N.Ravindran v. V.Ramachandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.03.2011CORAMTHE HON'BLE MRS. JUSTICE R.BANUMATHIandTHE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAHO.S.A.NO.379 OF 2008N.Ravindran ..Appellant/ RespondentVs.V.Ramachandran..Respondent/ ApplicantPrayer: Original Side Appeal is filed under Order XXXVI Rule 9of the Original Side Rules read with Clause 15 of Letters Patentagainst the order dated 30.7.2008 made in Application No.2632 of2008 in C.S.No.264 of 2007.For appellant : Mr.K.Alagirisamy,Sr.Counsel for Mr.J.R.K.BhavanandamFor respondent : Mr.N.R.Chandran,Sr.Counsel for Mr.V.ChandrakanthanJUDGMENTR.BANUMATHI,J.Being aggrieved by the order of allowing the application underOrder XIV Rule 8 of Original Side Rules read with Or VII Rule 11CPC dated 30.7.2008 in Application No.2632 of 2008 in C.S.No.264 of2007 thereby rejecting the appellant/plaintiff's suit for specificperformance, the plaintiff/appellant has preferred this appeal. Forthe convenience, the parties are referred to as arrayed in thesuit.2. The suit is one for specific performance of agreement ofsale of immovable property, for damages and permanent injunction.Admittedly, no regular agreement of sale was entered into betweenthe plaintiff and the defendant. Case of plaintiff is that inJanuary, 1994, he entered into an understanding with the defendantunder which defendant agreed to sell his property in Old No.40, NewNo.14, Venkatesan Street, T.Nagar, Chennai- 17 measuring an extentof 5700 sq.ft. for a total consideration of Rs.46,00,000/-. Inpursuance to the said understanding, plaintiff paid a sum ofRs.1,00,000/- on 10.1.1994 and another sum of Rs.6,00,000/- on thesame day (10.1.1994). In evidence of the same, on 10.1.1994defendant issued a stamped receipt, which is stated to containterms and conditions relating to the sale of the property. Between https://hcservices.ecourts.gov.in/hcservices/

10.1.1994 to 23.6.1994, the plaintiff has paid a total amount ofRs.33,00,000/-. The plaintiff claims that in part performance ofthe contract of sale, he was put in possession of the property inMay, 1995. According to the plaintiff, he has always been ready andwilling to pay the balance sale consideration of Rs.13,00,000/- andget the sale deed executed, but the defendant failed to completethe transaction; but has engineered the scheme to dispossess theplaintiff and dispose of the property to some third party therebydefeating the valuable rights of the plaintiff. 3. The plaintiff has further averred that in November 2002,the defendant deputed several persons to inspect the suit propertyand on being contacted, the defendant informed the plaintiff thathe has proposed to do certain modifications in the suit property.In November 2002, one Mohan Kumar claiming to be a builder calledupon the plaintiff and threatened him to vacate the suit premisesstating that he has proposed to purchase the property and topromote the same by putting up flats. The plaintiff claims to havelodged a police complaint in T.Nagar Police Station on 2.12.2002and later filed a civil suit in O.S.No.6514 of 2002 for permanentinjunction restraining the defendant, his men, agents and servantsfrom dealing with the suit property and also to protect thepossession of the plaintiff. The said suit was dismissed fordefault; but according to the plaintiff, he filed an applicationfor restoration in I.A.No.21531 of 2005 and the same is said to bepending. The plaintiff admits that the defendant has also filedO.S.No.300 of 2006 on the file of XVI Assistant Judge, City CivilCourt, Chennai seeking recovery of possession of the plaintschedule property. 4. Alleging that the defendant has no inclination to fulfilhis obligation in execution of the sale deed and that the plaintiffis always ready and willing to get the sale deed executed afterpaying the balance sale consideration of Rs.13,00,000/-. Theplaintiff has filed the suit C.S.No.264 of 2007 for specificperformance to direct the defendant/respondent to execute the saledeed. In the said suit, the plaintiff has also prayed for damagesof Rs.5,00,000/- and also future damages and also for permanentinjunction restraining the defendant from interfering with hispossession and enjoyment of the property. 5. Defendant has filed application – A.No.2632 of 2008 underOrder XIV Rule 8 of Original Side Rules read with Order VII Rule 11(d) of C.P.C. to reject the plaint. Respondent sought for rejectionof plaint on the ground that the suit is barred by limitation andalso in view of filing of earlier suit – O.S.No.6514 of 2002, thesuit is barred under Order II Rule 2 C.P.C.6. Upon consideration of the contentions of both the parties,referring to Paragraphs 19 and 21 of the plaint and also paragraph23 of the plaint, which refers to the cause of action, learnedsingle Judge held that there is a clear reference to filing of thesuit in O.S.No.6514 of 2002 and therefore while consideringapplication under Or 7 Rule 11 C.P.C the plaint in O.S.No.6514 of https://hcservices.ecourts.gov.in/hcservices/ 2002 could be looked into. Referring to the plaint averments, thelearned single Judge held that cause of action for institution ofthe suit has arisen in November 2002, whereas the present suit –C.S.No.264 of 2007 has been filed in December 2006 and the same isbarred by limitation. The learned single Judge further held thatthe plaintiff was aware of the denial of execution of the agreementeven in November 2002 in the earlier suit – O.S.No.6514 of 2002 andwhile so, the plaintiff has omitted to file the suit for specificperformance, the learned single Judge held that the suit –O.S.No.6514 of 2002 is barred under Order II Rule 2 C.P.C.Challenging the order rejecting the plaint, the plaintiff has comeforward with the appeal.7. Heard Mr.K.Alagiriswamy, learned Senior Counsel appearingfor the plaintiff/appellant and Mr.N.R.Chandran, learned Seniorcounsel appearing for the respondent/defendant.8. While finding that the cause of action for filing the suitfor specific performance arose in November 2002, the learned singleJudge in extenso referred to the averments in O.S.No.6514 of 2002earlier filed by the appellant/plaintiff and the learned singleJudge rejected the plaint mainly on the two grounds:- (i) suit isbarred by limitation and (ii) suit is barred under Order II Rule 2C.P.C. The learned Senior Counsel for appellant/plaintiff contendedthat the object of Order VII Rule 11 C.P.C. is to keep out ofCourts frivolous litigations and while considering the application,Court has to find out only from the allegations made in the plaintand not beyond plaint averments to find out whether plaintiff'scase is false or frivolous or barred under any law. 9. Onbehalf of the respondent/defendant, learned SeniorCounsel Mr.N.R.Chandran submitted that when specific reference hasbeen made to O.S.No.6514 of 2002 and when the plaintiff had alsofiled written statement filed by the defendant in O.S.No.6514 of2002 and the Order dated 5.2.2004 in C.R.P.No.2829 of 2003 asplaint documents, had deliberately omitted to file the plaint inO.S.No.6514 of 2002 and therefore the learned single Judge wasright in looking into the plaint in O.S.No.6514 of 2002 which wasproduced by the respondent/defendant. 10. The well settled position is that while considering theapplication under Order VII Rule 11 C.P.C., Court is not requiredto take into consideration the defence set up by the defendant inhis written statement or other documents. The question whetherplaint discloses any cause of action and whether it is barred byany law is to be decided by looking at the averments contained inthe plaint itself and not the defence set up in the writtenstatement. While considering the application, the strength orweakness of the case of the plaintiff is not to be examined. It isfairly well settled that the Court has to find out from theallegations made in the plaint itself and not beyond it as towhether any vexatious or frivolous litigation has been initiated bythe plaintiff. The Court cannot take into account materials beyondthe plaint to declare that the case of the plaintiff is frivolous https://hcservices.ecourts.gov.in/hcservices/ or is barred by any law. 11. The scope of Order VII Rule 7 C.P.C. has been elaboratelyconsidered in Sopan Sukhdeo Sable v. Asstt. Charity Commr.,(2004) 3SCC 137, wherein the Supreme Court held as under: "10. In Saleem Bhai v. State of Maharashtra ((2003) 1SCC 557) it was held with reference to Order 7 Rule 11 ofthe Code that the relevant facts which need to be lookedinto for deciding an application thereunder are theaverments in the plaint. The trial court can exercise thepower at any stage of the suit — before registering theplaint or after issuing summons to the defendant at anytime before the conclusion of the trial. For the purposesof deciding an application under clauses (a) and (d) ofOrder 7 Rule 11 of the Code, the averments in the plaintare germane: the pleas taken by the defendant in thewritten statement would be wholly irrelevant at that stage.11. In I.T.C. Ltd. v. Debts Recovery AppellateTribunal((1998) 2 SCC 70) it was held that the basicquestion to be decided while dealing with an applicationfiled under Order 7 Rule 11 of the Code is whether a realcause of action has been set out in the plaint or somethingpurely illusory has been stated with a view to get out ofOrder 7 Rule 11 of the Code.12. The trial court must remember that if on ameaningful and not formal reading of the plaint it ismanifestly vexatious and meritless in the sense of notdisclosing a clear right to sue, it should exercise thepower under Order 7 Rule 11 of the Code taking care to seethat the ground mentioned therein is fulfilled. If cleverdrafting has created the illusion of a cause of action, ithas to be nipped in the bud at the first hearing byexamining the party searchingly under Order 10 of the Code.(See T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467)13. It is trite law that not any particular plea hasto be considered, and the whole plaint has to be read. Aswas observed by this Court in Roop Lal Sathi v. NachhattarSingh Gill (1982) 3 SCC 487 only a part of the plaintcannot be rejected and if no cause of action is disclosed,the plaint as a whole must be rejected.14. In Raptakos Brett & Co. Ltd. v. Ganesh Property((1998) 7 SCC 184) it was observed that the averments inthe plaint as a whole have to be seen to find out whetherclause (d) of Rule 11 of Order 7 was applicable.15. There cannot be any compartmentalisation,dissection, segregation and inversions of the language ofvarious paragraphs in the plaint. If such a course isadopted it would run counter to the cardinal canon ofinterpretation according to which a pleading has to be readas a whole to ascertain its true import. It is notpermissible to cull out a sentence or a passage and to readit out of the context in isolation. Although it is the https://hcservices.ecourts.gov.in/hcservices/ substance and not merely the form that has to be lookedinto, the pleading has to be construed as it stands withoutaddition or subtraction or words or change of its apparentgrammatical sense. The intention of the party concerned isto be gathered primarily from the tenor and terms of hispleadings taken as a whole. At the same time it should beborne in mind that no pedantic approach should be adoptedto defeat justice on hair-splitting technicalities."12. The above Sopan Sukhdeo Sable case, (2004) 3 SCC 137 hasbeen referred to in the subsequent judgment - Popat and KotechaProperty v. State Bank of India Staff Assn., (2005) 7 SCC 510. Asheld by the Supreme Court in Popat and Kotecha Property v. StateBank of India Staff Assn., (2005) 7 SCC 510), the real object ofOrder 7 Rule 11 of the Code is to keep out of courts irresponsiblesuits. Therefore, Order 10 of the Code is a tool in the hands ofthe courts by resorting to which and by searching examination ofthe party in case the court is prima facie of the view that thesuit is an abuse of the process of the court in the sense that itis a bogus and irresponsible litigation, the jurisdiction underOrder 7 Rule 11 of the Code can be exercised. 13. Keeping in view the aforesaid principles, Court has tofind out whether the learned single Judge was right in rejectingplaintiff's suit for specific performance as barred under Order VIIRule 11(d) C.P.C. Plaintiff's suit for specific performance isbased on the alleged understanding between the plaintiff and thedefendant in January 1994 based on which the plaintiff is said tohave paid advance of Rs.33,00,000/- out of the total saleconsideration of Rs.46,00,000/-. In the plaint, the plaintiff hasaverred that he was always ready and willing to perform hisobligation to pay the balance consideration of Rs.13,00,000/-.Alleging that inspite of assurance the defendant has not comeforward to fulfil his obligation, in paragraph No.9 of the plaint,the plaintiff has averred as follows:"On an enquiry it was learnt that the defendanthad deputed several persons to inspect the suitproperty in the month of November 2002."14. In Para 10 of the plaint, Plaintiff has further averredthat one Mohan Kumar, claiming to be a builder called upon theplaintiff in the last week of November 2002, and threatened him tovacate the suit premises as he proposed to purchase the property toput up several flats. In Para 11 of plaint, the plaintiff hasaverred that followed by the threat, the plaintiff lodged a PoliceComplaint with the Inspector of Police, T.Nagar, Chennai.17 on2.12.2002. In Para 12 of the plaintiff, the plaintiff has referredto the threats by phone calls and filing of suit O.S.No.6514 of2002 and averred as under:-12. ..... Several telephone calls were receivedfrom the defendant's representatives threatening theplaintiff to vacate forthwith, as otherwise seriousconsequences would follow. Left with no option the https://hcservices.ecourts.gov.in/hcservices/ plaintiff was obliged to approach the City Civil Courtby filing O.S.No.6514/02 for a permanent injunctionrestraining the defendant, his men, agents andsubordinates from dealing with the suit property morefully described in the schedule hereunder and also toprotect the possession of the plaintiff. In view of thepart performance of the contract under Section 53(a) ofthe T.P.Act, the plaintiff is entitled to protect hispossession of the suit property from the threat causedby the defendant."15. The defendant has filed written statement in O.S.No.6514of 2002 on 17.11.2003. The defendant had also filed an applicationto reject the plaint in O.S.No.6514 of 2002, which came to bedismissed and the same was challenged before the High Court inC.R.P.No.2829 of 2003. It is pertinent to note that even though theplaintiff has filed written statement filed by the defendant inO.S.No.6514 of 2002 and the copy of the order in C.R.P.No.2829 of2003 as plaint documents under Order VII Rule 14(1) of C.P.C, theplaintiff has conveniently omitted to file copy of the plaint inO.S.No.6514 of 2002. By perusal of the plaint averments inC.S.No.264 of 2007, it is clear that the plaintiff has maderepeated reference to the filing of the plaint in O.S.No.6514 of2002. When the plaintiff has made repeated reference to the plaintin O.S.No.6514 of 2002 and also filed the written statement filedby the defendant in the said suit as a document along with theplaint in C.S.No.264 of 2007 and when plaintiff had not chosen tofile the plaint in O.S.No.6514 of 2002, it cannot be said that thelearned single Judge erred in looking into the plaint inO.S.No.6514 of 2002. 16. It cannot be contended that the learned single Judgecommitted an error in taking into account the materials (plaint inO.S.No.6514 of 2002) to hold that the plaintiff's case is barred bylimitation. As pointed out by the learned single judge, when theplaintiff's case prima facie appears to be vexatious the Court isnot powerless to examine the averments with reference to theplaintiff's documents. Of course, it is not permissible to cullout one sentence here and one sentence there. But when specificreference has been made to the plaint in O.S.No.6514 of 2002, inour considered view, the learned single Judge was justified inlooking into the plaint in O.S.No.6514 of 2002. 17. Next point falling for consideration is, whether theplaint can be rejected on the ground that the suit is barred bylimitation. As pointed out earlier, in paragraph Nos.9 and 10 ofthe plaint, the plaintiff has averred that the defendant deputedseveral persons to inspect the property in the month of November2002 and has also sent one Mohan Kumar claiming to be a builder,who threatened to vacate the plaintiff stating that he has proposedto purchase the property to put up several flats. In paragraphNo.23 – cause of action, plaintiff has clearly averred that "in thelast week of November 2002, one Mohan Kumar, builder informed theplaintiff that he is likely to purchase the suit property." By https://hcservices.ecourts.gov.in/hcservices/ referring to the plaint averments in paragraph Nos.9, 10, 22 and 23and also the plaint in O.S.No.6514 of 2002, the learned singleJudge held (i) that there was refusal of performance by thedefendant and (ii) that the plaintiff had notice of such refusaleven in November/December 2002. The learned single Judge furtherheld that the threat posed by the defendant in November/December2002 was two fold viz., (i) to dispossess the plaintiff; and (ii)to enter into an agreement of sale with a builder to put up flats.18. As pointed out by the learned single Judge, even inNovember/December 2002, the plaintiff had notice that the defendantis trying to dispossess the plaintiff and that the defendant hasalso entered into an agreement with a builder to put up flats. Eventhen the plaintiff had not chosen to file the suit for specificperformance, but had filed only the suit for permanent injunction– O.S.No.6514 of 2002 to restrain the defendant from dealing withthe property and also to protect the possession of the plaintiff.The plaintiff had filed the suit for specific performance only inNovember 2006, which the learned single Judge held, is barred bylimitation. 19. Order VII Rule 11 clause (d) applies only when the suitappears from the statement in the plaint to be barred by any law.The learned Senior Counsel for appellant mainly contended that thequestion of limitation is a mixed question of fact and law andtherefore the plaint cannot be rejected on the ground oflimitation. It was further submitted that the question oflimitation is connected with the merit of the suit and thereforethe plaint cannot be rejected under Order VII Rule 11 (d) as barredby limitation and the learned single Judge committed an error inrejecting the plaint under Order VII Rule 11(d) C.P.C. as barred bylimitation. In support of his contention, the learned SeniorCounsel placed reliance upon a decision of the Supreme Court in C.Natrajan v. Ashim Bai,(2007) 14 SCC 183 and other decisions.20. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust,(2006) 5 SCC 658, the Supreme Court considered the question whetherwords ".... barred by law...." in Rule 11(d) would also include barby the law of limitation. Referring to various judgments andconflict of views, the Supreme Court held as under:"“4. This case was argued at length on 30-8-2005.Counsel appearing for the appellant had relied upon ajudgment of this Court in N.V. Srinivasa Murthy v.Mariyamma (2005) 5 SCC 548 for the proposition that aplaint could be rejected if the suit is ex facie barredby limitation. As against this, counsel for therespondents relied upon a later judgment of this Court inPopat and Kotecha Property v. SBI Staff Assn.(2005) 7 SCC510. in respect of the proposition that Order 7 Rule 11(d) was not applicable in a case where a question has tobe decided on the basis of fact that the suit was barredby limitation. The point as to whether the words ‘barredby law’ occurring in Order 7 Rule 11(d) CPC would includethe suit being ‘barred by limitation’ was notspecifically dealt with in either of these two judgments,cited above. But this point has been specifically dealtwith by the different High Courts in Mohan Lal Sukhadia https://hcservices.ecourts.gov.in/hcservices/ University v. Priya Soloman AIR 1999 Raj 102, KhajaQuthubullah v. Govt. of A.P.AIR 1995 AP 43, VedapalliSuryanarayana v. Poosarla Venkata Sanker Suryanarayana(1980) 1 An LT 488 : (1980) 1 APLJ 173 (HC), Arjan Singhv. Union of India AIR 1987 Del 165, wherein it has beenheld that the plaint under Order 7 Rule 11(d) cannot berejected on the ground that it is barred by limitation.According to these judgments the suit has to be barred bya provision of law to come within the meaning of Order 7Rule 11 CPC. A contrary view has been taken inJugolinija Rajia Jugoslavija v. Fab Leathers Ltd. AIR1985 Cal 193, National Insurance Co. Ltd. v. NavromConstantza AIR 1988 Cal 155, J. Patel & Co. v. NationalFederation of Industrial Coop.Ltd. AIR 1996 Cal 25 andState Bank of India Staff Assn. v. Popat & KotechaProperty (2001) 2 Cal LT 34. The last judgment was thesubject-matter of challenge in Popat and Kotecha Propertyv. SBI Staff Assn.(2005) 7 SCC 510. This Court set asidethe judgment and held in para 25 as under: (SCC p.517)“25. When the averments in the plaint are consideredin the background of the principles set out in SopanSukhdeo case (2004) 3 SCC 137 the inevitable conclusionis that the Division Bench was not right in holding thatOrder 7 Rule 11 CPC was applicable to the facts of thecase. Diverse claims were made and the Division Bench waswrong in proceeding with the assumption that only thenon-execution of lease deed was the basic issue. Even ifit is accepted that the other claims were relatable to itthey have independent existence. Whether the collectionof amounts by the respondent was for a period beyond 51years needs evidence to be adduced. It is not a casewhere the suit from statement in the plaint can be saidto be barred by law. The statement in the plaint withoutaddition or subtraction must show that it is barred byany law to attract application of Order 7 Rule 11. Thisis not so in the present case.”5. Noticing the conflict between the various HighCourts and the apparent conflict of opinion expressed bythis Court in N.V. Srinivasa Murthy v. Mariyamma (2005) 5SCC 548 and Popat and Kotecha Property v. State Bank ofIndia Staff Assn.(2005) 7 SCC 510 the Bench referred thefollowing question of law for consideration to a largerBench:“Whether the words ‘barred by law’ under Order 7Rule 11(d) would also include the ground that it isbarred by the law of limitation.”In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust,(2006) 5 SCC 662, keeping in view the importance of question andthe conflict of opinion, the Supreme Court referred the matter to alarger Bench. 21. Balasaria Construction case was referred to by the SupremeCourt in C. Natrajan v. Ashim Bai,(2007) 14 SCC 183, wherein therespondent filed application under Order 7 Rule 11(d) C.P.C. https://hcservices.ecourts.gov.in/hcservices/ praying for rejection of the plaint on the premise that the suitwas barred by limitation. The trial Court dismissed the applicationon the ground that the question of limitation is a mixed questionof fact and law to be considered during the trial by casting theissue suitably. The High Court set aside the order of the trialCourt stating that the period of limitation, as per Article 58 ofthe Limitation Act, 1963 expired in 1997 itself and also holdingthat Article 65 of the Act had no application and the Supreme Courtallowed the appeal holding that the suit cannot be dismissed asbarred by limitation without proper pleading, framing of issue oflimitation and taking evidence.22. The learned Senior Counsel for the appellant/plaintiffMr.K.Alagirisamy submitted that no time for performance of contractwas fixed and therefore the Court had to find out the date on whichthe plaintiff had notice that the performance was refused.According to the appellant, the appellant/plaintiff had notice ofrefusal of performance only when the written statement was filed inO.S.No.6514 of 2002 on 17.11.2003 and the suit filed on 16.11.2006within three years from the said date is well within the period oflimitation. 23. As held by the Supreme Court in C. Natrajan v. Ashim Bai,(2007) 14 SCC 183, the limitation would not commence unless therehas been a clear and unequivocal threat to the right claimed by theplaintiff. In the case on hand, the plaint averments would clearlyshow that there has been a clear and unequivocal threat to theright claimed by the plaintiff. As pointed out earlier, inparagraph No.10 of the plaint, the plaintiff has categoricallyaverred that in November 2002, one Mohan Kumar claiming to be abuilder called upon the plaintiff and threatened him to vacate thesuit premises as he (Mohan Kumar) proposed to purchase the propertyto put up several flats. It is also averred in the plaint that theplaintiff lodged a police complaint on 2.12.2002. In paragraphNo.12 of the plaint, the plaintiff has averred that followingseveral telephone calls threatening him he filed suit – O.S.No.6514of 2002. Before filing the suit, the plaintiff issued legal noticeon 18.11.2002 calling upon the defendant to receive the balanceconsideration of Rs.13,00,000/- and to execute the sale deed.Stating that the defendant has not come forward to execute the saledeed, in December 2002, plaintiff has filed the suit – O.S.No.6514of 2002 for bare permanent injunction. In the plaint averments inC.S.No.264 of 2007, there is a repeated reference to the threatsby the defendant in November/December 2002 and also his refusal tofulfil his obligation. Suit for specific performance should havebeen filed atleast by 2.12.2005. Even though there was such clearand unequivocal threat to the alleged agreement ofsale/undertaking, the plaintiff has not chosen to file the suit forspecific performance; but filed the suit for specific performance-C.S.No.264 of 2007 only in the month of November 2006. The suit isclearly barred by limitation. Even though the question oflimitation is a mixed question of facts and law, the facts are writlarge on the face of it to hold that the suit for specific https://hcservices.ecourts.gov.in/hcservices/ performance – C.S.No.264 of 2007 is barred by limitation. On thefactual matrix of this case the ratio of the decision of theSupreme Court in (2007) 14 SCC 183 is not applicable to the factsof the case on hand.24. Pointing out that the earlier suit – O.S.No.6514 of 2002 -has not been filed only for specific performance and that theplaintiff did not take the leave of the Court to file a separatesuit for specific performance, the learned single Judge also heldthat the suit is barred under Order II Rule 2 C.P.C. Placingreliance upon Alka Gupta v. Narender Kumar Gupta,(2010) 10 SCC 141,the learned Senior Counsel for the appellant contended that a suitcannot be rejected as barred under Order II Rule 2 C.P.C. in theabsence of issues framed focussing on the bar to the suit under Or2 R 2 C.P.C. Learned Senior Counsel would further contend that thepleadings in both the suits should be exhibited or marked and theplaintiff should have been given an opportunity to exhibit ordemonstrate that the second suit was based on a different cause ofaction. It is the further contention of appellant that no issue wasframed as to whether the suit was barred under Order II Rule 2C.P.C. While so, the learned single Judge erred in rejecting theplaint as barred under Order II Rule 2 C.P.C. 25. The object of Order II Rules 1 and 2 C.P.C. is to preventmultiplicity of suits. The Rule in Order II Rule 2 is founded onthe principle that a person shall not be vexed twice for one andthe same cause of action. Order II Rule 2 C.P.C. is directed insecuring a exhaustion of the relief in respect of a cause ofaction. In order to make Order II Rule 2 applicable, the defendantmust satisfy the f conditions:- (i) The previous and second suitmust arise out of the same cause of action; (ii) Both the suitsmust be between the same parties; and (iii) The earlier suit musthave been decided on merits. In order to attract the bar of OrderII Rule 2 C.P.C, the earlier suit shall be founded on the samecause of action on which the subsequent suit is based, and if inthe earlier suit, the plaintiff has omitted to sue in respect of orintentionally relinquished any portion of his claim, he will notsubsequently be entitled to sue in respect of the portion of hisclaim so omitted or relinquished.26. The learned single Judge considered the present suit –C.S.No.264 of 2007 and also the earlier suit – O.S.No.6514 of 2002and held that in the earlier suit, the plaintiff has intentionallyomitted to sue for specific performance and held that the suit isbarred under Order II Rule 2 C.P.C. 27. The plaint in O.S.No.6514 of 2002 was produced before us.By perusal of the averments in both the suits - C.S.No.264 of 2007and O.S.No.6514 of 2002, we find that the averments in both theplaints are verbatim same excepting few sentences in some https://hcservices.ecourts.gov.in/hcservices/ paragraphs. As pointed out earlier, there was unequivocal threat tothe plaintiff's right of agreement/understanding even in November2002 when the plaintiff has also lodged a police complaint. Whileso, while filing the suit – O.S.No.6514 of 2002, the plaintiff hasomitted to sue in respect of the suit for specific performance.Order II Rule 2 is directed in securing the exhaustion of relief inrespect of cause of action. When the plaintiff has intentionallyomitted to claim the relief of specific performance, he will not besubsequently entitled to sue in respect of the portion of his claim– right of specific performance, which he so omitted.28. The learned Senior Counsel for the appellant/plaintiffnextly contended that the suit – C.S.No.264 of 2002 has been filednot only for specific performance, but also for payment of damagesof Rs.5,00,000/- towards damages on account of plaintiff's mentalagony and the plaintiff has also sought for permanent injunctionrestraining the defendant from interfering with the plaintiff'spossession. The learned senior Counsel Mr.K.Alagirisamy submittedthat even if the plaintiff is not entitled to the relief ofspecific performance, still the plaintiff can maintain the suit fordamages and for permanent injunction. The contention of theplaintiff is that the relief of permanent injunction is not linkedto the relief of specific performance. In support of hiscontention, the learned Senior Counsel placed reliance upon adecision of the Supreme Court in Gunwantbhai Mulchand Shah v. AntonElis Farel,(2006) 3 SCC 634, wherein the Supreme Court held asunder:- "9. ........ The plaint contains not only a prayerfor specific performance but also a prayer forperpetual injunction restraining the defendants frominterfering with the possession of the plaintiffs andfrom creating any documents or entering into anytransaction in respect of the suit property. Of course,the latter part of that prayer is directly linked tothe claim for specific performance, but the suit asregards the prayer for perpetual injunction to protectthe possession of the plaintiff over the suit propertyon the claim that the predecessor of the plaintiffs wasput in possession of the property pursuant to theagreement for sale, on a subsequent date, could nothave been held to be not maintainable on anyground........."The Supreme Court further held that even if the plaintiff isnot entitled to the decree for specific performance, the plaintiffmay be entitled to permanent injunction based on their allegedpossession and all mattes are to be decided in the suit and theplaint cannot be rejected as not maintainable.29. In our considered view, ratio of the above decision is notapplicable to the case on hand. In the case on hand, admittedly, https://hcservices.ecourts.gov.in/hcservices/ there is no written agreement of sale. Plaintiff claims specificperformance on the basis of an understanding pursuant to which heis said to have paid the amount. The plaintiff claims to be inpossession of the property only pursuant to the understandingbetween the plaintiff and the defendant. In the absence of anywritten agreement of sale, the plaintiff's claim for permanentinjunction is strongly inter-linked with the prayer for specificperformance. In our considered view, the other reliefs claimingdamages of Rs.5,00,000/- and the relief of permanent injunction areonly incidental to the main relief of specific performance. Theother reliefs are integrally connected with the main relief ofspecific performance, which is clearly barred by limitation. Theplaintiff cannot maintain the suit in respect of the other reliefsdehors the suit for specific performance. 30. Upon consideration of the plaint averments, the learnedsingle Judge rightly held that the suit is barred by limitation andalso barred under Order II Rule 2 C.P.C. No substantial grounds aremade out by the appellant/plaintiff warranting interference of theOrder of the learned single Judge and the appeal is liable todismissed.31. In the result, the Original Side Appeal is dismissed.However, there is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.uskToThe Sub Asst.RegistrarOriginal Side, High CourtMadras.1 cc to mr.v. chandrakanthan, Advocate, Sr. 180822 ccs to Mr.J.R.K. Bhuvanathan, Advocate, Sr. 17932 O.S.A.No.379 OF 2008GV (CO)kk 6/4