1. The following are the averments contained in the affidavit filed by the petitioners in brief:
1.(a) The defendant/respondent agreed to sell the suit properties to the petitioners and to one S.N. Navaneedhan under a Memorandum of Understanding dated 27.11.2004 for a sum of Rs. 16,80,30,000/- and received a sum of Rs.5 Crores as advance and part of the sale consideration. 2.73 acres out of the properties is residential land and 15 acres 94 cents and 105 sq.ft., classified as industrial land. The defendant assured to shift the machineries, demolish the existing building and make the property a vacant land. The petitioners agreed to purchase the land to sell it as house sites or to sell it in bulk. It was also agreed that the defendant should give the petitioners a power of attorney to approach the authorities for reclassification, for layout approval etc., The defendant did not comply with any of the basic terms of the agreement. The defendant tendered the entire sale price, compensation etc., by Bank Draft. But the defendant evaded receipt of the same with oblique motive. He did not demolish the building. The land has not been reclassified as residential land without which the petitioner could not get lay out approval. The defendant entered into a supplementary Memorandum of Understanding on 20.7.2005 and a Power of Attorney Deed on 27.07.2005.
1.(b) The defendant has not complied with the basic and essential obligations under the Memorandum of Understanding and the supplementary Memorandum of Understanding. The petitioners are entitled to file a suit for specific performance. In the meanwhile, the defendant was attempting to alienate or encumber the suit properties. Such attempt has to be prevented by interim orders and therefore they are constrained to file a suit for permanent injunction. Hence the court may grant leave to file a suit for specific performance later within the period of limitation. Hence leave to file a suit for specific performance may be granted.
2. In the counter filed by the respondent the following is the brief account of allegations:
The petition is not maintainable in law and on facts. It is true that a Memorandum of Understanding was entered into on 18.11.2004 and a supplementary Memorandum of Understanding was entered into on 20.07.2005. But, it is false to state that this respondent did not comply with any of the basic terms of the agreement. It is also incorrect to allege that they tendered the entire sale price, compensation etc., by Demand Draft. The petitioners have to set out proper grounds for leave and prove the same. No such grounds are made out. They have not made out any case. Moreover, even without obtaining any leave, a suit for specific performance has been filed by persons other than the petitioners herein. The person by name R. Panneerselvam, who has filed the suit for specific performance has even made allegations as against his alleged assignor R. Ramajayam to the effect that the said R. Ramajayam is colluding with the respondent. Having made such a false allegations it is not open to the other petitioners to continue the petition with the participation of R. Ramajayam. Hence the petition may be dismissed.
3. After hearing both sides, the learned Principal Subordinate Judge, Coimbatore, has dismissed the application by observing that the petitioners have not assigned any reasons, for what reasons they filed a suit for specific performance and that sufficient and proper reasons have not been mentioned for filing the suit for injunction at the first instance and they have not made out any case for grant of leave under Order 2 Rule 2(3) of C.P.C.
4. Both the parties entered into a Memorandum of Understanding on 18.11.2004 by means of which the defendant agreed to sell its properties to the 1,3 and 4 petitioners one S.N. Navaneedhan for a sum of Rs.16,80,30,000/-. The defendant received Rs.4,77,00,000/- by 20 Demand Drafts and Rs.23,00,000/- by way of a cheque. Inter alia, it was agreed by the respondent in clause 13 of the Memorandum of Understanding as follows:
"13. Simultaneously on signing of this Memorandum of Understanding, the Vendor has agreed to grant a special Power of Attorney in favour of either one or more of the Purchasers (if it is more than one, the Power of Attorney shall be a joint one) for the purpose of their making necessary applications to Government of Tamil Nadu for converting the presently classified industrial land into residential land and also for the purpose of enabling the Purchasers to make a lay out of the entire piece of land of 18 Acres 67 cents and 105 Sq.ft. To make necessary applications to the appropriate authorities for getting the lay-out sanctioned. It is clearly understood that the Special Power of Attorney to be granted by the Vendor on signing of this Memorandum of Understanding shall confine itself only to this area and as such, the special Power of Attorney shall not confer any further or other right or power, over the said land to the Purchasers or their Agents."
5. Since the petitioners apprehended that the defendant has made hectic efforts to alienate the properties to third parties with a view to defeat and delay their lawful rights, they filed the present suit in O.S.No.705 of 2007 on the file of the Principal Subordinate Court, Coimbatore, for a permanent injunction restraining the defendant from alienating or encumbering the suit properties. Subsequently, petitioners 2 to 4 and one Pannerselvam have filed a suit for specific performance in O.S.No.709 of 2008 on the file of the District Judge, Coimbatore, seeking for specific performance of contract, directing the defendant to execute the sale deed over the suit properties in their favour on the strength of the Memorandum of Understanding dated 18.11.2004 and supplementary Memorandum of Understanding dated 20.07.2005 or in the alternative, directing them to pay a sum of Rs.10,06,66,332/- with interest and also for creating a statutory charge over the suit properties under
Section 55(d) of the Transfer of Property Act.
6. Of course, the filing of the suit in O.S.No.709 of 2008 has not been mentioned in the affidavit. Now the petitioners seek leave under Order 2 Rule 2(3) of C.P.C to grant leave to file suit for specific performance of contract on a later occasion, however, within the period of limitation. Order 2, Rule 2(3) reads as follows:
"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.
Explantion :- For the purpose 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"
7. Rule 2 (1) in Order 2 enables the plaintiff to relinquish any portion of the claim, so as to bring the same within the jurisdiction of the Court and Rule 2 (2) of Order 2 contemplates that if the plaintiff has omitted 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. As for Rule 3 of Order 2, the provision provides that if, in case, the plaintiff omits to pray for any relief with the leave of the Court he may sue on a subsequent occasion for such reliefs.
8. As far as the facts of the present case are concerned, there is no specific mention in the counter that the proposed suit will be barred by time. There is no argument on that point from both sides before this Court. In this context, if the plaintiffs intend to prefer a suit on a later point of time and when no mala fides are pleaded nor shown, the Memorandum of Understanding being admitted by the respondent, there is no embargo for the Court to grant leave. By grant of such leave, the defence of the respondents would in no way be curtailed. It is pertinent to note that the rule does not speak about what could be the valid grounds to seek such a relief by the plaintiff. To put it differently, it can be stated that the rule does not require any grounds to be established by the plaintiff for his omission to pray for the relief in the earlier suit. The term employed in the provision is "omits". Had the legislature intended to impose any conditions or requirements in the provision for consideration of the Court earlier to the grant of such leave to the plaintiff, it would have been incorporated in the provision and the absence of such statutory requirement in the rule leads to a definite conclusion that the plaintiff may satisfy the Court that he omitted to include the prayer in the earlier suit and on such satisfaction the Court can grant the leave.
9. Mr. T.R. Rajagopalan, learned Senior Counsel for the petitioners would contend that the Court below is not correct in observing that the petitioners have not assigned appropriate reasons and reasons must come under exceptional circumstances beyond the contract.
10. Repelling the above contention, Mr.AL. Somayaji, learned Senior Counsel, appearing for the respondent would argue that the grant of leave under Order 2 Rule 2(3) CPC could not be claimed as a matter of right. For this proposition, he placed reliance upon a decision of the Supreme Court of India in 2007 (3) CTC 767 [Kandapazha Nadar v. Chitraganiammal and others] wherein the Honourable Supreme Court has held that different matters are relatable to provisions contained order 23 Rule 1, Order 23 Rule 1 deals about the withdrawal of suit or abandonment of part of claim and the plaintiff cannot seek a relief under rule 3 of order 2 as a matter of right.
11. As far as the facts of the present case are concerned, at the time of filing in O.S.No.705 of 2007 as per the allegations in the plaint they apprehended that the defendant was making arrangements to alienate the properties to third parties and the cause of action for the suit for specific performance of contract might not have arisen.
12. To get enlightened and have a clarification on this subject, this Court follows the principles laid down in a decision of the Apex Court in (1993) 3 Supreme Court Cases 123 [Inacio Martins v. Narayan hari Naik and others] which are as follows:
"6. ... ... ... ... Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the Court's assistance to be restored to possession. Therefore, the subsequent suit was based on a distincet cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject-matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent suit was not identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code."
13. From the above said illuminating proposition of law, it has to be observed that when both the earlier suit and the proposed suit are based on different causes of action and in this regard if the court is satisfied, then the leave under Order 2 Rule 2(3) could be granted. Prior to grant of leave, the Court shall ensure that the future suit will have a distinct and independent cause of action which is not at all identical to the one in the earlier suit.
14. As far as the facts of the present case are concerned, as adverted to supra, the cause of action is different, that is the apprehension in the minds of the petitioners as to alienation of the suit properties by the respondent and the cause of action in the subsequent suit will be prayer for specific performance of contract and both the causes of action are entirely different and the grant of leave could positively to be considered. Such leave ought to be granted.
15. In the light of the above said observations following the principles laid down by the Apex Court, it is held that there is no impediment in granting the leave as sought for by the plaintiffs. Hence the order passed by the Court below is liable to be set aside and accordingly it is set aside. The Civil Revision Petition deserves to be allowed.
16. In fine the Civil Revision Petition is allowed. No costs. Connected M.P. is closed.
ggs To The Principal Subordinate Judge, Coimbatore CRP PD Nos.726 and 727 of 2009
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S.PALANIVELU, J.
This case is posted today under the caption "For being mentioned".
2.Heard the learned counsel for both sides.
3.The learned counsel for the respondent would state that at the time of arguments in the CRP, the other side counsel represented that the Advocate Commissioner need not be appointed.
4.The learned counsel for the petitioner Mr.D.Ravichandran would submit that the Advocate Commissioner need not be appointed at this stage and that liberty may be afforded to the petitioner to put forth the identical prayer in the suit for specific performance of contract.
5.Recording the statement of learned counsel for both sides, the CRP No.727 of 2009 is dismissed recalling the earlier order dated 07.07.2009 and the liberty as prayed for by the petitioner is also granted.
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