- In Suresh Kumar Kankariya vs K. Jigibai @ Pushpammal the Hon’ble Madras HC has observed that when the Court makes adverse findings against a party, it need not file a cross-appeal or a cross-objection to the same when the decree is entirely in favour of such party, these findings can be challenged when an appeal is filed by the judgement-debtor and the Court is entitled to decide the same.
- The case of the petitioner was that he had entered into an agreement for sale with the respondent/defendant on 14-12-1998. According to the sale agreement the total sale consideration was Rs.3,00,000 and the plaintiff had paid a sum of Rs.2,00,000 as an advance. The agreement also provided that the balance sale consideration will be paid within 12 months and on receipt of the same, agreed to register the sale deed in favour of the plaintiff.
- On 15-09-2001, a sum of Rs.85,000 was paid to the defendant and the defendant also agreed to accept the remaining amount of Rs.15,000. It was contended by the appellant that due to this acceptance of consideration the time had been extended. It was also claimed that the defendant was ready and willing to perform his part of the contract, and the defendant was trying to evade the execution of the sale deed and when a legal notice was sent to the defendant, he denied the execution of any sale deed.
- When the defendants had tried to sell the suit property, the plaintiff filed a suit for temporary injunction and during its pendency, also filed a suit for specific performance.
- The defendants had, on the other hand, contended that the signed blank stamp papers had been given as surety by the defendant when her brother in law had purchased a lorry from the plaintiff’s father under hire purchase agreement. Now these documents were being misused by the plaintiff even after the repayment of the money. They also denied the execution of any receipt as had been claimed by the plaintiff.
- The Trial Court had decreed both the suits through a Judgement and Decree dated 9-8-2007. The same was also confirmed in appeal through a judgement and decree dated 30-4-2008. Aggrieved by the same the defendant had filed two second appeals in the HC, after which the matter was remanded to the Lower Appellate Court with the relevant directions. After complying with the same and after the re-appreciation of the oral and documentary evidence and considering the findings of the Trial Court, both the appeals were allowed on 1-2-2012.
- Aggrieved by the same, the plaintiff had filed the instant second appeal.
- In addition to the substantial questions of law that were framed by the HC, an additional question of law was also framed by the Court- Where a favourable finding has been given by the Courts below even though the relief was denied, whether such findings can be interfered with in Second Appeal even when the cross objection has not been filed by the successful party and what would be the scope of invoking Order XLI rule 33 of CPC, while deciding the second appeal, where the jurisdiction is circumscribed by the provisions of section 100 of the Code.
- Relying upon a plethora of judgements like Shri Saurav Jain and Anr vs ABP Design and Anr (2022) CTC and State of Andhra Pradesh vs B. Ranga Reddy (2020) the Hon’ble HC observed that the necessity to file a cross-objection or a cross-appeal would arise only when the impugned decree is partly in favour and partly against the respondent. When the decree is entirely in favour of the respondent, though there is a finding against the respondent, he does not need to file a cross-appeal or a cross-objection and the adverse findings can be challenged in the appeal filed by the adverse party and the Court is entitled to decide the same.
- Applying the aforementioned ratio to the case at hand, the Court observed the decree passed by the Lower Appellate Court, was entirely in favour of the respondent and hence he is entitled to question the adverse findings on the issue of Order 2 Rule 2 CPC (whether the suit for specific performance is maintainable without seeking a leave under Order 2 Rule 2 of CPC when the first suit was filed only seeking the relief of bare injunction?)
- For deciding the issue as to whether the subsequent suit filed to obtain a decree for specific performance is barred under Order 2 Rule 2 of CPC, the Court relied upon the decisions of the Apex Court in State Bank of India vs Gracure Pharmaceutical Ltd (2013) and Coffee Board vs Ramesh Exports Pvt. Ltd (2014) and observed that the plaintiff cannot split up the claim so as to omit one part of it and sue for the other, if the cause of action is available for all the claims. If the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit would be barred. Thus, the Court observed that the suit for specific performance was barred under Order 2 Rule 2 of CPC.
- Relying upon the case of K. Murali vs M. Mohammad Shaffir (2019) the Court also observed that the limitation begins to run from the date the parties have stipulated for the performance of the contract. The Court observed that the receipt produced by the appellants was a fabricated document, and was made only to get an extension on the limitation. Thus, the findings of the lower Court were not interfered with.
- Thus, in light of the aforesaid discussion, the second appeals were rejected.
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