Jagraj Singh vs Baljit Singh and Others

R.L. Anand, J.—Jagraj Singh son of Chuhar Singh, resident of village Pohrke, Tehsil and District Sirsa, has filed the present revision petition under Article 227 of the Constitution of India for issuance of an appropriate order/direction for setting aside the impugned judgment (Annexure 4) and decree (Annexure p5) dated 2.4.1996 passed by the Court of Additional District Judge, Sirsa, and judgment (Annexure P2) and decree (Annexure P3) dated 31.5.1993 passed by the Court of Senior Sub Judge, Sirsa, as, according to the petitioner, the same are without jurisdiction and against the expressed statutory provisions as contained under Order 2 Rule 2, C.P.C., and that the said annexures have been passed in an arbitrary, wrong and illegal manner and it amounts to abuse of the process of law.

Brief facts of the case are that Baljit Singh filed a suit for possession by way of specific performance of agreement on 22.8.1989 against Chuhar Singh, father of the present petitioner, and claimed a decree for possession on the basis of agreement of sale dated 16.1.1989 and the case set up by Baljit Singh was that Chuhar Singh agreed to sell the suit land for a sum of Rs. 40,375/- and he received a sum of Rs. 15,000/- by way of earnest money. The remaining sale consideration was to be paid before the Sub Registrar at the time of the execution and registration of the sale deed and the date of registration of the sale deed was fixed to be 4.5.1989. The vendor did not honour the terms of the agreement dated 16.1.1989 in spite of the fact that the vendee was ready and willing to perform his part of the contract. The suit was contested by the vendor Chuhar Singh on various pleas and ultimately after a full length trial, the suit for possession by way of specific performance was decreed by the trial Court on 31.5.1993 vide Annexures P2 and P3. The defendant-Chuhar Singh went up in appeal before the Court of Additional District Judge, Sirsa, who affirmed the judgment and decree of the trial Court vide Annexures P4 and P5 dated 2.4.1996.

Earlier to the filing of the suit for possession by way of specific performance on 22.8.1989, the vendee-Baljit Singh also filed a suit for permanent injunction restraining the vendor Chuhar Singh from alienating the land agreed to be sold on the basis of the agreement dated 16.1.1989. The earlier suit for injunction was filed-on 27.4.1989 before the date of performance of the agreement, which was 4.5.1989.

The grouse of the present petitioner is that the suit for possession by way of specific performance was barred under the provisions of Order 2 Rule 2, C.P.C., as the vendee failed to claim that relief in the suit for injunction filed by him on 27.4.1989 and, consequently, Annexures P2 and P3 passed by the Court of Senior Sub Judge, Sirsa, and Annexures P4 and P5 passed by the Court of Additional District Judge, Sirsa, are nullity in the eyes of law.

It may be highlighted here that the defendant did not challenge the judgment and decree dated 2 .4.1996 passed by the Court of Additional District Judge, Sirsa, in any regular second appeal. Rather the present petitioner Jagraj Singh, son of the vendor, has come in the present revision petition to challenge the orders Annexures P2, P3, P4 and P5. The revision petition has been contested by vendee-Baljit Singh on various pleas, which I will presently deal with in the subsequent portion of this judgment.

I have heard Dr. Gurmit Singh, Advocate, on behalf of the petitioner, and Sarvshri O.P. Sharma and Rajiv Sharma, Advocates on behalf of contesting respondent No.1 Baljit Singh, and with their assistance have gone through the record of this case.

Dr.Gurmit Singh, Advocate, has drawn my attention to the copy of the plaint dated 26.4.1989 (Annexure A-1) and submitted that in para No.2 of the plaint. Baljit Singh plaintiff categorically alleged that defendant Chuhar Singh was legally bound to perform his part of the contract dated 16.1.1989, i.e., to execute and get registered the sale deed on or before 21.5.1989 in his favour as per the terms and conditions of that agreement for sale. Therefore, Baljit Singh could only file the suit for possession by way of specific performance in case he wanted to assert his rights under the agreement dated 16.1.1989. Since he has not done so, and had opted to file a suit for permanent injunction, therefore, the subsequent suit for specific performance dated 22.8.1989 was barred under the provisions of Order 2 Rule 2, C.P.C., and this is a patent illegality in the eyes of law, which has not been taken care of both by the trial Court as well as the first appellate Court and in these circumstances the High Court under Article 227 can look into that aspect of the case and can declare that the judgment and decree dated 2.4.1996 is nullity in the eyes of law. The submission raised by learned counsel for the petitioner is devoid of any merit. At the cost of repetition I may mention that Chuhar Singh defendant of the earlier suits did not prefer any regular second appeal u/s 100 C.P.C. against the judgment and decree dated 2.4.1996. The case set up by the present petition is that the suit for specific performance was barred under Order 2 Rule 2, C.P.C. and the decree for possession could not be passed. This objection, if open to the judgment debtor-Chuhar Singh could be successfully taken by him, in the regular second appeal, had he opted to file the same. Since he has not adopted that remedy, he has cleverly put his son Jagraj Singh in front in order to give a contest to the judgment and decree dated 2.4.1996 in the present revision petition.

Now the question arises whether under Article 227 of the Constitution of India, the High Court should exercise its power of superintendence, and whether the facts of the case make out a case for interference on the part of this Court or not. In Bathutmal Raichand Oswal v. Laxmibai R. Tarte and Anr., A.I.R 1975 Supreme Court 1297, it was held as under:-

"The power of superintendency of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate Court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it."

The ratio of the above authority is fully applicable to the facts in hand. Chuhar Singh-defendant has not given any challenge to the judgment and decree passed by the competent Court of jurisdiction by way of filing a regular second appeal, but instead has adopted a method not warranted by law by putting his son, who has filed the present revision petition. Even otherwise the plea of Order 2 Rule 2, C.P.C., was taken by the vendor in the subsequent suit for possession by way of specific performance of the agreement and this was the subject matter of issue No.3. After discussing the rival contentions of the parties, both the Courts below held that the subsequent suit was not barred under Order 2 Rule 2 C.P.C. Assuming for the sake of argument that this issue was wrongly decided by the Courts below against the vendor of the agreement, still the remedy lay in filing the R.S.A. and not in the revision petition. The High Court would stay its hand in invoking the provisions of Article 227 of the Constitution of India in such cases.

Order 2 Rule 2, C.P.C, lays down as follows :-

"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 after wards 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."

The object of this rule is that litigation must end for all times to come and the fate of a defendant should not be allowed to hang over in balance on account of uncertainty. In this regard I would like to refer to the agreement of sale executed between the vendor and the vendee on 16.1.1989 and the relevant words for the due performance of the agreement are that the sale deed would be executed by 4.5.1989; meaning thereby that the vendee gets the cause of action for filing a suit for specific performance on 4.5.1989. The contention of the learned counsel for the petitioner was that in the suit for injunction the vendee had alleged that the vendor was to get the sale deed registered on or before 4.5.1989 and that this suit was instituted on 27.4.1989, therefore, the subsequent suit for specific performance filed in the month of August 1989 was hit under Order 2 Rule 2, C.P.C.

The argument is devoid of any merit. The averment in para No.2 of the plaint has to be read, along with the operative recital of the agreement, which specifically lays down that sale deed was to be executed by 4.5.1989. Otherwise also, the argument of Dr. Gurmit Singh does not hold water. If the interpretation of Dr. Gurmit Singh is accepted then it would amount to that the suit for specific performance ought to have been filed immediately with the execution of the agreement on 16.1.1989 or immediately thereafter. I have to see the intention of the parties, which was that the vendor agreed to execute the sale deed upto 4.5.1989 and prior to that he backed out and wanted to alienate the property to the third persons and for that reason the vendee had to file the suit for injunction in the month of April 1989 because he could still wait upto 4.5.1989 to see as to whether his vendor was ready and willing to perform his part of the contract or not and it was not obligatory on the part of the vendee to file the suit for specific performance straightaway. He could file a suit for injunction praying to the Civil Court that his vendor may be restrained to alienate the agreed property in order to avoid multiplicity of cases. Para No.5 of the plaint of the suit for injunction squarely shows that the vendee had alleged regarding the cause of action and had stated that it arose to him about a week back when he came to know about the evil and nefarious designs of the defendant and accrued finally on 24.4.1989 when the defendant refused to the request of the plaintiff not to dispose of the property. Thus there was independent cause of action for the plaintiff when he filed the suit for injunction and, in fact, he could file the suit for specific performance after 4.5.1989, which was the last date for performance of the agreement of sale. In Smt. Bhagwan Kaur Vs. Shri Harinder Pal Singh, it was held by a Division Bench of this Court that before invoking the provisions of Order 2 Rule 2, C.P.C., it has to be shown by the contesting defendant that the right claimed by the plaintiff in both the suits must be the same. Their Lordships were pleased to hold in paras 6, 7 and 8 of the judgment that when a vendee earlier filed a suit for specific performance on the basis of the agreement of sale, such subsequent suit is not barred under Order 2 Rule 2, C.P.C because the foundation for claim of specific performance was not the same as in the earlier suit restraining the defendant from alienating the property. The plea taken up by the defendant in the earlier suit seeking injunction, relief of specific performance, had not been claimed was held to be untenable. This authority is again applicable to the facts in hand. By filing the earlier suit for injunction, the vendee was not precluded from filing the suit for specific performance subsequently because the cause of action for specific performance was independent than that of the suit for injunction. Also it was held in Lacha Mal Sardari Mal v. Hirde Nath and Ors that a plaintiff who sues for a relief which the ourts cannot grant him, is not debarred from subsequently bringing a suit in respect of a relief which the Courts can grant him. In the light of the above authorities, the argument which were raised by the learned counsel for the petitioner, Dr. Gurmit Singh, cannot be accepted.

The learned counsel for the petitioner, however, has relied upon Bhag Ram and Others Vs. Pala Singh and Others, , and submitted the second suit of the vendee was barred under Order 2 Rule 2, C.P.C, as he failed to join all the reliefs in the earlier suit for injunction. This authority is again distinguishable on facts. Firstly, the learned Judge was pleased to consider the defence of order 2 Rule 2, C.P.C. in the regular second appeal and not in the writ Jurisdiction. Secondly, this authority of the learned Single Judge cannot get preference to the judgment of the learned Division Bench of this Court, referred to above; and thirdly, this Court would be very slow in invoking the provisions of Article 227 of the Constitution of India because its object is to keep all the inferior Courts within the bounds of their authority and to see that they do which their duty requires them to do and that they do it in a legal manner. The powers of superintendence vested in the High Court under Article 227 of the Constitution of India are not merely administrative but also judicial. The exercise of power is, however, in the discretion of the High Court and the power being one in the nature of extraordinary jurisdiction is to be exercised sparingly and with caution. Thus even though the words used in Article 227 of the Constitution of India impose no limit on the exercise of the power, the High Court may in its discretion refuse to exercise its extraordinary jurisdiction except in cases which disclose some grave and patent error, not otherwise t6 be remedied. The petitioner or his father could very well invoke the provisions of Section 100, C.P.C. and could give challenge to the judgments and decrees of the trial Court as well as the first appellate Court. They have not opted to do so for the reasons best known to them. Their present move under Article 227 of the Constitution of India was wholly misplaced and misconceived and could not be allowed. The valid decrees which have not been challenged on a valid platform, cannot be allowed to be disturbed by invoking the provisions of Article 227 of the Constitution of India, for which the petitioner Jagraj Singh has failed to make out any case.

Resultantly, I see no merit in the present revision petition, which is hereby dismissed with costs. The counsel''s fee is assessed at Rs. 500/-.