Summary
A purchaser under a registered agreement for sale first sued only for an injunction, and later sued for specific performance and to annul the vendor's sale deed in favour of the appellant. The second suit was held not barred by Order II Rule 2 CPC. The purchaser knew of the vendor's refusal before the first suit, but specific performance was then impossible because a Government Order banned registration of sales in the village to anyone except the appellant. The High Court's quashing of that ban after the first suit gave a fresh cause of action, so the restoration of the plaint was upheld, though on different reasoning.
Issues
- Whether a second suit for specific performance and for a declaration that a sale deed is void is barred by Order II Rule 2 CPC, where an earlier suit for permanent injunction is pending.
- Whether pendency of the first suit affects the application of Order II Rule 2.
- How the plaints must be read when deciding an Order VII Rule 11(d) application founded on Order II Rule 2.
- Whether Order II Rule 2 bars a relief to which the plaintiff was entitled but which could not be obtained when the first suit was filed, because of a governmental ban on registration.
Provisions considered
- Order II Rule 2, Code of Civil Procedure, 1908Read as requiring every suit to include the whole claim arising from one and the same cause of action, not every cause of action arising from a transaction. Sub-rule (3) bars a later suit for an omitted relief without leave only where the plaintiff was entitled to, and could actually obtain, that relief on the same cause of action. A relief that becomes available only through a later event rests on a fresh cause of action. (¶¶ 35, 36, 37, 38, 44, 45, 47, 73, 74, 77, 86)
- Order VII Rule 11(d), Code of Civil Procedure, 1908Rejection of a plaint as barred by law must rest on the plaint's averments read as a whole, not on isolated lines or the written statement. When Order II Rule 2 is invoked, both plaints must be read together to see whether the causes of action are identical in substance. (¶¶ 52, 53, 54, 55, 56, 85)
Held
- Order II Rule 2 aims to prevent multiple suits and to protect a person from being vexed twice for the same cause. It requires the whole claim arising from one cause of action to be included in one suit, not all causes of action arising from the same transaction. The test is whether the new claim rests on a distinct cause of action: different evidence indicates different causes, and identity must be in substance, not form. (¶¶ 36, 41, 43, 46, 47)
- A defendant pleading the bar under Order II Rule 2(3) must prove three things: the same cause of action in both suits, the plaintiff's entitlement to more than one relief on it, and omission of the relief without leave. The earlier plaint must be produced in evidence. Being a technical bar, it must be strictly established and cannot rest on inference. (¶¶ 45, 46, 47)
- The stage of the first suit is immaterial. The bar can apply even though the first suit is still pending, since reading in a requirement that it be disposed of would defeat the rule's object. (¶¶ 48, 49, 50, 51)
- Precedents divide according to when the plaintiff learnt of the vendor's refusal to perform. Where the plaintiff knew before the first injunction suit (Virgo Industries, Vurimi Pullarao) the bar applied; where knowledge came later through the defence (Inbasagaran, Rathnavathi) it did not. Here the revocation of the power of attorney, the return of the consideration and the averments in both plaints showed that the plaintiff knew of the refusal and of the sale to the appellant before the first suit. (¶¶ 64, 65, 66, 67, 68, 69, 70)
- Order II Rule 2 bars only relief the plaintiff was entitled to and could actually obtain when the first suit was filed. It does not require a plaintiff to seek a remedy that was then impossible to obtain. Where such relief becomes available because of a later event, that event gives a fresh cause of action. Virgo Industries, which concerned a merely premature claim, was distinguished. (¶¶ 71, 73, 74, 75, 76, 77, 78)
- The Government Order, read with the TNEB letter, was an absolute ban on registering transfers in the village to anyone but the appellant, not a conditional restriction that would permit a conditional decree. A suit for specific performance would therefore have been futile until the High Court quashed the ban in the public interest litigation and disposed of the plaintiff's own writ petition. Those decisions gave rise to a new cause of action for specific performance and for cancelling the appellant's sale deed. (¶¶ 79, 80, 81)
- The appellant's objections failed. The ban did not need to be mentioned in the agreement, the plaintiff's knowledge of the ban at the time of the agreement could not be inferred from the plaints, and the plaints read as a whole did plead the writ proceedings and their outcome. The omission of the decision dates from the cause-of-action paragraph was a technicality. The causes of action and the evidence in the two suits were distinct. (¶¶ 82, 83, 84, 85, 86)
- The High Court was right to restore the plaint, though on different reasoning. Whether the agreement was made in ignorance of the ban and whether the appellant is a bona fide purchaser were left to the trial court on the merits. (¶¶ 87, 88, 89, 90, 91)
Result
Appeals dismissed; the High Court's restoration of the plaint in the second suit (O.S. No. 122 of 2008) and its refusal to recall the ex parte judgment upheld; no opinion expressed on the merits, which are left to the trial court.