REPORTABLE IN THE SUPREME COURT OF INDIA …

1 1 REPORTABLEIN THE SUPREME COURT OF INDIACIVIL appellate JURISDICTIONCIVIL APPEAL OF 2018[Arising out of SLP (C) of 2014]Sucha Singh Sodhi (D) Thr. LRs.. Appellant(s)VersusBaldev Raj Walia & Anr.. Respondent(s)J U D G M E N TAbhay Manohar Sapre, )Leave )This appeal arises from the final judgment andorder dated passed by the High COURT ofDelhi at New Delhi in RFA of 2012 whereby2the Single Judge of the High COURT dismissed theappeal filed by the appellants herein and upheld thejudgment and order dated passed by theAdditional District Judge, Tis Hazari Courts, Delhi inSuit of 2008 by which the suit of theappellants was dismissed by taking recourse to thepowers under Order VII Rule 11 of the Code of CivilProcedure, 1908 (hereinafter referred to as theCode ). 3)In order to appreciate the short legal issueinvolved in the appeal, few relevant facts, which lie ina narrow compass, need to be )Appellants are the plaintiffs whereas therespondents are the defendants in the civil suit out ofwhich this appeal )On , Sucha Singh(original plaintiff)since dead and now being represented by his legalrepresentatives (appellant to 4 herein) filed asuit being civil Suit against in the COURT of Senior civil Judge, Delhi.

2 Thesuit was filed only for grant of permanent )The plaint was founded on the allegations, interalia, that respondent was the owner of thehouse, , basement and half of the first floor of thepremises in plot , Gali situated at SanwarNagar Post Office Raipur Khurd, New Delhi, asdetailed in the plaint (Annexure-P-2) (hereinafterreferred to as the suit premises ). Respondent ,on , agreed to sell the suit premises toSucha Singh (Plaintiff) for ,50,000/- and out ofthe total amount, Sucha Singh paid a sum ,00,000/- by way of advance to respondent cheque. 7)It was further averred that Sucha Singh wasplaced in possession of the suit premises inFebruary, 1996. It was alleged that in May, 1996respondent demanded more money from SuchaSingh pursuant to which Sucha Singh further ,000/- in cash to respondent 8)It was alleged that on , threatened to dispossess Sucha Singh from thesuit premises and made unsuccessful attempt todispossess him with the help of henchmen (Para 13of the plaint).

3 9)It is on this cause of action, Sucha Singh filed acivil suit for permanent injunction on respondent in relation to the suit5premises restraining him from interfering with hispossession over the suit )Respondent filed the written statement,inter alia, alleging therein that he has alreadytransferred the suit premises to respondent and, therefore, the remedy of plaintiff-SuchaSingh, if any, would be to file a civil suit for specificperformance of the agreement against but not in prosecuting the suit for )On , Sucha Singh (plaintiff) made astatement in the COURT that he wants to withdraw thecivil suit. He also made a statement that he iswithdrawing the civil suit with a view to fileproceedings before the competent forum to claimappropriate relief against respondent )The Trial COURT , on , allowed theoriginal plaintiff (Sucha Singh) to withdraw the civilsuit and passed the following order: It is submitted by the counsel for plaintiffthat he wants to withdraw the suit from thiscourt to be filed before the appropriateforum.

4 Counsel for defendant has noobjection for withdrawal of the suit by theplaintiff, however asking for cost of both the parties have beenrecorded separately. Parties shall be boundby their statements as their undertakings inthe COURT . I have perused the records of the file andstatements of both the parties. The plaintiffis allowed to withdraw the suit subject tocost of to be paid to the paid in the COURT . After completion filebe consigned to Record Room. (ARCHANA SINHA) civil JUDGE, DELHI. 13)On , Sucha Singh, filed civil of 1999 (Re-numbered as Suit of 2008)in the COURT of Additional District Judge, Tis HazariCourts, Delhi against respondent for specific7performance of the agreement dated InPara 13, the plaintiff stated the facts for constitutingthe accrual of cause of action for filing the suit forspecific performance of the )Respondent the alleged subsequentpurchaser filed an application under Order 1 Rule 10of the Code to become a party (defendant) in the application was allowed and respondent arrayed as defendant No.

5 2. 15)Both the respondents (defendants and 2)filed their written statement and denied the plaintiff'sclaim on various grounds on facts and in also filed an application underOrder 7 Rule 11 of the Code for rejection of theplaint. 16)It was, inter alia, alleged that the suit inquestion (specific performance of agreement) is hit by8the provisions of Order 2 Rule 2 of the Code becausethe relief of specific performance, which is claimed inthe present suit could be and ought to have beenclaimed by the plaintiff - Sucha Singh in thepreviously instituted suit which he had filed forpermanent injunction. It was contended thatnon-claiming of relief of specific performance of theagreement in the previously instituted suit thoughavailable to the plaintiff for being claimed on thecause of action pleaded in the previous suit wouldattract the bar contained in Order 2 Rule 2 of theCode to the subsequently instituted civil suit whereina relief of specific performance of agreement isclaimed and, therefore, such suit cannot be now triedon )During the pendency of the suit, Sucha Singhdied on and his legal representatives9(appellants herein) were brought on record asplaintiffs to continue the lis.

6 The appellants(plaintiffs) opposed the application filed by (respondent herein) and contended thatthe suit for specific performance of agreement ismaintainable and not barred by Order 2 Rule 2 of theCode. 18)The Trial COURT , however, by order allowed respondent 's applicationand, in consequence, dismissed the appellants suitholding that it is barred by the provisions of Order 2 Rule 2 of the Code. In other words, the Trial Courtheld that the plaintiffs ought to have claimed therelief of specific performance of the agreement in theprevious suit, which was filed by Sucha Singh(original plaintiff) for permanent injunction because10according to the Trial COURT such relief was availablefor being claimed when the first suit was filed. 19)The plaintiffs felt aggrieved and filed appealbefore the High COURT of Delhi. By impugnedjudgment, the High COURT while concurring with thereasoning and the conclusion of the Trial Courtdismissed the appeal.

7 Against the said judgment, theplaintiffs felt aggrieved and have filed the presentappeal by way of special leave in this )Heard Mr. Bhim Sain Jain, learned counsel forthe appellants, Mr. Jayant Bhushan, learned seniorcounsel for respondent and Mr. Pramod Dayal,learned counsel for respondent )Having heard the learned counsel for the partiesand on perusal of the record of the case, we areinclined to allow the appeal and while setting asidethe judgment and order of the High COURT and the11 Trial COURT , dismiss the application filed byrespondent (defendant No. 2) under Order 7 Rule 11 of CPC and restore the civil suit of1999 (re-numbered as Suit ) filed by theappellants herein against the respondents out ofwhich this appeal arises for being tried on merits inaccordance with )In our considered opinion, the Trial COURT andthe High COURT erred in allowing the application filedby respondent under Order 7 Rule 11 of theCode and thereby erred in dismissing the suit asbeing barred by the provisions of Order 2 Rule 2 ofthe Code by taking recourse to the provisions ofOrder 7 Rule 11 of the Code.

8 In our opinion, theprovisions of Order 2 Rule 2 of the Code are notattracted to the facts of this case and, therefore, civil12suit should not have been dismissed as being barredunder Order 2 Rule 2 of the )Order 2 Rule 2 of the Code reads as under: 2. Suit to include the whole claim (1)Every suit shall include the whole of theclaim which the plaintiff is entitled to makein respect of the cause of action, but aplaintiff may relinquish any portion of hisclaim in order to bring the suit within thejurisdiction of any COURT .(2) Relinquishment of part of claim Where a plaintiff omits to sue in respect of,or intentionally relinquishes, any portion ofhis claim, he shall not afterwards sue inrespect of the portion so omitted orrelinquished. 24)Order 2 Rule 2(1) of the Code provides thatevery suit shall include the whole of the claim, whichthe plaintiff is entitled to make in respect of thecause of action. Liberty is, however, granted to theplaintiff to relinquish any portion of his claim with aview to bring the suit within the jurisdiction of )It is clear from the reading of Order 2 Rule (1) ofthe Code that whenever the plaintiff files a suit onthe basis of a cause of action pleaded in the plaint,he is under a legal obligation to include and claim allthe reliefs against the defendant, which have accruedto him on the cause of action pleaded by him in hisplaint.

9 In other words, if on the basis of cause ofaction pleaded by the plaintiff in the plaint, he isentitled to claim two reliefs, namely, A and B against the defendant(s), then he is under anobligation to claim both A and B reliefs together inthe suit. Order 2 Rule 2(1) of the Code enables theplaintiff to relinquish any portion of his relief with aview to bring the suit within the jurisdiction of anyCourt. 26)Order 2 Rule 2(2) of the Code, however, providesthat where a plaintiff omits to sue or intentionally14relinquishes, any portion of his claim/relief in hissuit, then in such event, he shall not be allowedafterwards to sue in respect of the claim/relief soomitted or/and relinquished by him in his suit. Inother words Rule 2(2) does not permit the plaintiff tofile second suit to claim the omitted or/andrelinquished relief. 27)In our opinion, the sine qua non for invokingOrder 2 Rule 2(2) against the plaintiff by thedefendant is that the relief which the plaintiff hasclaimed in the second suit was also available to theplaintiff for being claimed in the previous suit on thecauses of action pleaded in the previous suit againstthe defendant and yet not claimed by the )Therefore, we have to examine the question asto whether the plaintiff was entitled to claim a reliefof specific performance of agreement in the previous15suit on the basis of cause of action pleaded by theplaintiff in the previous suit against therespondents/defendants in relation to suit )In other words, the question that arises forconsideration is whether Sucha Singh (originalplaintiff) could claim the relief of specific performanceof agreement against the respondents/defendants inaddition to his claim of permanent injunction in thepreviously instituted suit?

10 30)Our answer to the aforementioned question is infavour of the plaintiffs (appellants) and against thedefendants(respondents). In other words, our answerto the aforementioned question is that the plaintiffcould not claim the relief of specific performance ofagreement against the defendants along with therelief of permanent injunction in the previous suit forthe following )First, the cause of action to claim a relief ofpermanent injunction and the cause of action toclaim a relief of specific performance of agreement areindependent and one cannot include the other andvice versa. 32)In other words, a plaintiff cannot claim a reliefof specific performance of agreement against thedefendant on a cause of action on which he hasclaimed a relief of permanent )Second, the cause of action to claimtemporary/permanent injunction against thedefendants from interfering in plaintiff's possessionover the suit premises accrues when defendant the plaintiff to dispossess him from the suitpremises or otherwise cause injury to the plaintiff inrelation to the suit premises.