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     REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3777 OF 2018 [Arising out of SLP (C) No.13256 of 2014]

Sucha Singh Sodhi (D) Thr. LRs.        .. Appellant(s)

Versus

Baldev Raj Walia & Anr.          .. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal arises from the final judgment and

order dated 18.02.2014 passed by the High Court of

Delhi at New Delhi in RFA No.353 of 2012 whereby

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the  Single  Judge  of  the  High  Court  dismissed  the

appeal filed by the appellants herein and upheld the

judgment and order dated 08.05.2012 passed by the

Additional District Judge, Tis Hazari Courts, Delhi in

Suit  No.135  of  2008  by  which  the   suit  of  the

appellants was dismissed by taking recourse to the

powers under Order VII Rule 11 of the Code of Civil

Procedure,  1908  (hereinafter  referred  to  as  “the

Code”).   

3) In  order  to  appreciate  the  short  legal  issue

involved in the appeal, few relevant facts, which lie in

a  narrow  compass,  need  to  be  mentioned

hereinbelow.

4) Appellants  are  the  plaintiffs  whereas  the

respondents are the defendants in the civil suit out of

which this appeal arises.

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5) On  11.10.1996,  Sucha  Singh(original  plaintiff)

since dead and now being represented by his legal

representatives (appellant Nos.1 to 4 herein) filed a

suit being Civil Suit No.705/1996 against respondent

No.1 in the Court of Senior Civil Judge, Delhi.  The

suit was filed only for grant of permanent injunction.

6) The plaint was founded on the allegations, inter

alia, that  respondent  No.1  was  the  owner  of  the

house, i.e., basement and half of the first floor of the

premises in plot No.1, Gali No.9 situated at Sanwar

Nagar  Post  Office  Raipur  Khurd,  New  Delhi,  as

detailed  in  the  plaint  (Annexure-P-2)  (hereinafter

referred to as “the suit premises”).  Respondent No.1,

on 27.02.1996,  agreed to  sell  the  suit  premises  to

Sucha Singh (Plaintiff) for Rs.11,50,000/- and out of

the  total  amount,  Sucha  Singh   paid  a  sum  of

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Rs.2,00,000/- by way of advance to respondent No.1

by cheque.  

7) It  was  further  averred  that  Sucha  Singh  was

placed  in  possession  of  the  suit  premises  in

February,  1996.   It  was alleged that  in May,  1996

respondent No.1 demanded more money from Sucha

Singh pursuant to which Sucha Singh further paid

Rs.36,000/- in cash to respondent No.1.  

8) It was alleged that on 10.10.1996, respondent

No.1 threatened to dispossess Sucha Singh from the

suit  premises  and  made  unsuccessful  attempt  to

dispossess him with the help of henchmen (Para 13

of the plaint).  

9) It is on this cause of action, Sucha Singh filed a

civil  suit  for  permanent  injunction  on  11.10.1996

against  respondent  No.1  in  relation  to  the  suit

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premises  restraining  him  from  interfering  with  his

possession over the suit premises.

10) Respondent  No.1  filed  the  written  statement,

inter  alia, alleging  therein  that  he  has  already

transferred  the  suit  premises  to  respondent  No.2

herein and, therefore, the remedy of plaintiff-Sucha

Singh, if any, would be to file a civil suit for specific

performance  of  the  agreement  against  respondent

No.1 but not in prosecuting the suit for permanent

injunction.

11) On 27.11.1998, Sucha Singh (plaintiff) made a

statement in the Court that he wants to withdraw the

civil  suit.   He  also  made  a  statement  that  he  is

withdrawing  the  civil  suit  with  a  view  to  file

proceedings  before  the  competent  forum  to  claim

appropriate relief against respondent No.1.

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12) The  Trial  Court,  on  27.11.1998,  allowed  the

original plaintiff (Sucha Singh) to withdraw the civil

suit and passed the following order:

“It is submitted by the counsel for plaintiff that he wants to withdraw the suit from this court  to  be  filed  before  the  appropriate forum.   Counsel  for  defendant  has  no objection for  withdrawal  of  the  suit  by  the plaintiff,  however  asking  for  cost  incurred. Statements  of  both  the  parties  have  been recorded separately.  Parties shall be bound by their statements as their undertakings in the court.  

I  have  perused  the  records  of  the  file  and statements of both the parties.  The plaintiff is  allowed  to  withdraw  the  suit  subject  to cost of Rs.500/- to be paid to the defendant. Cost paid in the court.  After completion file be consigned to Record Room.”

 (ARCHANA SINHA)   CIVIL JUDGE, DELHI.   27.11.1998.             ”

13) On  25.02.1999,  Sucha  Singh,  filed  civil  suit

No.54 of 1999 (Re-numbered as Suit No.135 of 2008)

in the Court of Additional District Judge, Tis Hazari

Courts,  Delhi  against  respondent  No.1  for  specific

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performance of the agreement dated 27.02.1996. In

Para 13, the plaintiff stated the facts for constituting

the accrual of cause of action for filing the suit for

specific performance of the agreement.

14) Respondent  No.2  i.e.  the  alleged  subsequent

purchaser filed an application under Order 1 Rule 10

of the Code to become a party (defendant) in the suit.

The  application  was  allowed  and  respondent  No.2

was arrayed as defendant No. 2.  

15) Both the respondents (defendants No.1 and 2)

filed their written statement and denied the plaintiff's

claim  on  various  grounds  on  facts  and  in  law.

Respondent  No.2  also  filed  an  application  under

Order  7  Rule  11  of  the  Code  for  rejection  of  the

plaint.  

16) It  was,  inter  alia, alleged  that  the  suit  in

question (specific performance of agreement) is hit by

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the provisions of Order 2 Rule 2 of the Code because

the relief of specific performance, which is claimed in

the  present  suit  could  be  and ought  to  have  been

claimed  by  the  plaintiff  -  Sucha  Singh  in  the

previously  instituted  suit  which  he  had  filed  for

permanent  injunction.   It  was  contended  that

non-claiming of relief of specific performance of the

agreement  in  the  previously  instituted  suit  though

available  to  the  plaintiff  for  being  claimed  on  the

cause of  action pleaded in the previous suit  would

attract the bar contained in Order 2 Rule 2 of  the

Code to the subsequently instituted civil suit wherein

a  relief  of  specific  performance  of  agreement  is

claimed and, therefore, such suit cannot be now tried

on merits.

17) During the pendency of the suit, Sucha Singh

died  on  04.08.2000  and  his  legal  representatives

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(appellants  herein)  were  brought  on  record  as

plaintiffs  to  continue  the  lis.  The  appellants

(plaintiffs) opposed the application filed by defendant

No.2  (respondent  No.2  herein)  and  contended  that

the  suit  for  specific  performance  of  agreement  is

maintainable and not barred by Order 2 Rule 2 of the

Code.  

18) The  Trial  Court,  however,  by  order  dated

08.05.2012  allowed  respondent  No.2's  application

and, in consequence, dismissed the appellants’ suit

holding that it is barred by the provisions of Order 2

Rule 2 of the Code.  In other words, the Trial Court

held  that  the  plaintiffs  ought  to  have  claimed  the

relief of specific performance of the agreement in the

previous  suit,  which  was  filed  by  Sucha  Singh

(original  plaintiff)  for permanent injunction because

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according to the Trial Court such relief was available

for being claimed when the first suit was filed.  

19) The  plaintiffs  felt  aggrieved  and  filed  appeal

before  the  High  Court  of  Delhi.  By  impugned

judgment, the High Court while concurring with the

reasoning  and  the  conclusion  of  the  Trial  Court

dismissed the  appeal. Against the said judgment, the

plaintiffs  felt  aggrieved  and  have  filed  the  present

appeal by way of special leave in this Court.

20) Heard Mr. Bhim Sain Jain, learned counsel for

the appellants, Mr. Jayant Bhushan, learned senior

counsel for respondent No.1 and Mr. Pramod Dayal,

learned counsel for respondent No.2.

21) Having heard the learned counsel for the parties

and  on  perusal  of  the  record  of  the  case,  we  are

inclined to allow the appeal and while setting aside

the judgment and order of  the High Court and the

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Trial  Court,  dismiss  the  application  filed  by

respondent  No.2  (defendant  No.  2)  under  Order  7

Rule 11 of  CPC and restore the civil  suit  No.54 of

1999 (re-numbered as Suit No.135/2008) filed by the

appellants  herein  against  the  respondents  out  of

which this appeal arises for being tried on merits in

accordance with law.

22) In our considered opinion, the Trial Court and

the High Court erred in allowing the application filed

by respondent  No.2  under  Order  7  Rule  11 of  the

Code  and  thereby  erred  in  dismissing  the  suit  as

being barred by the provisions of Order 2 Rule 2 of

the  Code  by  taking  recourse  to  the  provisions  of

Order 7 Rule 11 of  the Code.   In our opinion,  the

provisions  of  Order  2  Rule  2  of  the  Code  are  not

attracted to the facts of this case and, therefore, civil

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suit should not have been dismissed as being barred

under Order 2 Rule 2 of the Code.

23) 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  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.”

24) Order  2  Rule  2(1)  of  the  Code  provides  that

every suit shall include the whole of the claim, which

the  plaintiff  is  entitled  to  make  in  respect  of  the

cause of action.  Liberty is, however, granted to the

plaintiff to relinquish any portion of his claim with a

view to bring the suit within the jurisdiction of any

Court.

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25) It is clear from the reading of Order 2 Rule (1) of

the Code that whenever the plaintiff  files a suit on

the basis of a cause of action pleaded in the plaint,

he is under a legal obligation to include and claim all

the reliefs against the defendant, which have accrued

to him on the cause of action pleaded by him in his

plaint.   In other words, if  on the basis of  cause of

action  pleaded  by  the  plaintiff  in  the  plaint,  he  is

entitled  to  claim  two  reliefs,  namely,  “A”  and  “B”

against  the  defendant(s),  then  he  is  under  an

obligation to claim both “A” and “B” reliefs together in

the suit.  Order 2 Rule 2(1) of the Code enables the

plaintiff to relinquish any portion of his relief with a

view to bring the suit within the jurisdiction of any

Court.   

26) Order 2 Rule 2(2) of the Code, however, provides

that  where  a plaintiff  omits  to  sue or  intentionally

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relinquishes,  any  portion  of  his  claim/relief  in  his

suit,  then  in  such  event,  he  shall  not  be  allowed

afterwards  to  sue  in  respect  of  the  claim/relief  so

omitted or/and relinquished by him in his  suit.  In

other words Rule 2(2) does not permit the plaintiff to

file  second  suit  to  claim  the  omitted  or/and

relinquished relief.  

27) In our opinion,  the  sine qua non for  invoking

Order  2  Rule  2(2)  against  the  plaintiff  by  the

defendant  is  that  the  relief  which the  plaintiff  has

claimed in the second suit was also available to the

plaintiff for being claimed in the previous suit on the

causes of action pleaded in the previous suit against

the defendant and yet not claimed by the plaintiff.

28) Therefore, we have to examine the question as

to whether the plaintiff was entitled to claim a relief

of specific performance of agreement in the previous

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suit on the basis of cause of action pleaded by the

plaintiff  in  the  previous  suit  against  the

respondents/defendants in relation to suit property.

29) In  other  words,  the  question  that  arises  for

consideration  is  whether  Sucha  Singh  (original

plaintiff) could claim the relief of specific performance

of agreement against the respondents/defendants in

addition to his claim of permanent injunction in the

previously instituted suit?  

30) Our answer to the aforementioned question is in

favour of  the plaintiffs  (appellants)  and against  the

defendants(respondents). In other words, our answer

to the aforementioned question is  that  the plaintiff

could not claim the relief of specific performance of

agreement  against  the  defendants  along  with  the

relief of permanent injunction in the previous suit for

the following reasons.

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31) First,  the  cause  of  action  to  claim a  relief  of

permanent  injunction  and  the  cause  of  action  to

claim a relief of specific performance of agreement are

independent and one cannot include the other and

vice versa.  

32) In other words, a plaintiff cannot claim a relief

of  specific  performance  of  agreement  against  the

defendant  on  a  cause  of  action  on  which  he  has

claimed a relief of permanent injunction.

33) Second,  the  cause  of  action  to  claim

temporary/permanent  injunction  against  the

defendants from interfering in plaintiff's  possession

over the suit premises accrues when defendant No.1

threatens the plaintiff to dispossess him from the suit

premises or otherwise cause injury to the plaintiff in

relation to the suit premises. It is governed by Order

39 Rule 1 (c) of the Code which deals with the grant

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of injunction. The limitation to file such suit is three

years  from  the  date  of  obstruction  caused  by  the

defendant to the plaintiff (See – Part VII Articles 85,

86 and 87 of the Limitation Act).  

34) On the other hand, the cause of action to file a

suit  for  claiming specific  performance of  agreement

arises  from  the  date  fixed  for  the  performance  or

when no such date is fixed, when the plaintiff  has

noticed that performance is refused by the defendant.

The limitation to file  such suit  is  three years from

such date (See – Part II Article 54 of the Limitation

Act).

35) Third, when both the reliefs/claims namely, (1)

Permanent Injunction and (2) Specific Performance of

Agreement  are  not  identical,  when  the  causes  of

action  to  sue  are  separate,  when  the  factual

ingredients  necessary  to  constitute  the  respective

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causes  of  action  for  both  the  reliefs/claims  are

different and lastly, when both the reliefs/claims are

governed by separate articles of  the Limitation Act,

then, in our opinion, it is not possible to claim both

the reliefs together on one cause of action.        

36) This  Court  in  Rathnavathi  &  Another vs.

Kavita  Ganashamdas (2015 (5)  SCC 223)  had  the

occasion to examine this very question on somewhat

similar  facts  in  detail.  This  Court  after  taking into

account  the  earlier  decisions  of  this  Court  which

dealt with this question held in Paras 22 to 31 that

bar contained in Order 2 Rule 2 of the Code on such

facts  is  not  attracted against  the  plaintiff  so  as  to

disentitle him from filing the subsequent suit to claim

specific  performance  of  agreement  against  the

defendants in relation to the suit property.

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37) We  apply  the  law  laid  down  in  the  case  of

Rathnavathi (supra) and hold that the suit filed by

the  original  plaintiff  for  specific  performance  of

agreement  against  the  respondents  (defendants)  is

not barred by Order 2 Rule 2 of the Code and is held

maintainable for being tried on merits.

38) This takes us to examine another question as to

whether  in  the  absence  of  any  permission/liberty

granted by the Trial Court to the plaintiff at the time

of withdrawing the previous suit filed for permanent

injunction, the plaintiff was entitled to file the suit for

specific  performance  of  agreement  against  the

defendants in relation to the suit property?

39) In our  considered opinion,  this  question  does

not now survive for consideration in the light of what

we have held above. In any event, keeping in view the

law  laid  down  by  this  Court  in  Gurinderpal vs.

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Jagmittar Singh (2004) 11 SCC 219, the question is

answered against the respondents.

40) In somewhat  similar  facts,  the  question arose

before  this  Court  in  Gurinderpal’s  case (supra),

namely, if the order granting permission to withdraw

the suit under Order 23 Rule 1(3) of the Code does

not specifically mention the fact of granting liberty to

the plaintiff to file a fresh suit, whether filing of fresh

suit would be hit by Order 2 Rule 2 of the Code?  

41) This  Court  (three  Judge  Bench),  speaking

through Justice  R.C.  Lahoti  (as  His  Lordship  then

was), held that filing of the second suit is not hit by

Order 2 Rule 2 of the Code and is maintainable for

being tried on merits.  This is what this Court held in

Para 6:

“6. Having heard the learned counsel for the parties, we are satisfied that the judgment of the High Court as also of the first appellate court  cannot be sustained to the extent to

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which the bar enacted under Order 2 Rule 2 CPC  has  been  applied.  The  provisions  of Order 2 Rule 2 CPC bar the remedy of  the plaintiff-appellant  and,  therefore,  must  be strictly  construed.  The  order  of  the  trial court dated 15-6-1994 passed in the earlier suit,  extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the court on that very date. The plaintiff-appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit  was  being  dismissed  as  withdrawn  “in view  of  the  statement  of  the  plaintiff”.  A conjoint reading of the order of the court and the  statement  of  the  plaintiff,  clearly suggests  that  the  suit  was  dismissed  as withdrawn because the plaintiff wanted to file a fresh suit,  obviously wherein the plaintiff would  seek  the  decree  of  specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellate court was not right in forming an opinion that liberty to file the fresh suit was  not  given  to  the  plaintiff  in  the  order dated  15-6-1994.  That  finding  of  the  first appellate  court  ought  not  to  have  been sustained by the High Court.”     

42) Applying the aforementioned principle of law to

the case at hand, we find that the original plaintiff

(Sucha  Singh),  in  clear  terms,  had  stated  in  the

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previous  suit  that  he  wants  to  withdraw  the  suit

because  he  wants  to  file  appropriate  proceedings

before the competent forum in relation to the subject

matter  of  the  suit.   The  Trial  Court  recorded  his

statement on 27.11.1998 and allowed withdrawal of

the suit.  

43) In  our  considered  opinion,  reading  of  the

statement  of  the  original  plaintiff  (Sucha  Singh)

coupled with the permission granted by the Court to

withdraw the suit satisfies the requirement of Order

23 Rule 1 (3) of the Code.  It certainly enabled the

plaintiff to file a fresh suit, namely, the civil suit for

claiming  specific  performance  of  the  agreement

against the defendants. In our view, the Court was

entitled  to  take  into  consideration  the  statement

made  by  the  original  plaintiff  (Sucha  Singh)  for

withdrawing  the  suit  and  filing  it  afresh  and  his

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statement  could  be  made  a  part  of  the  order  for

granting permission to withdraw the civil suit and file

a fresh suit as was held in the case of  Gurinderpal

(supra).

44) In our view, therefore, this submission urged by

the learned counsel for the respondents has no merit.

45) Learned counsel for respondent No.2 (defendant

No.2) then addressed the Court on the merits of the

suit.  We are afraid, we cannot go into any question

relating to the merits of the controversy involved in

the suit.  It is for the Trial Court to now proceed to

try  the  suit  on  merits  and  decide  the  suit  in

accordance with law.

46) In view of the foregoing discussion, we cannot

concur with the reasoning and the conclusion arrived

at  by  the  Trial  Court  and  the  High  Court  which

wrongly allowed the application filed by respondent

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No.2 (defendant No.2) under Order 7 Rule 11 of the

Code and, in consequence, dismissed the appellants’

(plaintiffs’) suit as being barred by the provisions of

Order 2 Rule 2 of the Code.

47) As a consequence, the appeal succeeds and is

accordingly allowed. The impugned judgment is set

aside.  The  application  filed  by  respondent  No.2

(defendant No.2) under Order 7 Rule 11 of the Code

is dismissed.  

48) The  civil  suit  (No.54/99  re-numbered  as

135/2008)  filed  by  the  appellants  against  the

respondents is held maintainable.  It is accordingly

restored to its original file for being tried on merits

and in accordance with law.

49) The Trial  Court  is  directed to  decide  the  civil

suit on merit expeditiously and preferably within one

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year  without  being  influenced  by  any  of  our

observations.

………………………………..J (R.K. AGRAWAL)

             ..………………………………J.    (ABHAY MANOHAR SAPRE)

New Delhi, April 13, 2018