CAUSE TITLE:
Suresh Kumar Kankariya Vs. K.Jigibai @ Pushpammal
DATE OF ORDER:
28 April 2022
JUDGE(S):
The Honourable Justice Mr.N.Anand Venkatesh
PARTIES:
Appellant//Plaintiff:Suresh Kumar Kankariya
Respondent//Defendant: K.Jigibai @ Pushpammal
SUBJECT
Second Appeal was filed against the Judgment and Decree passed by the Principal District Judge, reversing the judgement and decree passed by the Subordinate Judge.
IMPORTANT PROVISIONS
THE CODE OF CIVIL PROCEDURE, 1908 (hereinafter as CPC)
Order II Rule 2: Suit to include the whole claim
Example: A rents his flat at a yearly of rent Rs. 5,00,000. The rent for the of the years 2019, 2020 and 2021 was due and unpaid. A sues B in 2022 for the rent due for 2021. A afterwards shall not sue B for the rent due for 2019 or 2021.
Order XLI Rule 33 Power of Court of Appeal
The Appellate Court has the power to pass or make any decree or order which ought to have been passed or made as per the requirements of the case.
OVERVIEW
- The plaintiff entered into a sale agreement with the defendant.The plaintiff paid a sum of money in instalments. The defendant agreed to receive the balance amount from the plaintiff while executing the sale deed in favour of the plaintiff.
- The plaintiff was willing to pay the balance sale consideration and the defendant was evading the execution of the sale deed. Hence, a legal notice was issued to the defendant to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. On receipt of the same, a reply notice was given wherein the defendant denied executing any sale agreement in favour of the plaintiff.
- In the meantime, an attempt was made by the defendant to sell the property to third parties and hence the first suit was filed seeking for the relief of permanent injunction. During the pendency of this suit, the next suit was filed seeking for the relief of specific performance.
- The defendant took a stand that the blank stamp paper was given as a surety to the loan taken from the plaintiff’s father who is a money lender. The signed blank documents were misused and the sale agreement was fabricated by the plaintiff. The defendant also stoutly denied the execution of a receipt as claimed by the plaintiff. Accordingly, the defendant sought for the dismissal of the suit.
ISSUE
- Whether a suit for specific performance was maintainable without seeking a leave under Order 2 Rule 2 of C.P.C?
- Whether the Lower Courts were right to reject the suit for specific performance only on the ground that the same was time barred?
- Whether the findings rendered by the Lower Court be termed as unreasonable due to the improper appreciation of the oral and documentary evidence?
- Where a favourable finding was given in favour of the plaintiff by the Lower Courts even though the relief was denied, whether such findings could be interfered in the Second Appeal even when a Cross Objection was not filed by the successful party? (additional substantial question of law framed by the High Court)
ARGUMENTS BY THE APPELLANT/PLAINTIFF
- The questioning of the finding of the Lower Appellate Court on the issue pertaining to Order II Rule 2 of CPC was objected by the learned counsel for the appellant. The Counsel relied on Supreme Court’s judgement in Pramod Kumar and Another Vs. Zalak Singh [(2019) 6 SCC 621] and many other cases. It was submitted that the respondent has not filed any cross-appeal or cross-objection against the adverse findings of the Lower Appellate Court and hence, the respondent could not be permitted to question the findings of the Lower Appellate Court in the Second Appeal filed by the plaintiff.
- The learned counsel also submitted that Order XLI Rule 33 of CPC could not be invoked in favour of the respondent since the respondent did not satisfy the requirements of the provision and it was not necessary for the Court to invoke the said provision in every other appeal unless the facts of the case warrants the same. For this the Counsel relied on Samudra Devi and others Vs. Narendra Kaur and others [(2008) 9 SCC 100] and other relevant cases.
ARGUMENTS BY THE RESPONDENT/DEFENDANT
- The learned counsel for the defendant questioned the finding of the Lower Appellate Court on the issue pertaining to Order II Rule 2 of CPC. The judgement of Madras High Court in Virgo Industries (Engineers) Private Limited Vs. Venturetech Solutions Private Limited [2020 (6) CTC 29] and many other cases was relied upon.
- The learned counsel also submitted that Order XLI Rule 33 of CPC can be invoked in favour of the respondent. The Counsel relied upon the Madras High Court judgement in Sundararajan and Another Vs. Mahalingam and Others reported in [2009 (6) CTC 169] andmany other cases.
JUDGEMENT ANALYSIS
- The Court in order to render a finding as to whether the subsequent suit filed seeking for the relief of specific performance is barred under Order II Rule 2 of CPC, relied upon the case of State Bank of India Vs. Gracure Pharmaceuticals Ltd. [2013 (6) CTC 789].It was deduced that the plaintiff cannot split up the claim so as to omit one part of the claim and sue for the other if the cause of action is available for all the claims. It was concluded that the subsequent suit filed was barred by Order II Rule 2 of CPC. Keeping in view of the fact that the plaintiff could have claimed the relief of specific performance even when the earlier suit was filed since the cause of action was available. The plaintiff failed to seek for the larger relief and also omitted to take the leave of the Court when the earlier suit was filed seeking for the lesser relief of permanent injunction.
- The High Court found that the Lower Appellate Court dealt with the merits of the case, appreciated the oral and documentary evidence available on record and came to a clear conclusion that receipt is a fabricated document which was created by the plaintiff only to escape from limitation. Therefore, the findings rendered by the Lower Appellate Court on the merits of the case against the plaintiff did not warrant any interference.
- The suit for specific performance was filed after the period of limitation. InK. Murali Vs. M. Mohamed Shaffir [2020 (1) CTC 38]the Article 54 of the Limitation Act was interpreted by the Court. Therefore, the first part of Article 54 applied to the facts of the present case.
- The Court considered the scope of Order XLI Rule 22 CPC that deals with cross-objection. By virtue of Order XLII Rule 1 CPC, the Rules under Order XLI applied even to Second Appeals. The question taken up for consideration was answered in State of A.P. v. B. Ranga Reddy [2020 (1) MWN (Civil) 207: (2020) 15 SCC 681] and various other cases. The Court held that from the judgements it was clear that the necessity to file a cross-appeal or a cross-objection arises only when the impugned decree is partly in favour and partly against the respondent. Where the decree is entirely in favour of the respondent, though there is a finding against the respondent, he need not file a cross-appeal or a cross-objection and the adverse findings can be challenged in the appeal filed by the other party. The decree passed by the Lower Appellate Court was entirely in favour of the respondent and hence the respondent was held entitled to question the adverse findings on the issue of Order II Rule 2 CPC rendered by the Lower Appellate Court, in the Second Appeal filed by the plaintiff.
CONCLUSION
There were no merits in the Second Appeals and consequently both the Second Appeals were liable to be dismissed.As a result, both the Second Appeals were dismissed with costs.
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