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Friday, April 13, 2018

Or.7 rule 11 [d] read with Or.2, rule 2 - plaint was rejected as the plaintiff not obtained permission while withdrawing earlier suit for filing a fresh suit = if the order granting permission to withdraw the suit under Order 23 Rule 1(3) of the Code does not specifically 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? = 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. = we cannot concur with the reasoning and the conclusion arrived at by the Trial Court and the High Court which wrongly allowed the application filed by respondent No.2 (defendant No.2) under Order 7 Rule 11 of the Code and, in consequence, dismissed the appellants’ (plaintiffs’) suit as being barred by the provisions of Order 2 Rule 2 of the Code. As a consequence, the appeal succeeds and is accordingly allowed. The impugned judgment is set aside. The application filed by respondent No.2 (defendant No.2) under Order 7 Rule 11 of the Code is dismissed.

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 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3777 OF 2018
[Arising out of SLP (C) No.13256 of 2014]
Sucha Singh Sodhi (D) Thr. LRs. .. Appellant(s)
Versus
Baldev Raj Walia & Anr. .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal arises from the final judgment and
order dated 18.02.2014 passed by the High Court of
Delhi at New Delhi in RFA No.353 of 2012 whereby
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the Single Judge of the High Court dismissed the
appeal filed by the appellants herein and upheld the
judgment and order dated 08.05.2012 passed by the
Additional District Judge, Tis Hazari Courts, Delhi in
Suit No.135 of 2008 by which the suit of the
appellants was dismissed by taking recourse to the
powers under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the
Code”).
3) In order to appreciate the short legal issue
involved in the appeal, few relevant facts, which lie in
a narrow compass, need to be mentioned
hereinbelow.
4) Appellants are the plaintiffs whereas the
respondents are the defendants in the civil suit out of
which this appeal arises.
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5) On 11.10.1996, Sucha Singh(original plaintiff)
since dead 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 Rs.11,50,000/- and out of
the total amount, Sucha Singh paid a sum of
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Rs.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
Rs.36,000/- in cash to respondent No.1.
8) It was alleged that on 10.10.1996, respondent
No.1 threatened to dispossess Sucha Singh from the
suit premises and made unsuccessful attempt to
dispossess him with the help of henchmen (Para 13
of the plaint).
9) It is on this cause of action, Sucha Singh filed a
civil suit for permanent injunction on 11.10.1996
against respondent No.1 in relation to the suit
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premises restraining him from interfering with his
possession over the suit premises.
10) Respondent No.1 filed the written statement,
inter alia, alleging therein that he has already
transferred the suit premises to respondent No.2
herein and, therefore, the remedy of plaintiff-Sucha
Singh, if any, would be to file a civil suit for specific
performance of the agreement against respondent
No.1 but not in prosecuting the suit for permanent
injunction.
11) On 27.11.1998, Sucha Singh (plaintiff) made a
statement in the Court that he wants to withdraw the
civil suit. He also made a statement that he is
withdrawing the civil suit with a view to file
proceedings before the competent forum to claim
appropriate relief against respondent No.1.
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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 to withdraw the suit from this
court to be filed before the appropriate
forum. Counsel for defendant has no
objection for withdrawal of the suit by the
plaintiff, however asking for cost incurred.
Statements of both the parties have been
recorded separately. Parties shall be bound
by their statements as their undertakings in
the court.
I have perused the records of the file and
statements of both the parties. The plaintiff
is allowed to withdraw the suit subject to
cost of Rs.500/- to be paid to the defendant.
Cost paid in the court. After completion file
be consigned to 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 District Judge, Tis Hazari
Courts, Delhi against respondent No.1 for specific
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performance of the agreement dated 27.02.1996. In
Para 13, the plaintiff stated the facts for constituting
the accrual of cause of action for filing the suit for
specific performance of the agreement.
14) Respondent No.2 i.e. the alleged subsequent
purchaser filed an application under Order 1 Rule 10
of the Code to become 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
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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 merits.
17) During the pendency of the suit, Sucha Singh
died on 04.08.2000 and his legal representatives
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(appellants herein) were brought on record as
plaintiffs to continue the lis. The appellants
(plaintiffs) opposed the application filed by defendant
No.2 (respondent No.2 herein) and contended that
the suit for specific performance of agreement is
maintainable and not barred by Order 2 Rule 2 of the
Code.
18) The Trial Court, however, by order dated
08.05.2012 allowed respondent No.2's application
and, in consequence, dismissed the appellants’ suit
holding that it is barred by the provisions of Order 2
Rule 2 of the Code. In other words, the Trial Court
held that the plaintiffs ought to have claimed the
relief of specific performance of the agreement in the
previous suit, which was filed by Sucha Singh
(original plaintiff) for permanent injunction because
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according to the Trial Court such relief was available
for being claimed when the first suit was filed.
19) The plaintiffs felt aggrieved and filed appeal
before the High Court of Delhi. By impugned
judgment, the High Court while concurring with the
reasoning and the conclusion of the Trial Court
dismissed the appeal. Against the said judgment, the
plaintiffs felt aggrieved and have filed 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 and Mr. Pramod Dayal,
learned counsel for respondent No.2.
21) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to allow the appeal and while setting aside
the judgment and order of the High Court and the
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Trial Court, 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 against the respondents out of
which this appeal arises for being tried on merits in
accordance with law.
22) In our considered opinion, 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
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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.
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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 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 of action pleaded by him in his
plaint. In other words, if on the basis of cause of
action pleaded by the plaintiff in the plaint, he is
entitled to claim two reliefs, namely, “A” and “B”
against the defendant(s), then he is under an
obligation to claim both “A” and “B” reliefs together in
the suit. Order 2 Rule 2(1) of the Code enables the
plaintiff to relinquish any portion of his relief with a
view to bring the suit within the jurisdiction of any
Court.
26) Order 2 Rule 2(2) of the Code, however, provides
that where a plaintiff omits to sue or intentionally
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relinquishes, any portion of his claim/relief in his
suit, then in such event, he shall not be allowed
afterwards to sue in respect of the claim/relief so
omitted or/and relinquished by him in his suit. In
other words Rule 2(2) does not permit the 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 Rule 2(2) against the plaintiff by the
defendant is that the relief which the plaintiff has
claimed in the second suit was also available to the
plaintiff for being claimed in the previous suit on the
causes of action pleaded in the previous suit against
the defendant and yet not claimed by the plaintiff.
28) Therefore, we have to examine the question as
to whether the plaintiff was entitled to claim a relief
of specific performance of agreement in the previous
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suit on the basis of cause of action pleaded by the
plaintiff in the previous suit against the
respondents/defendants in relation to suit property.
29) In other words, the question that arises for
consideration is whether Sucha Singh (original
plaintiff) could claim the relief of specific performance
of agreement against the respondents/defendants in
addition to his claim of permanent injunction in the
previously instituted suit?
30) Our answer to the aforementioned question is in
favour of the plaintiffs (appellants) and against the
defendants(respondents). In other words, our answer
to the aforementioned question is that the plaintiff
could not claim the relief of specific performance of
agreement against the defendants along with the
relief of permanent injunction in the previous suit for
the following reasons.
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31) First, 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
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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 plaintiff has
noticed that performance is refused by the defendant.
The limitation to file such suit is three years from
such date (See – Part II Article 54 of the Limitation
Act).
35) Third, when both the reliefs/claims namely, (1)
Permanent Injunction and (2) Specific Performance of
Agreement are not identical, when the causes of
action to sue are separate, when the factual
ingredients necessary to constitute the respective
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causes of action for both the reliefs/claims are
different and lastly, when both the reliefs/claims are
governed by separate articles of the Limitation Act,
then, in our opinion, it is not possible to claim both
the reliefs together on one cause of action.
36) This Court in Rathnavathi & Another vs.
Kavita Ganashamdas (2015 (5) SCC 223) had the
occasion to examine this very question on somewhat
similar facts in detail. This Court after taking into
account the earlier decisions of this Court which
dealt with this question held in Paras 22 to 31 that
bar contained in Order 2 Rule 2 of the Code on such
facts is not attracted against the plaintiff so as to
disentitle him from filing the subsequent suit to claim
specific performance of agreement against the
defendants in relation to the suit property.
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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 performance of
agreement against the respondents (defendants) is
not barred by Order 2 Rule 2 of the Code and is held
maintainable for being tried on merits.
38) This takes us to examine another question as to
whether in the absence of any permission/liberty
granted by the Trial Court to the plaintiff at the time
of withdrawing the previous suit filed for permanent
injunction, the plaintiff was entitled to file the suit for
specific performance of agreement against the
defendants in relation to the suit property?
39) In our considered opinion, this question does
not now survive for 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.
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Jagmittar Singh (2004) 11 SCC 219, the question is
answered against the respondents.
40) In somewhat similar facts, the question arose
before this Court in Gurinderpal’s case (supra),
namely, if the order granting permission to withdraw
the suit under Order 23 Rule 1(3) of the Code does
not specifically 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
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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 as withdrawn “in
view of the statement of the plaintiff”. A
conjoint reading of the order of the court and
the statement of the plaintiff, clearly
suggests that the suit was dismissed as
withdrawn because the plaintiff wanted to file
a fresh suit, obviously wherein the plaintiff
would seek the decree of specific
performance and not of a mere injunction as
was prayed for in the suit which was sought
to be withdrawn. In the subsequent suit, the
first appellate court was not right in forming
an opinion that liberty to file the fresh suit
was not given to the plaintiff in the order
dated 15-6-1994. That finding of the first
appellate court ought not to have been
sustained by the High Court.”

42) Applying the aforementioned principle of law to
the case at hand, we find that the original plaintiff
(Sucha Singh), in clear terms, had stated in the
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previous suit that he wants to withdraw the suit
because he wants to file appropriate proceedings
before the competent forum in relation to the subject
matter of the suit. The Trial Court recorded his
statement on 27.11.1998 and allowed withdrawal of
the suit.
43) In our considered opinion, reading of the
statement of the original plaintiff (Sucha Singh)
coupled with the permission granted by the Court to
withdraw the suit satisfies the requirement of Order
23 Rule 1 (3) of the Code. It certainly enabled the
plaintiff to file a fresh suit, namely, the civil suit for
claiming specific performance of the agreement
against the defendants. In our view, the Court was
entitled to take into consideration the statement
made by the original plaintiff (Sucha Singh) for
withdrawing the suit and filing it afresh and his
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statement could be made a part of the order for
granting permission to withdraw the civil suit and file
a fresh suit as was held in the case of Gurinderpal
(supra).
44) In our view, therefore, this submission urged by
the learned counsel for the respondents has no merit.
45) Learned counsel for respondent No.2 (defendant
No.2) then addressed the Court on the merits of the
suit. We are afraid, we cannot go into any question
relating to the merits of the controversy involved in
the suit. It is for the Trial Court to now proceed to
try the suit on merits and decide the suit in
accordance with law.
46) In view of the foregoing discussion, we cannot
concur with the reasoning and the conclusion arrived
at by the Trial Court and the High Court which
wrongly allowed the application filed by respondent
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No.2 (defendant No.2) under Order 7 Rule 11 of the
Code and, in consequence, dismissed the appellants’
(plaintiffs’) suit as being barred by the provisions of
Order 2 Rule 2 of the Code.
47) As a consequence, the appeal succeeds and is
accordingly allowed. The impugned judgment is set
aside. The application filed by respondent No.2
(defendant No.2) under Order 7 Rule 11 of the Code
is dismissed.
48) The civil suit (No.54/99 re-numbered as
135/2008) filed by the appellants against the
respondents is held maintainable. It is accordingly
restored to its original file for being tried on merits
and in accordance with law.
49) The Trial Court is directed to decide the civil
suit on merit expeditiously and preferably within one
25
year without being influenced by any of our
observations.
………………………………..J
(R.K. AGRAWAL)
 ..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
April 13, 2018

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