Case Note & Summary
The dispute arose from an agreement for sale dated 24.01.2007 between M/s Chemplast Cuddalore Vinyls Limited (respondent no.1/original plaintiff) and Mrs. Senthamizh Selvi (respondent no.2/original defendant no.1) for a property in Thiyagavalli, Cuddalore. The plaintiff paid the full consideration and was put in possession. However, the defendant no.1 later revoked the power of attorney and attempted to return the money. Meanwhile, the plaintiff faced interference from Cuddalore Powergen Corporation Ltd. (appellant/original defendant no.2), which claimed to have purchased the same property from defendant no.1. On 16.02.2008, the plaintiff filed a suit (O.S. No. 28 of 2008) for permanent injunction against the appellant and defendant no.1 to protect its possession. Subsequently, on 05.03.2008, the Madras High Court quashed a government order that had restricted registration of properties in the area, removing the impediment to registration. Thereafter, on 05.05.2008, the plaintiff filed a second suit (O.S. No. 122 of 2008) for specific performance of the agreement for sale. The trial court dismissed the second suit as barred under Order II Rule 2 CPC, but the High Court in second appeal reversed that decision, holding that the bar did not apply because the relief of specific performance was not available at the time of the first suit due to the government order. The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the trial court's dismissal. The Court held that the plaintiff was entitled to the relief of specific performance at the time of the first suit, even though registration was temporarily obstructed by the government order. The entitlement to relief, not its immediate availability, triggers the bar under Order II Rule 2 CPC. The Court emphasized that the plaints must be read as a whole, and the cause of action for both suits was the same agreement for sale. Therefore, the subsequent suit for specific performance was barred, and the plaint was liable to be rejected under Order VII Rule 11(d) CPC.
Headnote
A) Civil Procedure - Order II Rule 2 CPC - Bar on Subsequent Suit - The principle underlying Order II Rule 2 CPC is that a plaintiff must include the whole claim arising from the same cause of action in one suit, and failure to do so bars a subsequent suit for the omitted part of the claim. The court held that the bar applies even if the first suit is pending and its stage is immaterial. (Paras 27-43) B) Civil Procedure - Order II Rule 2 CPC - Rejection of Plaint under Order VII Rule 11(d) CPC - The court held that for determining the applicability of the bar under Order II Rule 2 CPC for rejection of plaint under Order VII Rule 11(d) CPC, the plaints in both suits must be read as a whole to ascertain whether the cause of action and reliefs are the same. (Paras 44-46) C) Specific Performance - Permanent Injunction - Order II Rule 2 CPC - The court held that when a plaintiff files a suit for permanent injunction based on possession under an agreement for sale, the relief of specific performance is also available and the plaintiff is entitled to it. Failure to claim specific performance in the first suit bars a subsequent suit for specific performance under Order II Rule 2 CPC. (Paras 47-62) D) Civil Procedure - Order II Rule 2 CPC - Entitlement to Relief - The court distinguished between 'entitlement to' and 'availability of' relief, holding that the bar under Order II Rule 2 CPC applies when the plaintiff was entitled to the relief at the time of the first suit, even if the relief was not yet available due to some impediment. (Paras 63-77)
Issue of Consideration
Whether the subsequent suit for specific performance of contract is barred under Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) when the plaintiff had earlier filed a suit for permanent injunction without claiming the relief of specific performance, and whether the plaint in the subsequent suit is liable to be rejected under Order VII Rule 11(d) CPC.
Final Decision
The Supreme Court allowed the appeals, set aside the impugned judgment and order of the Madras High Court dated 01.09.2016 and 30.06.2016, and restored the order of the trial court dismissing the suit O.S. No. 122 of 2008 as barred under Order II Rule 2 CPC.
Law Points
- Order II Rule 2 CPC
- Bar on subsequent suit
- Rejection of plaint under Order VII Rule 11(d) CPC
- Specific performance
- Permanent injunction
- Cause of action
- Entitlement to relief
- Availability of relief
