The Petitioner, Dr. Prem Lata, who appeared in-person, challenged the appointment of Mr. Rakesh Kapoor, Mr. C.K. Chaturvedi and Mr. S.N.A. Zaidi, the Respondent Nos. 4, 5 and 6 herein, as Presidents of different District Forums, by way of Writ Petition (C) No.178 of 2011 in the Delhi High Court. In addition she prayed that while quashing the appointments of the said three Respondents, a Mandamus should issue to the State Government to appoint her as President of one of the District Fora in Delhi, with effect from 1st December, 2010, with all consequential benefits. - The Selection was done in accordance with the provisions of the Consumer Protection Act and the placement of the candidates was also done by the Committee in a completely fair manner on assessment of individual performance. The first five selectees having opted to join their posts, those who were in the waiting list can have no claim for appointment in the said posts. Since the time limit for joining was extended by the State Government on account of the facts as narrated hereinabove, the joining of the respondent Nos. 4 to 6 cannot also be questioned. 10. The Special Leave Petition, therefore, fails and is dismissed, but without any order as to costs.

                             NON-REPORTABLE | |

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                 SPECIAL LEAVE PETITION (C) NO.29967 OF 2011



DR. PREM LATA                                … PETITIONER


           Vs.



GOVT. OF NCT DELHI AND ORS.             … RESPONDENT






                               J U D G M E N T




ALTAMAS KABIR,J.


1.    The Petitioner, Dr. Prem Lata, who appeared in-person, challenged  the
appointment of Mr. Rakesh Kapoor, Mr. C.K. Chaturvedi and Mr. S.N.A.  Zaidi,
the Respondent Nos. 4, 5 and 6 herein, as Presidents of  different  District
Forums, by way of Writ Petition (C) No.178 of 2011 in the Delhi High  Court.
 In addition she prayed that while quashing the  appointments  of  the  said
three Respondents, a Mandamus  should  issue  to  the  State  Government  to
appoint her as President of one of the District Fora in Delhi,  with  effect
from 1st December, 2010, with all consequential benefits.

2.    The Petitioner is a member of the  District  Forum  and,  pursuant  to
advertisements published on 18th March, 2010, inviting applications for  the
post of President of five District Forums, had applied  for  appointment  as
President of  one  of  the  said  five  District  Forums  in  Delhi.   After
interviewing 63 candidates, the Selection  Committee  prepared  a  panel  in
which the Petitioner was shown as the first candidate in  the  waiting  list
in respect of Shalimar Bagh District  Forum  with  Mr.  M.C.  Mehra  as  the
selected candidate.  Mr. Rakesh Kapoor, Mr. C.K. Chaturvedi and  Mr.  S.N.A.
Zaidi, the Respondent Nos. 4, 5 and 6 herein, were also  shown  as  selected
for the post of President for three of the remaining Districts.   The  panel
was to be valid for a period  of  one  year  and,  in  case  the  candidates
selected failed to join within 45 days of the  offer  of  appointment,  such
offer would lapse and the second and third person, as the case  may  be,  in
order of preference, would be offered the appointment.

3.    As indicated hereinabove, the Petitioner was the first alternative  in
case Mr. M.C. Mehra, who was selected, did not  join  as  President  of  the
Shalimar Bagh District Forum.  It may be noted  that  Mr.  Mehra  did  join,
within 45 days  of  issuance  of  the  appointment  letter  in  his  favour.
Consequently, the Petitioner’s chance of being appointed  as  President  for
the said District Forum came to an end.

4.    However, it was the Petitioner’s case that the Respondent Nos.4  to  6
did not join within 45 days of issuance of the  letters  of  appointment  in
their favour, and that they were subsequently  allowed  to  join,  upon  the
conditions being relaxed, but that such relaxation  was  unlawful.   It  was
also the Petitioner’s case that the  joining  of  the  said  Respondents  as
Presidents of their respective District Forums was invalid  and  was  liable
to be set  aside  and  the  Petitioner  was  entitled  to  be  appointed  as
President of one of the District Forums in the resultant vacancies.

5.    The writ petition was dismissed on the ground  that  at  the  relevant
time when the appointment letters  were  issued,  the  Respondent  No.4  was
functioning  as  the  Principal  District  &  Sessions  Judge,  Delhi.   The
Respondent No.5 was functioning as the District  Judge-II,  Delhi,  and  the
Respondent No.6 was functioning as the Additional District  Judge,  Mathura.
They had written to their respective High Courts to be relieved  from  their
respective posts so that they could join their new  posts.   A  request  was
also made on behalf of the High  Court  to  the  Lt.  Governor,  Delhi,  for
extension of time to enable the said Respondents to  join  their  respective
posts.  In the circumstances indicated,  the  Government  of  NCT  of  Delhi
extended  the  time  and,  thereafter,  the  said  Respondents   joined   as
Presidents of  the  respective  Forums  on  25th  February,  2011  and  28th
February, 2011.  The learned Single Judge held that the power to extend  the
time was within the domain of the Respondent authorities and they had  every
right to extend the time to meet the exigencies  which  had  cropped  up  in
this case.  The  Petitioner,  thereupon,  preferred  Letters  Patent  Appeal
No.518 of 2011, which was dismissed by the Division Bench of the High  Court
on 16th August, 2011, upon  reiteration  of  the  decision  of  the  learned
Single Judge.  It is against the said judgment of the Division Bench of  the
High Court that the present Special Leave Petition is being filed.

6.    The petitioner  submitted  that  the  appointment  for  the  posts  in
question is governed under Section 10(1A) of the  Consumer  Protection  Act,
1986, whereunder a Selection Committee consisting of the  President  of  the
State Commission, Secretary of the Law  Department  of  the  State  and  the
Secretary In-charge of the Department dealing with the Consumer  Affairs  in
the  State  makes  recommendations  for  selection  to  such   posts.    The
petitioner submitted that the concerned  authorities were  not  entitled  to
go beyond  the  recommendations  made  by  the  Committee  within  the  time
prescribed and since the candidates selected had  to  join  within  45  days
from the date of the receipt of the appointment letter, the respondent  Nos.
4 to 6, who had not joined within the said period, stood disqualified.   The
petitioner also contended that the  State  Government  acted  in  excess  of
jurisdiction in condoning the delay and  allowing  the  said  candidates  to
join their respective  District  Forums  beyond  the  time  specified.   The
petitioner  also  contended  that  upon   disqualification   of   the   said
respondents 4 to 6, she was entitled to be appointed  as  the  President  of
the one of the said three District Forums.

7.    In addition to the above, the petitioner also  challenged  the  manner
in which the selection  had  been  made  so  as  to  confine  the  concerned
candidates to the respective districts for which they had  been  considered.
The petitioner urged that there was no logical reason for her to  have  been
placed in the Shalimar Bagh District beyond Shri  M.C.  Mehra,  whereas  she
could have been selected for appointment in  any  of  the  other  Districts.
Urging that the entire  selection  process  was  arbitrary,  the  petitioner
submitted that the appointments of the respondent Nos. 4  to  6  after  they
had failed to join within the specified period of 45 days,  were  liable  to
be cancelled and a direction should be given to the State to appoint her  as
the President of one of the three Districts for which the  respondent  Nos.4
to 6 had been selected.

8.    On the other hand, it was urged by the  learned  Additional  Solicitor
General, Mr. A.S. Chandhiok, that the first five candidates,  who  had  been
selected for the post of the President for five District  Forums,  had  been
selected on the basis of merit, as was also  the  case  in  respect  of  the
other  candidates  kept  in  the  waiting  list.   The  learned   Additional
Solicitor General contended that, in any event, the petitioner has no  cause
for grievance since Shri M.C.  Mehra,  who  had  been  selected  to  be  the
President of the Shalimar Bagh District  Consumer  Forum,  joined  his  post
within the time specified and hence the petitioner could not claim the  post
of President for the said District Forum.  As far as the respondent  Nos.  4
to 6 are concerned, the learned ASG pointed out that they were  all  serving
in the District Judiciary when the appointment letters were issued to  them.
 As indicated hereinbefore, at the relevant point  of  time  the  respondent
No.4 was functioning as the Principal District and  Sessions  Judge,  Delhi,
while the respondent Nos.5 and 6 were functioning as the  District  Judge-II
Delhi,  and  as  the  Additional  District  Judge,  Mathura.    The  learned
Additional Solicitor General submitted that on receipt of their  appointment
letters the Respondent Nos.4 to 6  had  written  to  their  respective  High
Courts to be relieved so that they could join their new  posts.   A  request
was also made to the Lt. Governor of Delhi on behalf of the  High  Court  to
extend the time of joining to enable the  said  respondents  to  join  their
respective District Forums.  Mr. Chandhiok   submitted  that  the  delay  in
joining  their  respective  District  Forums  was  not  on  account  of  any
deliberate design on  the  part  of  the  said  respondents  to  delay  such
joining, but such delay  resulted  on  account  of  the  exigencies  of  the
situation which had been considered by the High Court and had  been  decided
in favour of the said respondents on the principle that  the  power  to  fix
the time limit also includes the power to  extend  the  said  period,  which
power was inherent in the State Government.  The learned ASG submitted  that
the selection had been done by the  Selection  Committee  constituted  under
Section 10(1A) of the Act and the petitioner could not, therefore, have  any
grievance in that regard.

9.     Having considered the submissions made by  the  petitioner  appearing
in person and the learned Additional  Solicitor  General  and  also  counsel
appearing for one of the private respondents, we see no reason to  interfere
with the judgment of the High Court. The Selection was  done  in  accordance
with the provisions of the Consumer Protection Act and the placement of  the
candidates was also done by the Committee in a  completely  fair  manner  on
assessment of individual  performance.   The  first  five  selectees  having
opted to join their posts, those who were in the waiting list  can  have  no
claim for appointment in the said posts.  Since the time limit  for  joining
was extended by the State Government on account of  the  facts  as  narrated
hereinabove, the joining of the respondent  Nos.  4  to  6  cannot  also  be
questioned.

10.   The Special Leave Petition, therefore, fails  and  is  dismissed,  but
without any order as to costs.

                                                         ……………………………………………J.
                                                             (ALTAMAS KABIR)


                                                         ……………………………………………J.
                                                            (J. CHELAMESWAR)
New Delhi
Dated: September 11, 2012

The petitioner herein (writ petitioner before the High Court) is a registered partnership firm which had developed a residential colony in Miramar, Goa, known as La Campala residential colony. It is the case of the petitioner that after completion of the developmental work the residual land of the colony, including all open plots that were meant to be kept open as “vacant space”, were transferred in favour of the petitioner under a registered deed dated 16th November, 1977. Such open spaces, according to the petitioner, included a piece of land measuring about 19250 sq.mtrs. bearing Chalta No.18 of PT Sheet No. 120, Miramar, Panaji, Goa (hereinafter referred to as ‘the land in question’). The petitioner claims that the right, title and interest in the said open land undisputedly vested in the petitioner and the petitioner has exclusive right to develop the said open land which is to the knowledge of all concerned including the respondents in the present appeal. - Keeping in mind the very limited rights of the Petitioner that are disclosed at this stage by the materials on record and taking into account the nature of the developmental works that were proposed and the fact that a part of the work may have been executed in the meantime, we are of the view that the Respondents should be permitted to complete the remaining work on the land and the petitioner should be left with the option of raising a claim before the appropriate forum for such loss and compensation, if any, to which he may be entitled to in law. Naturally, if any such claim of compensation is required to be founded on proof of title/ownership or any other such relevant fact(s), the Petitioner will have to establish the same. No part of the present order shall be construed to be an expression of any opinion of this Court with regard to the ownership or any other right or entitlement of the Petitioner which has to be proved in accordance with law.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

               CIVIL APPEAL No.  6383                  of 2012
               ( Arising out of SLP (Civil)No. 29081 of 2011)


M/s. Real Estate Agencies               … Appellant(s)

                                   Versus

Govt. of Goa & Ors.                          … Respondent(s)

                            J  U  D  G  M  E  N T

RANJAN GOGOI, J.

      Leave granted.

2.    This appeal has been filed to challenge the order dated  18th  August,
2011 passed by the High Court of Bombay  (Panaji  Bench)  in  Writ  Petition
No.98/11 by which the reliefs sought in the writ petition have been  refused
and the writ petitioner has been left with the  option  of  approaching  the
civil court for the redressal of his grievances.



3.    The facts in brief may be noted at the very outset:

(i)   The petitioner herein (writ petitioner before the  High  Court)  is  a
registered partnership firm which had  developed  a  residential  colony  in
Miramar, Goa, known as La Campala residential colony. It is the case of  the
petitioner that after completion of  the  developmental  work  the  residual
land of the colony, including all open plots that  were  meant  to  be  kept
open as “vacant space”, were transferred in favour of the  petitioner  under
a registered deed dated 16th November, 1977. Such open spaces, according  to
the petitioner, included a piece of  land  measuring  about  19250  sq.mtrs.
bearing Chalta No.18 of PT Sheet No. 120, Miramar, Panaji, Goa  (hereinafter
referred to as ‘the land in  question’).  The  petitioner  claims  that  the
right, title and interest in the said open land undisputedly vested  in  the
petitioner and the petitioner has exclusive right to develop the  said  open
land which is to the knowledge of all concerned  including  the  respondents
in the present appeal.

(ii)  In the writ petition filed, it was further claimed  that  sometime  in
the year 1981 the petitioner wanted to raise  construction  in  an  area  of
about 7,000 sq.mtrs. (consisting of 14 plots of 500 sq.mtrs.  each)  out  of
the aforesaid open space of 19250  sq.mtrs.  According  to  the  petitioner,
such construction over the 7,000 sq.mtrs. of land  would  still  have   kept
more than 12,000 sq.mtrs. as open space which area would  have  been  within
the  prescriptions  contained  in   the   existing   Municipal   Rules   and
Regulations.  However  some  of  the  purchasers  of  the  plots   who   had
constructed their buildings thereon and had formed  a  co-operative  society
i.e. Model Cooperative Housing Society, approached the Bombay High Court  by
way of a civil suit bearing No.1/B of 1981 claiming an easementary right  in
respect of the entire vacant/open space of 19250 sq.mtrs. In  the  aforesaid
suit, the Co-operative Society, as the  plaintiff,  contended  that  in  the
brochures published at the time of development of the housing colony it  was
represented that 19250 sq.mtrs. of open space will be available in order  to
ensure plenty of light and ventilation besides  serving  as  a  recreational
ground  for  the  children  of  the  members  of  the  Society.   In   these
circumstances a decree of injunction was sought against  the  defendants  in
Suit No. 1/B of 1981 particularly the defendant  No.9  i.e.  the  petitioner
herein from raising any construction on the land in  question.  By  judgment
and order dated 29th April, 1983 the  said  suit  was  decreed.  L.P.A.  No.
26/83 filed by the present petitioner against the said  judgment  and  order
dated 29th April, 1983 was dismissed and the decree passed  by  the  Learned
Single Judge was affirmed. According to the petitioner,  in  the  course  of
the aforesaid proceedings,  no  issue  with  regard  to  the  title  of  the
petitioner to the land in question was raised and it  was  accepted  by  all
the contesting parties that the petitioner was the owner of  the  said  land
measuring 19250 sq.mtrs. In fact, the  only  issue  in  the  suit  was  with
regard to the right of the petitioner to raise  constructions  on  the  said
land or on any part thereof.

(iii) It was the further case of the petitioner in the  writ  petition  that
an area of about 625 sq. mtrs.  out  of  the  open  space  in  question  was
acquired under the provisions of the Land Acquisition Act, 1894 sometime  in
the year 1990 and in the said acquisition  proceeding,  the  petitioner  was
treated as the absolute owner  of  the  land.  In  fact,  according  to  the
petitioner, the compensation  payable  under  the  Award  was  paid  to  the
petitioner who had also filed a Reference Application under  Section  18  of
the Act and had further carried the matter in an appeal to  the  High  Court
of Bombay.



4.    According to the petitioner the aforesaid  facts  show  and  establish
the undisputed title of the petitioner to  the  land  in  question.  Certain
activities were, however, undertaken on the said land on 2nd  January,  2011
and the inquiries made on behalf of the petitioner indicated that  alongwith
a project of beautification of the  adjoining  Miramar  lake  a  project  to
develop  the  open  land  in  question  was  proposed  to   be   undertaken.
Specifically, a jogging track, walk ways,  recreational  centres  etc.  were
proposed. According to the petitioner, further inquiries revealed that  such
developmental work on  the  land  was  proposed  to  be  undertaken  at  the
instance of the respondent No. 3 who is the local Municipal  Councilor  and,
in fact, a Government Order dated 30th June, 2010 had  been  passed  in  the
matter by the Principal Chief Engineer, Public Works Department,  Government
of Goa. The petitioner had also averred in the  writ  petition  filed,  that
the very first stipulation in the order dated 30th June, 2010 required  that
tenders in respect of the developmental  work  on  the  land  shall  not  be
issued unless the land itself is acquired. However, without  initiating  any
proceeding to acquire the land, a tender was floated sometime in  September,
2010 and the respondent No.  4  was  awarded  the  Work  Order  sometime  in
December, 2010 requiring completion of the developmental works on  the  land
within 180 days. It is pursuant thereto that the  works  on  the  land  were
undertaken w.e.f. 2nd  January,  2011.  As  the  aforesaid  actions  of  the
respondents were not only in violation of the Government  Order  dated  30th
June, 2010 but also had the  effect  of  depriving  the  petitioner  of  the
ownership in the  property  in  question,  the  petitioner  filed  the  writ
petition in question seeking interference of the High Court in the  proposed
developmental work which according to the petitioner had already commenced.



5.    The respondents in the writ petition, including the Government of  Goa
and the Corporation of the city of Panaji apart from the Model  Co-operative
Housing Society, filed separate  counter  affidavits/written  statements  in
the case. According to the State the open space in question was required  to
be kept free from any kind of construction under the planning laws in  force
and that the plot owners in  the  residential  colony  have  an  easementary
right on and over the open space which had been  so  declared  by  the  High
Court  of  Bombay  in  Civil  Suit  No.1/B/1981   and   L.P.A.   No.26/1983.
Furthermore in terms of the judgments of the High  Court  in  the  aforesaid
cases the petitioner was obliged to keep the open  space  so  available  and
vacant at all times. In the affidavit filed the  State  had  also  contended
that at no point of time the petitioner was  interested  in  developing  the
open space and the same had become a dumping ground of garbage.  In  such  a
situation the Local Corporator  of  the  Panaji  Municipal  Corporation  was
requested by the residents to intervene in the matter and develop  the  land
into a recreational area. Initially the work was entrusted to the Goa  State
Infrastructure Development Corporation.  Thereafter,  the  Goa  State  Urban
Development Agency was entrusted with the responsibility. However,  as  both
the aforesaid entities faced  the  problem  of  shortage  of  funds  it  was
decided that the work will be carried out by the PWD, Goa. In the  affidavit
filed it was further stated that the open space was  to  be  developed  into
(a) Children Playing area, (b) Joggers Track,  (c)  Water  Harvesting  Pond,
(d) Multi-purpose court for cricket/football and (e) a Tennis court  and  an
Amphitheatre. Such development which was to be to the  benefit  of  all  the
residents, particularly the children and the elders, was estimated  to  cost
around Rs.2.92 crores. It was specifically stated in the  affidavit  of  the
State, that the work had already commenced and almost 14% thereof  had  been
completed.



      In para 14 of the affidavit  it  was  stated  that  in  terms  of  the
decision of this Court in Chet  Ram  Vashist  v.  Municipal  Corporation  of
Delhi[1], the petitioner has ceased to be the legal owner of  the  land  and
its position was that of a trustee holding the land for the benefit  of  the
members of the Housing Society and the public at large. The  petitioner  had
no right to use the land for any developmental work or to transfer  or  sell
the same; it was merely a trustee  of  the  land  holding  the  same  for  a
specific purpose i.e.  beneficial  utilization  as  an  open  space  by  the
community at large. In a situation where the petitioner had done nothing  to
develop the open space for the public good, the Government  had  decided  to
step in and carry out the project for the benefit of the residents.



6.    In the affidavit filed by the respondent No.2 –  Commissioner  of  the
Municipal Corporation, Panaji, a claim that the open  space  had  vested  in
the Corporation had been raised whereas in the affidavit filed on behalf  of
respondent No. 5 i.e. Model Cooperative Housing Society, the details of  the
judgment in Civil Suit No. 1/B of 1981 had been mentioned  under  which  the
land in question is required to be maintained as an open space so to  enable
the residents to have free access to light and air apart  from  recreational
facilities. In the affidavit filed by the respondent No. 5, the decision  of
this Court in Chet Ram Vashist ‘s case (supra) had also been relied upon  to
contend that the legal title of the petitioner in the said open space  stood
extinguished and petitioner is holding the land only as a trustee on  behalf
of the residents of the locality.  As the petitioner had not discharged  the
duties cast upon it as a trustee and had utterly failed to develop the  open
space,  the  residents  of  the  locality  had  approached  the  local  Ward
Councilor (respondent No.3) who had taken  the  initiative  to  develop  the
land in question.



7.    The aforesaid detailed recital of the facts projected by  the  parties
had become necessary as the order of the High Court assailed in the  present
SLP does not contain any reference to the relevant  circumstances  in  which
the High Court had  passed  the  impugned  order  or  the  reasons  why  the
petitioner was relegated to the remedy of initiating a civil  action.   Time
and again this Court has emphasized that such a course of action by a  Court
cannot lead to a legally acceptable conclusion inasmuch  as  the  manner  of
reaching the decision  and  the  reasons  therefor  are  sacrosanct  to  the
judicial process.  However, we do not wish to dilate  the  aforesaid  aspect
of the matter any further in view of the clear and consistent insistence  of
this Court on the aforesaid fundamental requirement.

8.    A reading of the order of the High Court would go  to  show  that  its
refusal to interdict the developmental  works  undertaken  or  about  to  be
undertaken  is  on  the  ground  that  the  Petitioner  has  an  efficacious
alternative remedy, i.e. a suit for injunction. The  Writ  Court  exercising
jurisdiction under Article 26 of the  Constitution  is  fully  empowered  to
interdict the State or its instrumentalities from embarking  upon  a  course
of action to detriment of  the  rights  of  the  citizens,  though,  in  the
exercise of jurisdiction in the domain of public law such a restraint  order
may not be issued against a private individual.  This,  of  course,  is  not
due to any inherent lack of jurisdiction but on the basis  that  the  public
law remedy should not be readily extended to settlement of private  disputes
between individuals. Even where such an order is  sought  against  a  public
body the  Writ  Court  may  refuse  to  interfere,  if  in  the  process  of
determination disputed questions of  fact  or  title  would  require  to  be
adjudicated.



9.    However, there is no universal rule or principle of law  which  debars
the Writ Court from entertaining adjudications involving disputed  questions
of fact.  In fact, in the realm of legal theory, no question or issue  would
be beyond the adjudicatory jurisdiction under  Article  226,  even  if  such
adjudication would require taking of oral evidence.  However,  as  a  matter
of prudence, the High Court under Article 226 of the Constitution,  normally
would  not  entertain  a  dispute  which  would  require  it  to  adjudicate
contested questions and conflicting claims of the parties to  determine  the
correct facts for due application of the law.  In ABL International  Ltd.  &
Anr. V. Export Credit Guarantee Corporation of India  Ltd.[2],  the  precise
position of the law in this regard has been explained in paragraphs  16,  17
and 19 of the Judgment in the course of which  the  earlier  views  of  this
Court in Smt. Gunwant  Kaur  &  Ors.  v.  Municipal  Committee,  Bhatinda  &
Ors.[3] and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal  Council[4]
has been referred to.  The aforesaid  paragraphs  of  the  judgment  in  ABL
International Ltd. & Anr. v. Export Credit Guarantee  Corporation  of  India
Ltd. (supra) may, therefore, be usefully extracted below:

           “16.    A perusal of this judgment  though  shows  that  a  writ
           petition involving serious disputed  questions  of  facts  which
           requires consideration of evidence which is not on record,  will
           not normally be entertained by a court in the  exercise  of  its
           jurisdiction under Article 226 of  the  Constitution  of  India.
           This decision again, in  our  opinion,  does  not  lay  down  an
           absolute rule that in all cases involving disputed questions  of
           fact the parties should be relegated to a civil  suit.  In  this
           view of ours, we are supported by a judgment of  this  Court  in
           the case of Gunwant Kaur v. Municipal Committee, Bhatinda - 1969
           (3) SCC 769 where dealing with  such  a  situation  of  disputed
           questions of fact in a writ petition this Court  held:  (SCC  p.
           774, paras 14-16)

              “14.     The High Court observed that they will not determine
              disputed question of fact in a writ petition. But what  facts
              were  in  dispute  and  what  were  admitted  could  only  be
              determined after  an  affidavit-in-reply  was  filed  by  the
              State. The High Court,  however,  proceeded  to  dismiss  the
              petition in limine. The High Court is  not  deprived  of  its
              jurisdiction to entertain a petition under Article 226 merely
              because in  considering  the  petitioner's  right  to  relief
              questions of fact may fall to be determined.  In  a  petition
              under Article 226 the High  Court  has  jurisdiction  to  try
              issues both of fact and law. Exercise of the jurisdiction is,
              it  is  true,  discretionary,  but  the  discretion  must  be
              exercised on sound judicial  principles.  When  the  petition
              raises questions of fact of a complex nature, which  may  for
              their determination require oral evidence to be taken, and on
              that account the High Court is of the view that  the  dispute
              may not appropriately be tried in a writ petition,  the  High
              Court may decline to try a petition. Rejection of a  petition
              in limine will normally be justified, where the High Court is
              of the view that the petition is frivolous or because of  the
              nature of the claim made dispute sought to  be  agitated,  or
              that the petition against the party against  whom  relief  is
              claimed is  not  maintainable  or  that  the  dispute  raised
              thereby is such that it would be inappropriate to try  it  in
              the writ jurisdiction, or for analogous reasons.

              15. From the averments made in  the  petition  filed  by  the
              appellants it is clear that in proof of  a  large  number  of
              allegations the appellants relied upon  documentary  evidence
              and the only matter in respect of which conflict of facts may
              possibly  arise  related  to  the  due  publication  of   the
              notification under Section 4 by the Collector.

              16. In the present case, in our judgment, the High Court  was
              not justified in dismissing the petition on the  ground  that
              it will not determine disputed question  of  fact.  The  High
              Court has jurisdiction to determine questions of  fact,  even
              if they are in dispute and the present, in our judgment, is a
              case in which in the interests of both the parties  the  High
              Court should have entertained the petition and called for  an
              affidavit-in-reply from  the  respondents,  and  should  have
              proceeded to try  the  petition  instead  of  relegating  the
              appellants to a separate suit.”

           17. The above judgment of Gunwant  Kaur  (supra)  finds  support
           from another judgment of this Court in the case of Century  Spg.
           and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council – 1970 (1) SCC
           582 wherein this Court held: (SCC p. 587, para 13)

                 “Merely because a question of  fact  is  raised,  the  High
                 Court will not be justified in requiring the party to  seek
                 relief by the  somewhat  lengthy,  dilatory  and  expensive
                 process  by  a  civil  suit  against  a  public  body.  The
                 questions of fact raised by the petition in this  case  are
                 elementary.”

                            xxx         xxx        xxx

           19. Therefore, it is clear from the  above  enunciation  of  law
           that merely because one of the parties to the litigation  raises
           a dispute in  regard  to  the  facts  of  the  case,  the  court
           entertaining such petition under Article 226 of the Constitution
           is not always bound to relegate the parties to a  suit.  In  the
           above case of Gunwant Kaur (supra) this Court even went  to  the
           extent of holding that in a writ petition, if the facts require,
           even oral evidence can be taken. This clearly shows that  in  an
           appropriate  case,  the  writ  court  has  the  jurisdiction  to
           entertain a writ petition involving disputed questions  of  fact
           and there is no absolute bar for entertaining  a  writ  petition
           even if the same arises out of a contractual  obligation  and/or
           involves some disputed questions of fact.




10.   The Petitioner in the present  case  claimed  title  to  the  land  in
question on the basis of the deed of Indenture dated 16.11.1977;  the  order
of the Bombay High Court in Suit No. 1/B/1981 and LPA  No.  26  of  1983  as
well as the proceedings of acquisition in respect of an area  of  about  625
sq. m. out of the open space in question.   The  State  did  not  claim  any
title to the land but had contended that by virtue of the judgment  of  this
Court in Pt. Chet Ram (supra) the Petitioner had ceased to hold  the  normal
attributes of ownership of immovable property in  respect  of  the  land  in
question and its position was more akin to that of  a  trustee  holding  the
land  for  the  benefit  of  the  public  at  large.   The  Housing  Society
(defendant No.5), on the other hand, claim easementary  right  of  enjoyment
of the open space.  It is only the Municipal Corporation, Panaji  (defendant
No.2), who had claimed that the land has vested in  it.   How  and  in  what
manner such vesting had occurred, however, had not been  stated  in  support
of the claim of the Corporation. There is complete silence in  this  regard.
In such circumstances, it was incumbent on the High  Court  to  undertake  a
deeper probe in the matter in order to find out whether  the  claim  of  the
Corporation had any substance or had been so raised merely to  relegate  the
Petitioner to a more “lengthy, dilatory  and  expensive  process”   that  is
inherent in a civil suit. The High Court, in our considered view, ought  not
to have disposed of the Writ Petition at the stage and in the manner it  had
so done and,  instead,  ought  to  have  satisfied  itself  that  there  was
actually a serious dispute between the parties on the question of  ownership
or title.  Only in that event, the High Court would have been  justified  to
relegate the Petitioner to the Civil Court to seek his remedies by way of  a
suit.



11.   On the view that we have taken, we have to conclude that the  impugned
order dated 18.08.2011 passed by the High  Court  is  not  tenable  in  law.
However, having arrived at the aforesaid conclusion the next  question  that
has to engage our attention is what would be the appropriate  order  in  the
facts and circumstances of the case?



12.   In the counter affidavit  filed  before  this  Court,  the  Respondent
claims that about 40% of the work has been completed and extension  of  time
for completion of the remaining work, as per the terms of the  Contract,  is
being processed. Though the Petitioner disputes the aforesaid  position,  it
may be reasonable to assume that  in  absence  of  any  interim  order  some
progress in the execution of the developmental work has taken  place  during
pendency of the present proceeding.  There is also no manner of  doubt  that
the land in question being earmarked as open space and the said fact  having
been affirmed by the High Court in Civil Suit No. 1/B/1981 and  LPA  No.  26
of 1983, the normal attributes of legal ownership of the  land  have  ceased
insofar as the Petitioner is concerned who is holding the land as a  Trustee
on behalf of the residents and other members of the Public.  The  Petitioner
cannot transfer the land or use the same  in  any  other  manner  except  by
keeping it as  an  open  space.   The  aforesaid  position  flows  from  the
decision of this Court in Pt.  Chet  Ram  Vashist  (supra)  wherein  such  a
conclusion had been reached by this  Court  in  a  largely  similar  set  of
facts.



13.   Keeping in mind the very limited rights of  the  Petitioner  that  are
disclosed at this stage by the materials on record and taking  into  account
the nature of the developmental works that were proposed and the  fact  that
a part of the work may have been executed in the meantime,  we  are  of  the
view that the Respondents should be  permitted  to  complete  the  remaining
work on the land and the petitioner  should  be  left  with  the  option  of
raising  a  claim  before  the  appropriate  forum   for   such   loss   and
compensation, if any, to which he may be entitled to in law.  Naturally,  if
any such claim of compensation  is  required  to  be  founded  on  proof  of
title/ownership or any other such  relevant  fact(s),  the  Petitioner  will
have to establish the same. No part of the present order shall be  construed
to be an expression of  any  opinion  of  this  Court  with  regard  to  the
ownership or any other right or entitlement of the Petitioner which  has  to
be proved in accordance with law.




14.   Consequently, we dispose of the Civil Appeal in the above terms.




                                        ...……………………J.
                                          [P SATHASIVAM]



                                        ………………………J.
                                          [RANJAN GOGOI]

New Delhi,
10th September, 2012.


-----------------------
[1]     (1995) 1 SCC 47

[2]    [2004 (3) SCC 553]

[3]    [1969 (3) SCC 769]

[4]    [1970 (1) SCC 582]



-----------------------
21

In view of our order dismissing the appeal, the interim protection granted by this Court on 23.09.2011 shall stand vacated and the appellant is granted two weeks time from today to surrender and seek regular bail. It is also made clear that the conclusion arrived at by the courts below including the present order relates only to eligibility or otherwise of the relief of anticipatory bail and the trial Court is free to decide the bail application de hors to the above observation and in accordance with law.

                                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                                      1


                   2 CRIMINAL APPEAL NO.   1376   OF 2012


                3 (Arising out of SLP (Crl.) No. 7337 of 2011






Maruti Nivrutti Navale                          .... Appellant(s)

            Versus

State of Maharashtra & Anr.                     .... Respondent(s)




                               J U D G M E N T

P. Sathasivam, J.
1)    Leave granted.
2)    This appeal is directed  against  the  final  order  dated  19.09.2011
passed by the High Court of Judicature at  Bombay  in  Criminal  Application
No. 786 of 2011  whereby  the  High  Court  dismissed  the  application  for
anticipatory bail filed by the appellant herein.
3)    Brief facts:
(a)   The appellant  is  the  Founder  President  and  Managing  Trustee  of
Sinhgad Technical Education Society, Pune (in  short  ‘the  Society’).   The
Society  is  engaged  in  imparting  formal  and   informal   education   by
establishing various schools, colleges and  institutions  in  the  State  of
Maharashtra.  Respondent No.1 is the State and Chainsukh Sobhachand  Gandhi-
Respondent No.2 herein is the original  Complainant  and  is  a  Trustee  of
Pawan  Gandhi  Charity  Trust  (in  short  ‘the  Trust’)  working  for   the
upliftment  of  economically  and  socially  impoverished  sections  of  the
society.
(b)   Respondent  No.  2  was  running  a  school  on  land  bearing  Survey
No.154/6/1 admeasuring 57 acres situated  at  Ambavet,  Tal.  Mulshi,  Dist.
Pune, on which a building in the area of 650 sq. mts. was  constructed.   In
the year 2008, it was decided to run the  School  with  the  help  of  other
educational institutions by leasing out  the  property.   Respondent  No.  2
approached the appellant herein for the  same.   The  appellant  herein  has
also shown interest in acquiring lease hold rights in order  to  run  school
activities in the said property.  Pursuant to the  same,  negotiations  took
place and it was offered to lease out the said school building for a  period
of 87 years and to sell the other property, viz., land  bearing  Survey  No.
165/1 admeasuring 8500 sq. mts., Survey No. 162 admeasuring 7600  sq.  mts.,
Survey No. 160/1 admeasuring 1900 sq. mts. and Survey  No.  161  admeasuring
21300  sq.  mts.  situated  at  Ambavet,  Tal.  Mulshi,  Dist.  Pune  for  a
consideration of Rs. 3,50,00,000/-.
(c)   Accordingly, two separate Memorandums  of  Understanding  (MoUs)  were
executed on 10.05.2008.   Both  the  memorandums  were  duly  notarized  and
registered.  On 13.05.2008, in  order  to  realize  the  object,  the  Trust
leased out the said property to the Society for a period of 2 years  and  11
months commencing from 15.04.2008 and expiring on 09.03.2011 by  way  of  an
interim arrangement for an amount of Rs.  1/-  towards  lease  fee  for  the
entire duration of the lease granted.  This deed was  duly  registered  with
the office of sub-Registrar, Mulshi (Paud) at S.No. 3701/2008.
(d)   On 19.02.2011,  the  appellant-Society  received  a  legal  notice  to
remove the dead stock and articles kept in the  school  within  4  days  and
further to vacate the school and to handover the  possession  in  favour  of
the Trust alleging breach of the  clauses  mentioned  in  lease  deed  dated
13.05.2008. By reply dated  07.03.2011,  the  appellant-Society  denied  the
said allegations.
(e)   The Trust filed an application under Section 41E of the Bombay  Public
Trust  Act,  1950  before  the  Joint  Charity  Commissioner,  Pune  seeking
prohibitory orders against the appellant-Society.
(f)   Aggrieved by the inaction of the  Trust,  the  appellant-Society  also
filed two separate suits bearing Special Civil Suit bearing  Nos.  1146  and
1147 of 2011 before the Civil Court, Pune.
(g)   On 20.07.2011, respondent No.2  filed  a  complaint  with  the  Deccan
Police Station, Pune under Sections 420, 465, 468 and 471 read with  Section
34 of the Indian Penal Code, 1860 which  was  registered  as  S.No.  168  of
2011.
(h)   Against  the  said  complaint,  the  appellant  filed  an  application
bearing No. 2651 of 2011 before the  Court  of  Additional  Sessions  Judge,
Pune for grant  of  anticipatory  bail.   By  order  dated  29.08.2011,  the
Sessions Judge dismissed the said application.
(i)    Aggrieved  by  the  said  order,  the  appellant  preferred  Criminal
Application No. 786 of 2011 before the High Court.  By impugned order  dated
19.09.2011, the High Court dismissed  the  said  application.   Against  the
said order, the appellant has filed this appeal  by  way  of  special  leave
petition.
4)    Heard Mr. Mukul Rohtagi and Mr. Ranjit Kumar, learned  senior  counsel
for the appellant and Mr. Chinmoy Khaldkar, learned counsel  for  Respondent
No.1-State and Mr. Prashant Bhushan, learned counsel for Respondent  No.  2-
Complainant.
5)    The only point  for  consideration  in  this  appeal  is  whether  the
appellant has made out a case for grant of anticipatory bail  under  Section
438 of the Code of Criminal Procedure, 1908 (in short ‘the Code’).
6)    Inasmuch as the Additional Sessions Judge, Pune  in  the  order  dated
29.08.2011 and the  High  Court  in  the  impugned  order  dated  19.09.2011
adverted to all the factual details relating to  the  appellant-accused  and
the Respondent No. 1-State and Respondent No.  2-Complainant,  there  is  no
need to traverse the same  once  again  except  certain  aspects  which  are
essential for  the  disposal  of  the  present  appeal.   According  to  the
Complainant/respondent No.2 herein – Pawan Gandhi  Charity  Trust  had  been
established in the memory of his son and the Trust had a  land  on  which  a
building was constructed for running a school.  The appellant claims  to  be
the founder President and Managing Trustee  of  the  said  Society  and  the
Trust had a land bearing Survey No. 154/6/1 admeasuring 57  acres  on  which
building in the area of 650 sq. mts. was  constructed.   An  English  Medium
School was started in the building in  2005  known  as  Loyala  School.   In
March, 2008, it was offered to lease out the  said  school  building  for  a
period of 87 years and also to sell other  property  of  the  Trust  to  the
Society.   Based  on  the   negotiations,   two   separate   Memorandum   of
Understandings (MoUs) dated 10.05.2008 were signed between the parties.
7)    It is the claim of the  Complainant-respondent  No.2  herein  that  on
13.05.2008, a lease deed for a period of 35  months  w.e.f.  15.04.2008  was
executed and registered between the parties and it was  agreed  not  to  act
upon the two MoUs.  On the expiry of the lease period  i.e.  on  09.03.2011,
the Society was to handover the possession of  the  said  building  and  the
land to the Trust.
8)    It  is  the  stand  of  the  first  respondent-State  and  the  second
respondent-Complainant that the present appellant made a forgery in  further
lease deed dated 07.03.2011 pertaining to  the  granting  of  lease  for  87
years without the consent of the Complainant.  It is  also  stated  that  on
the  same  date,   the   appellant   also   made   a   forgery   by   making
additions/alterations in the original draft agreement for  lease  which  was
prepared at the time of executing the MoU and got it franked.   It  is  also
their grievance that the document was notarized in the year  2008  and  even
in the said notarized document, forgery was committed by the appellant.   It
is the contention of the  Complainant  that  on  the  basis  of  the  forged
document, the appellant asserted his claim over the property.
9)    During the course of hearing, Mr. Rohtagi, learned senior counsel  for
the appellant by taking us through the MoUs and  lease  deed  and  also  the
corrections in those documents submitted that those  corrections  have  been
made with the consent of the Complainant and according to  him,  no  forgery
has been committed as claimed by  the  respondents.   He  pointed  out  that
inasmuch as the sale deed could not take  place  and  the  property  of  the
Trust could be leased out for a period of more  than  3  years  without  the
permission of the Charity Commissioner, the lease deed for a  period  of  35
months  was  executed  and  registered  as  stop-gap  arrangement  with   an
understanding that the Trust would approach the concerned Assistant  Charity
Commissioner for necessary permission and, thereafter, the lease deed for  a
period of 87 years in respect of the  school  building  and  the  sale  deed
about the larger property could be executed and registered.
10)   In the course of argument, learned counsel  appearing  for  the  State
vehemently opposed  the  claim  of  anticipatory  bail  and  contended  that
custodial interrogation of the appellant is necessary because he has  forged
several documents and also submitted  false  information  to  the  Education
Department while  obtaining  permission  for  running  the  school.   It  is
further pointed out that he has also produced copies of false document.   It
is his claim  that  unless  custodial  interrogation  of  the  appellant  is
granted, it would not be possible to seize all  those  documents  from  him.
In other words, according to the State,  the  appellant  has  committed  not
only the offence of forgery in respect of private documents  but  also  made
false representations and committed offence  of  cheating  by  giving  false
information to the Education Department, thus committed an offence not  only
against the State but also against the public in general.
11)   Like the counsel  appearing  for  the  State,  Mr.  Prashant  Bhushan,
learned  counsel  for  the  second  respondent-Complainant  by  drawing  our
attention to various materials including corrections in  the  documents  and
several communications with the  Educational  Authorities  as  well  as  the
letter dated 04.07.2012 of the Deputy Collector,  Maval  Sub-division,  Pune
addressed to  Senior  Police  Inspector,  Bundgarden  Police  Station,  Pune
submitted that in view of the conduct and  involvement  in  various  heinous
offences, the appellant is not entitled indulgence by  this  Court  for  any
relief.
12)   As observed above, all the three counsel  appearing  for  the  parties
took us through MoUs, lease  deed  and  other  correspondence/communications
with the Educational Authorities  as  well  as  the  report  of  the  Deputy
Collector, Pune, to Senior  Police  Inspector,  Bundgarden  Police  Station,
Pune.  It is also relevant to  point  out  that  all  these  materials  were
scrutinized/analyzed by the Additional Sessions Judge,  Pune  and  the  High
Court while considering the application for anticipatory bail.  It  is  true
that the parties have also approached the Civil Court for  various  reliefs.
At the same time, as pointed out by counsel for the  State  and  the  second
respondent-Complainant,   considering   the    seriousness    relating    to
corrections/additions/alterations made  in  various  documents,  information
furnished to the Educational  Authorities  which,  according  to  them,  are
incorrect, we are of the view that in order to bring out  all  the  material
information  and  documents,  custodial  interrogation  is  required,   more
particularly, to ascertain in respect of the documents  which  were  alleged
to have been forged  and  fabricated.   In  the  said  documents  and  other
materials which are in the possession of the appellant  and  the  allegation
against him  that  he  has  made  false  representation  before  the  Public
Authority  on  the  basis  of  those  documents  for   obtaining   necessary
permission, as pointed out by the State, in order to  secure  possession  of
those documents, custodial interrogation is  necessary.   For  this  reason,
the Additional Sessions Judge and the High  Court  rejected  the  claim  for
anticipatory bail.
13)   In addition to the same, it is stated by the  respondents  that  after
the order of this Court dated 23.09.2011 granting  interim  protection,  the
appellant  has  misused  his  liberty   in   creating   hindrance   to   the
investigation  and  continues  to  scuttle  it  and  also  intimidating  and
pressurizing the Complainant as well as the prosecution witnesses.
14)   In the light of the above  discussion  and  in  view  of  the  mandate
prescribed in Section 438 of the Code, we fully agree  with  the  conclusion
arrived at by the Additional Sessions Judge and the High Court in  rejecting
the relief of anticipatory bail.  Consequently, the  appeal  fails  and  the
same is dismissed.
15)   In view of our order dismissing the  appeal,  the  interim  protection
granted by this Court on 23.09.2011 shall stand vacated  and  the  appellant
is granted two weeks time from today to surrender  and  seek  regular  bail.
It is also made clear that the conclusion arrived at  by  the  courts  below
including the present order relates only to eligibility or otherwise of  the
relief of anticipatory bail and the trial Court is free to decide  the  bail
application de hors to the above observation and  in  accordance  with  law.






                             ...…………….…………………………J.


                                 (P. SATHASIVAM)








                             ..…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
SEPTEMBER 7, 2012.






















|                     |                      |                     |



   -----------------------
12

the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No. 6372  of 2012
                 ( Arising out of SLP (Civil) 1088 of 2010)



M/s Virgo Industries (Eng.) P.Ltd.                 … Appellant(s)

                                   Versus

M/s.Venturetech Solutions P.Ltd.             … Respondent(s)


                                    With

                       CIVIL APPEAL No.  6373 of 2012
                 ( Arising out of SLP (Civil) 1184 of 2010)



                            J  U  D  G  M  E  N T


RANJAN GOGOI, J


      Leave granted.

2.    Both the appeals are directed against the common  judgment  and  order
dated 6.10.2009 passed by the High Court of Madras by which the  High  Court
has refused to interdict the proceedings registered and numbered as OS  Nos.
202 and 203 of 2007 pending in the Court  of  the  learned  District  Judge,
Thiruvallur filed by the respondents herein.

3.    The brief facts that would be required to be noticed for  the  purpose
of the present adjudication may now be recapitulated.

The respondent in the two appeals, as the plaintiff, instituted C.S No.  831
of 2005 and C.S. No. 833 of 2005 before the  Madras  High  Court  seeking  a
decree of permanent injunction restraining the  appellant  (defendant)  from
alienating, encumbering or dealing with the plaint  schedule  properties  to
any other third party other than the plaintiff.  The  aforesaid  relief  was
claimed on the  basis  of  two  agreements  of  sale  entered  into  by  the
plaintiffs and the defendant both on 27.7.2005 in respect of  two  different
parcels of immovable property consisting of land and  superstructures  built
on plot No. 65 (old No.43) and plot No. 66 (old No.42),  Second  Main  Road,
Ambattur Industrial Estate, Chennai. In each  of  the  aforesaid  suits  the
plaintiff had stated that under the agreements  of  sale  different  amounts
were paid to the defendants, yet, on the pretext that  restrictions  on  the
alienation of the suit land were likely to be issued by the  Central  Excise
Department on account  of  pending  revenue  demands,  the  defendants  were
attempting to frustrate the agreements in question. In the  suits  filed  by
the plaintiff it was also  stated that as the period of  six  months   fixed
for execution of the sale deeds under the agreements  in  question  was  not
yet over,  the  plaintiff  is  not  claiming  specific  performance  of  the
agreements. The plaintiff, accordingly, sought leave of the  court  to  omit
to claim the relief of specific performance with  liberty  to  sue  for  the
said relief at a later point  of  time,  if  necessary.  The  two  suits  in
question, i.e., C.S. Nos. 831 and 833 of 2005 were filed  by  the  plaintiff
on 28.8.2005 and 9.9.2005 respectively.

4.    Thereafter on 29.5.2007, O.S. Nos. 202  and  203  were  filed  by  the
plaintiff in the Court of the District Judge, Tiruvallur  seeking  a  decree
against the defendant for execution and registration of the  sale  deeds  in
respect of the same property and for delivery of possession thereof  to  the
plaintiff. In the aforesaid latter suits it was mentioned by  the  plaintiff
that in respect of the same suit property it had  earlier  filed  suit  Nos.
C.S. 831 and 833 of 2005 seeking the relief of permanent injunction. As  the
time for performance of the agreements of sale had  not  elapsed  when  C.S.
No.831 and 833 of 2005 were instituted and  the  plaintiff  was  “under  the
bonafide belief that the defendants would perform the agreement” the  relief
of specific performance was not claimed in the aforesaid suits. However,  as
inspite of a legal notice issued to the defendants on  24.2.2006,  the  sale
deeds had not been executed by the defendant the latter suits  i.e.  O.S.Nos
202 and 203 were instituted.

5.    While the matter was so situated the defendant in both the suits  i.e.
the present petitioner, moved the Madras High Court by filing  two  separate
applications under Article  227  of  the  Constitution  to  strike  off  the
plaints in O.S. Nos. 202 and 203 of 2007 on the ground that  the  provisions
contained in Order II Rule 2 of the Civil Procedure Code,  1908  (for  short
the ‘CPC’) is a bar to the maintainability of both  the  suits.  Before  the
High Court the defendant had contended that the cause  of  action  for  both
sets of suits were the same,  namely,  the  refusal  or  reluctance  of  the
defendant to execute the  sale  deeds  in  terms  of  the  agreements  dated
27.7.2005. Therefore, at the time of filing of the first set of  suits  i.e.
C.S. Nos. 831 and 833 of 2005, it was open for the plaintiff  to  claim  the
relief of specific performance. The plaintiff did not seek the  said  relief
nor was leave granted by the  Madras  High  Court.  In  such  circumstances,
according to the defendant-petitioner, the suits filed by the plaintiff  for
specific performance i.e O.S.  Nos.  202  and  203  were  barred  under  the
provisions of Order II Rules 2 (3) of the CPC.

6.    The High Court, on consideration of the cases of  the  parties  before
it, took the view that on the date of filing of C.S. Nos.  831  and  833  of
2005  the  time  stipulated  in  the  agreements  between  the  parties  for
execution of the sale deeds had not expired. Therefore, the cause of  action
to seek the relief of specific performance had  not  matured.  According  to
the High Court it is only  after  filing  of  the  aforesaid  suits  and  on
failure of the defendants to execute the sale deeds pursuant  to  the  legal
notice dated 24.2.2006 that the  cause  of  action  to  seek  the  aforesaid
relief of specific performance had accrued.  The  High  Court,  accordingly,
took the view that the provisions of Order II Rule 2 (3)  of  the  CPC  were
not attracted to render the subsequent suits filed  by  the  plaintiff  i.e.
O.S. Nos. 202


and 203 non-maintainable. The  High  Court  also  took  the  view  that  the
provisions of Order II Rule 2 (3) of the CPC would render a subsequent  suit
not maintainable, only, if the earlier suit has been decreed  and  the  said
provisions of the CPC will not apply if the first suit remains  pending.  In
arriving at the aforesaid conclusion the learned Single Judge  of  the  High
Court considered himself to be bound by the decision of a Division Bench  of
the same High  Court  in  the  case  of  R.Vimalchand  and  M.Ratanchand  v.
Ramalingam, T.Srinivasalu & T. Venkatesaperumal[1] .  The  High  Court  also
held that though the application filed by the defendant  under  Article  227
of the Constitution was not maintainable as the defendant had the remedy  of
approaching the learned trial court under Order VII  Rule  11  of  the  CPC,
yet, in view of the elaborate discussions that have been made  and  findings
and conclusions recorded it  would  be  appropriate  to  decide  the  issues
raised on merits.  It is the correctness of the aforesaid view of  the  High
Court that has been assailed in the present appeals.
7.     We have heard Mr. C.A.  Sundaram,  learned  senior  counsel  for  the
appellants and Mr. S.Gurukrishna Kumar, learned counsel for the respondent.

8.    The necessary discussions that will have to follow  may  be  initiated
by extracting the provisions of Order II Rule 2 of the CPC:

      “ORDER II


      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.
     
      (3) Omission to sue for one of several reliefs-A  person  entitled  to
      more than one relief in respect of the same cause of  action  may  sue
      for all or any of such reliefs; but if he omits, except with the leave
      of the Court, to sue for all such reliefs, he shall not afterwards sue
      for any relief so omitted.


      Explanation-For  the  purposes  of  this  rule  an  obligation  and  a
      collateral security for its performance and successive claims  arising
      under the same obligation shall be deemed respectively  to  constitute
      but one cause of action.”


9.    Order II Rule 1 requires every suit to include the whole of the  claim
to which the plaintiff is entitled in respect of  any  particular  cause  of
action. However, the plaintiff has an option to relinquish any part  of  his
claim if he chooses to do so. Order  II  Rule  2  contemplates  a  situation
where a plaintiff omits to sue or intentionally relinquishes any portion  of
the claim which he is entitled to make. If the plaintiff so acts,  Order  II
Rule 2 of CPC makes it clear that he shall  not,  afterwards,  sue  for  the
part or portion of the claim that has been omitted or relinquished. It  must
be noticed that Order II  Rule  2  (2)  does  not  contemplate  omission  or
relinquishment of any portion of the plaintiff’s claim  with  the  leave  of
the court so as to entitle him to come back later  to  seek  what  has  been
omitted or relinquished. Such leave of the Court is  contemplated  by  Order
II Rule 2(3) in situations where a plaintiff being  entitled  to  more  than
one relief on a particular cause of  action,  omits  to  sue  for  all  such
reliefs. In such a situation, the plaintiff is  precluded  from  bringing  a
subsequent suit to claim the relief earlier omitted except  in  a  situation
where leave of the Court had been obtained. It is, therefore, clear  from  a
conjoint reading of the provisions of Order II Rule 2 (2)  and  (3)  of  the
CPC that the aforesaid two sub-rules of Order  II  Rule  2  contemplate  two
different situations, namely, where a  plaintiff  omits  or  relinquishes  a
part of a claim which he is  entitled  to  make  and,  secondly,  where  the
plaintiff omits or relinquishes one out  of  the  several  reliefs  that  he
could have claimed in the suit. It is only in the  latter  situations  where
the plaintiff can file a subsequent suit seeking the relief omitted  in  the
earlier suit proved that at the time of omission  to  claim  the  particular
relief he had obtained leave of the Court in the first suit.

10.   The object behind enactment of Order II Rule 2 (2) and (3) of the  CPC
is  not  far  to  seek.  The  Rule  engrafts  a  laudable   principle   that
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. The situations where the bar under Order II  Rule  2
(2) and (3) will be attracted  have  been  enumerated  in  a  long  line  of
decisions spread over a century now. Though each of the aforesaid  decisions
contain a clear and precise narration of the principles of  law  arrived  at
after a detailed analysis, the principles laid down in the judgment  of  the
Constitution Bench of this Court in Gurbux Singh  v.  Bhooralal[2]   may  be
usefully recalled below:

      “In order that a plea of a bar under O. 2. r.  2(3),  Civil  Procedure
      Code should succeed the defendant who raises the plea  must  make  out
      (1) that the second suit was in respect of the same cause of action as
      that on which the previous suit was based, (2) that in respect of that
      cause of action the plaintiff was entitled to more  than  one  relief,
      (3) that being thus entitled to more than one  relief  the  plaintiff,
      without leave obtained from the Court, omitted to sue for  the  relief
      for which the second suit had been filed. From this analysis it  would
      be seen that the defendant would have to establish  primarily  and  to
      start with, the precise cause of action upon which the  previous  suit
      was filed, for unless there is identity between the cause of action on
      which the earlier suit was filed and that on which the  claim  in  the
      later suit is based there would be no scope for the application of the
      bar.”

The above principles have been reiterated  in  several  later  judgments  of
this Court. Reference by way of illustration may be made  to  the  judgments
Deva Ram & Anr. v. Ishwar Chand & Anr.[3] and M/s.  Bengal  Waterproof  Ltd.
v. M/s Bombay Waterproof Manufacturing Co.& Anr.[4]

11.   The cardinal requirement for application of the  provisions  contained
in Order II Rule 2(2) and (3), therefore, is that the  cause  of  action  in
the later suit must be the same as in the first  suit.  It  will  be  wholly
unnecessary to enter into any discourse on the  true  meaning  of  the  said
expression, i.e. cause  of  action,  particularly,  in  view  of  the  clear
enunciation in a recent judgment of this  Court  in  the  Church  of  Christ
Charitable Trust and Educational  Charitable  Society,  represented  by  its
Chairman   v.   Ponniamman   Educational   Trust    represented    by    its
Chairperson/Managing Trustee[5]. The huge number  of  opinions  rendered  on
the  issue  including  the  judicial  pronouncements  available   does   not
fundamentally detract from what is stated  in  Halsbury’s  Law  of  England,
(4th  Edition).  The  following  reference  from  the  above   work   would,
therefore, be apt for being extracted hereinbelow:
      “Cause of Action”  has  been  defined  as  meaning  simply  a  factual
      situation existence of which entitles one person to  obtain  from  the
      Court a remedy against another person. The phrase has been  held  from
      earliest time to include every fact which is material to be proved  to
      entitle the plaintiff to succeed, and every  fact  which  a  defendant
      would have a right to traverse. ‘Cause of action’ has also been  taken
      to mean that particular action the part of the defendant  which  gives
      the plaintiff  his  cause  of  complaint,  or  the  subject-matter  of
      grievance founding the action,  not  merely  the  technical  cause  of
      action."




12.   In the instant case though leave to sue for  the  relief  of  specific
performance at a later stage was claimed by the plaintiff in C.S.  Nos.  831
and 833 of 2005, admittedly, no such leave was granted  by  the  Court.  The
question, therefore, that the Court will have to  address,  in  the  present
case, is whether the cause of action for the first and second set  of  suits
is one and the same. Depending on such answer as the  Court  may  offer  the
rights of the parties will follow.

13.   A reading of the plaints filed in C.S. Nos. 831 and 833 of  2005  show
clear averments to the effect that after  execution  of  the  agreements  of
sale dated 27.7.2005 the plaintiff received a  letter  dated  1.8.2005  from
the defendant conveying the information that the Central  Excise  Department
was contemplating  issuance  of  a  notice  restraining  alienation  of  the
property. The advance amounts paid by the  plaintiff  to  the  defendant  by
cheques were also returned. According to the plaintiff it was  surprised  by
the aforesaid stand of the defendant who had  earlier  represented  that  it
had clear and marketable title to  the  property.  In  paragraph  5  of  the
plaint, it is stated that the encumbrance certificate dated  22.8.2005  made
available to the plaintiff did not inspire confidence of  the  plaintiff  as
the same contained an  entry  dated  1.10.2004.  The  plaintiff,  therefore,
seriously doubted the claim made by the defendant regarding the  proceedings
initiated by the Central Excise Department. In the  aforesaid  paragraph  of
the plaint it was averred by the plaintiff that the  defendant  is  “finding
an excuse to cancel the sale agreement and sell the property to  some  other
third party.”
In the aforesaid paragraph of the plaint, it was  further  stated  that  “in
this background, the plaintiff submits that the defendant is  attempting  to
frustrate the agreement entered into between the parties.”

14.   The averments made by the plaintiff in C.S. Nos. 831 and 833 of  2005,
particularly the pleadings extracted above, leave no room for doubt that  on
the dates when C.S. Nos. 831  and  833  of  2005  were  instituted,  namely,
28.8.2005 and 9.9.2005, the plaintiff itself  had  claimed  that  facts  and
events have occurred which entitled it to contend that the defendant had  no
intention to  honour  the  agreements  dated  27.7.2005.  In  the  aforesaid
situation it was open  for  the  plaintiff  to  incorporate  the  relief  of
specific performance alongwith  the  relief  of  permanent  injunction  that
formed the subject matter of above two suits. The foundation for the  relief
of permanent injunction claimed in the two suits furnished a complete  cause
of action to the plaintiff in C.S. Nos. 831 and 833  to  also  sue  for  the
relief of specific performance. Yet, the said  relief  was  omitted  and  no
leave in this regard was obtained or granted by the Court.

15.   Furthermore, according to the plaintiff, which fact is also stated  in
the plaints filed in C.S. Nos. 831 and 833, on the date when  the  aforesaid
two suits were filed  the  relief  of  specific  performance  was  premature
inasmuch as the time for execution of the sale documents  by  the  defendant
in terms of the agreements dated 27.7.2005 had  not  elapsed.  According  to
the plaintiff, it is only after the expiry of the aforesaid period  of  time
and upon failure of the defendant to execute  the  sale  deeds  despite  the
legal notice dated 24.2.2006 that the cause of action to  claim  the  relief
of specific performance had accrued. The above stand of the plaintiff  found
favour with the High Court. We disagree. A suit claiming a relief  to  which
the plaintiff may become entitled at a subsequent point of time, though  may
be termed as premature, yet, can not per se be dismissed to be presented  on
a future date. There is no universal rule to the above  effect  inasmuch  as
“the question of a suit being premature does not  go  to  the  root  of  the
jurisdiction of the Court” as held by this Court in Vithalbhai (P)  Ltd.  v.
Union Bank of India[6]. In the aforesaid case this Court has taken the  view
that whether a premature suit is required to be  entertained  or  not  is  a
question of discretion and unless “there is a mandatory  bar  created  by  a
statute which disables the plaintiff from filing the suit  on  or  before  a
particular date or the occurrence of a particular  event”,  the  Court  must
weigh and balance the several competing factors  that  are  required  to  be
considered including the question as to whether any useful purpose would  be
served by dismissing the suit as premature as the  same  would  entitle  the
plaintiff to file a fresh suit on a subsequent date. We may usefully add  in
this connection that there is no provision in the Specific Relief Act,  1963
requiring a plaintiff claiming the relief of specific  performance  to  wait
for expiry of the due date for performance of the agreement in  a  situation
where the defendant may have made his intentions clear by his overt acts.

16.   The learned Single Judge of the High Court had  considered,  and  very
rightly, to be bound to follow an earlier Division Bench order in  the  case
of  R.Vimalchand  and  M.Ratanchand  v.  Ramalingam,  T.Srinivasalu   &   T.
Venkatesaperumal (supra) holding that the provisions of Order II Rule  2  of
the CPC would be applicable only when the first suit is disposed of.  As  in
the present case the second set of suits were filed during the  pendency  of
the earlier suits, it was held, on the ratio of the  aforesaid  decision  of
the Division Bench of the High Court, that the provisions of Order II,  Rule
2(3) will not be attracted. Judicial discipline required the learned  Single
Judge of the High Court to come to the aforesaid  conclusion.  However,   we
are unable to agree  with  the  same  in  view  of  the  object  behind  the
enactment of the provisions of Order  II  Rule  2  of  the  CPC  as  already
discussed by us, namely, that Order II Rule 2 of  the  CPC  seeks  to  avoid
multiplicity of litigations on same cause of action. If  that  is  the  true
object of the law, on which we do not entertain any doubt,  the  same  would
not stand fully subserved by holding that the provisions of Order II Rule  2
of the CPC will apply only if the first suit is disposed of  and  not  in  a
situation where the second suit has been filed during the  pendency  of  the
first suit. Rather, Order II, Rule 2 of the  CPC  will  apply  to  both  the
aforesaid situations. Though direct judicial  pronouncements  on  the  issue
are somewhat scarce, we find that  a  similar  view  had  been  taken  in  a
decision of the High Court at Allahabad in Murti v. Bhola Ram[7] and by  the
Bombay High Court in Krishnaji v. Raghunath[8].

17.   In the light of the above discussions we are  of  the  view  that  the
present appeals deserve to be allowed. Accordingly we  allow  the  same  and
set aside the judgment and order dated 6.10.2009 passed by  the  High  Court
of Madras in C.R.P.PD. Nos. 3758 and 3759 of 2007.  Consequently, we  strike
off the plaint in O.S.Nos.202 and 203  of  2007  on  the  file  of  District
Judge, Thiruvallur.
                                             ...……………………J.
                                             [P. SATHASIVAM]


                                             ………………………J.
                                               [RANJAN GOGOI]
New Delhi,
September 07, 2012.


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   -----------------------
[1]    2002 (3) MLJ page 177
[2]    AIR 1964 SC 1810
[3]    1995 (6) SCC 733
[4]    AIR 1997 SC 1398
[5]    JT 2012 (6) SC 149
[6]    2005(4) SCC 315
[7]    (1894) ILR 16 All 165
[8]    AIR 1954 BOM 125



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