion. She had not received the possession of the disputed house. It is, therefore, evident that she did not claim herself to be a tenant in respect of the entire house and, thus, the same was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the particular house, but it stated that the deeds were in the possession of A. The Court held the agreement sufficiently certain, since it appeared upon the face of the agreement that the house referred to was the house of which the deeds were in the possession of A., and, consequently, the house might easily be ascertained, and id certum est quod certum redid potest. Again, the word certain must, in a variety of cases, where a contract is entered into for the sale of goods, refer to an indefinite quantity at the time of the contract made, and must mean a quantity which is to be ascertained according to the above maxim. [See Trayner's Latin Maxims, Fourth Edition, Page 76] 19. Reference to the said legal maxim is, in our opinion, is not apposite in the facts and circumstances of this case. By reference to the boundaries of the premises alone, the description of the properties agreed to be sold did not become certain. For the purpose of finding out the correct description of the property, the entire agreement was required to be read as a whole. So read, the agreement becomes uncertain. 20. An agreement of sale must be construed having regard to the circumstances attending th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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