K. Jiji Bai @ Pushpammal vs Sureshkumar Kankariya

G. Rajasuria, J.—These two Second Appeals have been focussed by the Defendant animadverting upon the common judgment and decrees dated 30.04.2008 passed by the learned Principal District Judge, Tiruvallur in A.S. Nos. 131 and 132 of 2007 confirming the common judgment and decrees dated 09.08.2007 passed by the learned Subordinate Judge, Tiruvallur in O.S. No. 69 of 2003 and 25 of 2004 respectively.

The parties are referred to here under according to their litigative status and ranking before the Trial Court.

Heard both sides.

The factual matrix lie within a narrow campus as under:

(a) The one and the same Plaintiff viz., Suresh Kumar Kankariya filed two Suits; the first Suit in O.S. No. 69 of 2003 seeking the following reliefs:

- for a permanent injunction restraining the Defendant, her men and agents from selling the suit properties to third parties.

- for costs,

and the second Suit in O.S. No. 25 of 2004 seeking the following reliefs:

- for Specific Performance of the Agreement of Sale dated 14.12.98 by receiving the balance of sale consideration of Rs. 15,000/- by executing the Sale Deed in favour of the Plaintiff and in default on doing so by the Defendant. The Court to execute the Sale Deed in favour of the Plaintiff and handover vacant possession of the suit property.

- for costs.

(extracted as such)

(b) Written Statements were filed by the Defendant in resisting both the Suits.

(c) Whereupon issues were framed. During joint trial, the Plaintiff examined himself as P.W1 along with P.W2 and marked Exs.A1 to A7. On the side of the Defendant, she examined herself as DW1 along with D.W2 and marked Exs.B1 to B5.

(d) Ultimately, the Trial Court decreed both the Suits. As against which, two Appeals were filed by the Defendant for nothing but to be dismissed by the First Appellate Court confirming the common judgment and decrees of the Trial Court.

(e) Challenging and impugning the common judgment and decrees of both the Courts below, these two Second Appeals have been filed on various grounds inter alia to the effect that--

- while filing the first Suit for bare injunction, there was even according to the Plaintiff enough cause of action for filing a Suit for Specific Performance. But that was not done so and in such a case, the filing of the second suit seeking the relief of Specific Performance was clearly hit by Order 2, Rule 2 of CPC Though such a plea was taken in the Written Statement, in the second Suit for Specific Performance, yet the Trial Court had not even framed any issue based on Order 2, Rule 2, Code of Civil Procedure

- The oral and the documentary evidence adduced were not considered by the Appellate Court while disposing of the Appeals.

Accordingly, suggesting almost identical substantial questions of law in the memorandum of Appeals as under, these two Second Appeals have been filed.

a. Even assuming without admitting that Exhibit A-1 alleged Sale Agreement dated 14.12.1998 is true and valid and that the time fixed for performance of the contract expired on 14.12.1999, whether the suit to enforce the same filed on 25.02.2004, is sustainable in law especially since Article 54 of the Limitation Act, 1963 stipulates a period of 3 years for seeking specific performance of the contract, which commences from the date fixed for the performance or if no such date is fixed, when the Plaintiff has notice that performance is refused ?

b. When admittedly the payment under Exhibit A3-receipt is not towards the alleged Sale Agreement under Exhibit A1 dated 14.12.1998, whether the Suit filed on 25.05.2004 is not barred by limitation ?

c. When the burden of proof is upon the Respondent to establish the validity of the suit Sale Agreement and when he has failed to do so whether the Courts below are correct in law in granting decree as prayed for ?

d. When the 1st Appellate Court is bound to render judgment in accordance with Section 96 read with Order 41, Rule 31 of the Code of Civil Procedure, whether the impugned judgment of the Lower Appellate Court rendered in violation of the said provisions, is sustainable in law ?

e. When it is incumbent upon the First Appellate Court to give reasons in respect of its conclusion, whether the Lower Appellate Court is correct in law in simply rendering cursory judgment, without any discussion whatsoever ?

f. When Exhibits B1 to B-4 clearly and categorically establish the transaction relating to purchase of lorry by the brother-in-law of the Appellant, when the fact that blank stamp papers were given for the same, whether the Courts below are correct in law in eschewing the same ?

g. When the Respondent examined as PW1 was clearly ignorant about the execution of the alleged Sale Agreement under Exhibit A1 and he had also admitted about the transaction relating to hire-purchase as alleged by the Appellant, whether the Courts below are correct in law in not considering the same ?"

Apart from the above substantial questions of law, the following substantial question of law was suggested additionally in S.A. No. 1297 of 2008.

h. In the absence of any leave from the Court, whether the subsequent Suit for specific performance is sustainable in law, especially when the earlier Suit for permanent injunction has been filed on the same cause of action ?

(extracted as such)

Based on the available materials, my learned predecessor formulated the following similar set of substantial questions of law in both these Second Appeals:

a. Even assuming without admitting that Exhibit A-1 alleged Sale Agreement dated 14.12.1998 is true and valid and that the time fixed for performance of the contract expired on 14.12.1999, whether the Suit to enforce the same filed on 25.02.2004, is sustainable in law especially since Article 54 of the Limitation Act, 1963 stipulates a period of 3 years for seeking specific performance of the contract, which commences from the date fixed for the performance or if no such date is fixed, when the Plaintiff has notice that performance is refused ?

b. When admittedly the payment under Exhibit A3-Receipt is not towards the alleged Sale Agreement under Exhibit Al dated 14.12.1998, whether the Suit filed on 25.05.2004 is not barred by limitation ?

c. When the burden of proof is upon the Respondent to establish the validity of the suit Sale Agreement and when he has failed to do so whether the Courts below are correct in law in granting decree as prayed for?

and the following additional substantial question of law was formulated in S.A. No. 1297 of 2008.

d. In the absence of any leave from the Court, whether the subsequent Suit for Specific Performance is sustainable in law, especially when the earlier Suit for permanent injunction has been filed on the same cause of action?

(extracted as such)

Heard both sides.

The learned Counsel for the Appellant/Defendant de hors submitting on merits various points, stressed upon the fact that the Appellate Court failed to adhere to the procedure contemplated under law. He also brought my attention to para 15 of the common judgment of the First Appellate Court and stated that except that small para, absolutely there was no reason found set out in the entire common judgment of the First Appellate Court.

The said para No. 15 of the common judgment of the First Appellate Court is extracted here under for ready reference:

On considering the facts and circumstances of this case and the conduct of the Defendant as discussed above, the Plaintiff has proved his case by oral and documentary evidence and he is entitled for decree of Specific Performance and decree for interim injunction against the suit property. These issues are answered accordingly.

A mere poring over and perusal of the said common judgment of the First Appellate Court would unambiguously and unequivocally, obviously and axiomatically make the point clear that throwing to winds the provision under Order 41, Rule 31 of Code of Civil Procedure, the First Appellate Court rendered its judgment.

The duties of the First Appellate Court are found exemplified in the unreported judgment of this Court in Spur Tank Road Filling Station and Anr. v. F. Jayakumar and another, dated 17.7.2009 passed in S.A. No. 888 of 2007 the relevant portion of which would run thus:

The oral evidence and the documentary evidence adduced by both sides have not been discussed, as it ought to have been dealt with by the last Court of fact.

It is trite proposition of law that the First Appellate Court, which happened to be the last Court of fact, to analyse both oral and documentary evidence afresh and arrive at an independent conclusion.

In this case, the judgment of the First Appellate Court, to say the least, is far from satisfactory, as the learned District Judge has totally ignored his responsibility to analyse the oral evidence and also the documentary evidence and arrived at the conclusion.

A mere perusal of the aforesaid judgment would clearly display and demonstrate that if an Appellate Court renders the judgment without adhering to Order 41, Rule 31, Code of Civil Procedure, then it cannot be equated with that of a reasoned judgment and such a judgment has to be set aside.

At one point of time, even the learned Counsel for the Appellant/Defendant would try to put forth his submission that this Court itself might decide on merits the matter, ignoring the mistake committed by the First Appellate Court. Whereupon the learned Counsel for the Plaintiff would submit that once there is an inherent defect noted in the First Appellate Court''s judgment then it might not be proper in the Second Appeal, for the High Court to assume the role of the First Appellate Court and threadbare discuss the oral and documentary evidence as a last Court of facts.

I recollect the following judgments of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal, ;

(ii) Kashmir Singh Vs. Harnam Singh and Another, ;

(iii) State Bank of India and Ors. v. S.N. Goyal 2009 (1) LW 1.

A mere perusal of those judgments would reveal that the Appellate Court should not assume the role of the First Appellate Court and give its own view over and above the views and decisions rendered by the Courts below on facts. Such a legal proposition emerged pre-supposing that the Appellate Court also would apply its mind and discuss the factual issues threadbare. If that be so, then the High Court would not be justified in sitting in judgment over the finding of facts given by both the Courts below.

But here, the First Appellate Court did not discuss the factual position at all and it had simply agreed with the ultimate conclusion of the Trial Court after narrating the case on both sides as well as the grounds of Appeal and dismissed the Appeal cryptically, which is totally antithetical to the spirit of Order 41, Rule 31 of Code of Civil Procedure

I am also of the considered view that if this Court as a First Appellate Court discusses and analyses the evidence and then give its judgment then certainly either of them will lose a right of Appeal, but on the other hand, if the First Appellate Court is directed to discuss the oral and documentary evidence and arrive at a conclusion, then either of them might have a chance of preferring Second Appeal over it.

Even though in the Written Statement filed by the Defendant in the suit for Specific Performance Order 2, Rule 2 of CPC was invoked neither the Trial Court nor the First Appellate Court framed any issue relating to Order 2, Rule 2 of Code of Civil Procedure

I would like to refer to the scope of Order 2, Rule 2 of the CPC as found exemplified in the Apex Court''s decision reported in Alka Gupta Vs. Narender Kumar Gupta, An excerpt from it would run thus:

We may extract Order 2, Rules 1 and 2 of the Code for ready reference:

Frame of Suit.-- Every Suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

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.

The object of Order 2, Rule 2 of the Code is two fold. First is to ensure that no Defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a Plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2, Rule 2 of the Code is to bar a Plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second Suit in regard to other reliefs based on the same cause of action. It does not however bar a second Suit based on a different and distinct cause of action.

This Court in Gurbux Singh v. Bhooralal held: (AIR p. 1812 para 6)

In order that a plea of a bar under Order 2, Rule 2(3) of the CPC should succeed the Defendant who raises the plea must mate 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 latter Suit is based there would be no scope for the application of the bar.

Unless the Defendant pleads the bar under Order 2, Rule 2 of the Code and an issue is framed focussing the parties on that bar to the Suit, obviously the Court cannot examine or reject a Suit on that ground. The pleadings in the earlier Suit should be exhibited or marked by consent or at least admitted by both parties. The Plaintiff should have an opportunity to explain or demonstrate that the second Suit was based on a different cause of action.

A mere perusal of it would clearly evince and evidence that there should be pleadings invoking Order 2, Rule 2 of CPC whereupon the Trial Court is expected to frame an issue on that. Here, even though the Defendant invoked Order 2, Rule 2 of CPC in the Written Statement, the First Appellate Court failed in its duty in framing an issue based on Order 2, Rule 2 of Code of Civil Procedure

Wherefore, I would like to frame an issue as under based on Order 2, Rule 2 of Code of Civil Procedure

Whether the Suit O.S. No. 25 of 2004 for Specific Performance is barred by Order 2, Rule 2 of CPC in view of non-obtention of leave to file such a Suit, while filing the earlier Suit, which was one for bare injunction ?

Relating to the aforesaid new issue, both sides also should be permitted to adduce oral and documentary evidence, at their option before the First Appellate Court itself and both sides also should be given opportunity to argue afresh the matter on all issues.

Accordingly, the substantial question of law No. 3 in both the Second Appeals is decided to the effect that the matter should be remitted back to the First Appellate Court for disposal as per law as it failed to adhere to Order 41, Rule 31 of the Code of Civil Procedure.

In view of having decided the substantial question of law No. 3, the substantial question of law Nos. 1 and 2 in both the Second Appeals and the substantial question of law No. 4 in S.A. No. 1297 of 2008 need not be decided.

In the result, both these Second Appeals are remitted back to the First Appellate Court with a direction to decide the newly framed issue, viz., "Whether the Suit O.S. No. 25 of 2004 for Specific Performance is barred by Order 2, Rule 2 of CPC in view of non-obtention of leave to file such a suit, while filing the earlier Suit, which was one for bare injunction ?", after entertaining oral and documentary evidence relating to it. The First Appellate Court also shall hear the arguments on both sides comprehensively on all the issues and render its judgment strictly in accordance with Order 41, Rule 31 of CPC and not cryptically as it was done earlier.

Accordingly, both the parties are directed to appear before the First Appellate Court on 24.02.2011 and the Appeals shall be disposed of within a period of three months, thereafter. The First Appellate Court is expected to dispose of the matter independently, untrammelled and uninfluenced by any of the observations made by this Court in remitting the matter back to it.

With the above observation, both these Second Appeals are disposed of. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.