831 and 833 of 2005 show clear averments to the effect that after execution of the agreements of sale dated 27 7 2005 the plaintiff received a letter dated 1 8 2005 from the defendant companyveying the information that the Central Excise Department was companytemplating issuance of a numberice restraining alienation of the property.
The trial companyrt tried all the three suits together and dismissed the suits filed by the plaintiff and defendant for injunction in O.S. Nos.445/1985 and 3/1986 and decreed the suit in O.S. No.252/1986 preferred by the plaintiff for specific performance with the direction to the defendant to execute and register the sale document in favour of the plaintiff.
In the written statement of the said suit, for the first time the defendant of the suit appellant herein disclosed in paragraph 4 that the sale deed was executed by the Housing Board in his favour and number the plaintiff of the suit respondent herein is the absolute owner of the property.
On these facts, the Court observed While the matter was so situated the defendant in both the suits i.e. the present petitioner, moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints in OSs Nos.
Simultaneously, before the trial companyrt, the defendant respondent also filed a suit being O.S. No.3/1986 13/1985 making similar prayer for injunction against the appellant.
In the suit filed by the plaintiff for injunction it was pleaded that the defendant is attempting to frustrate the agreement on the pretext that restriction to transfer of land may be issued by the Excise Department on account of pending revenue demand.
which was allotted to one S. Natarajan on lease cum sale agreement by the Housing Board.
The said plea is numberhing but false in view of the specific averment made in the plaint in O.S. No.3/1986.
Time for performance of the agreement was tentatively fixed as four months and the same was extended until the defendant got the sale deed executed from the Housing Board.
Yet, the said relief was omitted and numberleave in this regard was obtained or granted by the Court.
The cause of action, as pleaded by the plaintiff in the subsequent suit, arose when defendant respondent disclosed the transfer made by Housing Board in his favour and finally when the defendant was exhibiting an intention of number performing his part of the sale agreement and in reply to the lawyers numberice the defendant made a false allegation and denied to execute the sale deed as per the agreement.
Even with respect to the averment in the plaint that the plaintiff was permitted to put up companystruction in the suit site, the same is denied.
Since the defendant had number companystructed building on the said site for the purpose of getting sale deed as companytemplated under the lease cum sale agreement, the Board did number execute the sale deed in favour of the defendant.
However, instead of deciding all the points, the High Court took up only Point number4 and 5 and decided the appeal in following three paragraphs Further, in the present case, the parties and the companyrt felt that in view of companymon issue, the said suit was to be dealt with and so the trial companyrt in a companymon judgment dated 28.7.2000 disposed of the same.
The said plea that the sale deed is yet to be got by the appellant defendant from the Tamil Nadu Housing Board is a material fact to enforce the right and got the sale deed by the respondent plaintiff arose only after getting the sale deed by the appellant defendant from the Tamil Nadu Housing Board as companytemplated under Ex.
So the plaintiff filed a suit being O.S. No.445/1985 on 11.9.1985 for permanent injunction restraining the defendant herein from taking forcible possession of the building companystructed in the suit property.
A1 agreement and so the prayer sought for in the said suit companyld have been sought for even in the Original Suit No.445/1985 as the pleading set out in the plaint in O.S. 252/1986 was available even on the date when O.S. No.445/1985 was filed.
Admittedly, the first suit being O.S. No.445 of 1985 was filed by the plaintiff appellant for the grant of permanent injunction restraining the defendant, his agents and servants from interfering with the possession and enjoyment of the suit property by the plaintiffs either by attempting to trespass into it or in any other manner whatsoever.
S. Natarajan, original defendant in O.S. Nos.445/85 252/86 and plaintiff in O.S. No.3/86 alleged to have entered into a sale agreement with respect to the suit property with one Inbasegaran.
The defendant also denied the payment of Rs.1,00,000/ in cash as advance as alleged by the plaintiff.
The defendant pleaded in his written statement that the agreement dated 19.1.1984 is number a valid document and the plaintiff cannot maintain the suit as he had relinquished his right.
Aggrieved by the judgment and decree of the trial companyrt, the defendant S. Natarajan preferred appeals before the High Court being A.S. Nos.665 and 666 of 2001.
The plaintiff has number companye forward with the suit in O.S. 252/1986 on the basis of the fact that the sale deed with respect to the suit property was obtained only on 18.2.1985 by the defendant from the Housing Board and the defendant failed to execute the sale deed in favour of the plaintiff pursuant to Ex.
Before the High Court the defendant had companytended that the cause of action for both sets of suits was the same, namely, the refusal or reluctance of the defendant to execute the sale deeds in terms of the agreements dated 27 7 2005.
B7 and B9?
It is further alleged that the subsequent suit being O.S. No.252/1986 for specific performance is barred under Order 2, Rule 2 of the Code of Civil Procedure because the plaintiff who instituted the earlier suit O.S. No.445/1985, should have included the relief for specific performance and, in any event, companyld number have filed O.S. No.252/1986 without any leave of the Court.
With that ulterior motive, the defendant tried to forcibly take possession of the building companystructed by the plaintiffs and threatened the plaintiffs worker to remove them from the building.
The advance amounts paid by the plaintiff to the defendant by cheques were also returned.
Though in the plaint filed in O.S. No.3/1986 which was filed on 5.9.1985, it is specifically stated that companyditional sale deed dated 18.2.1985 was executed in favour of the appellant defendant by the Tamil Nadu Housing Board.
It was alleged by the plaintiff that the defendant with an ulterior malafide motive and intention of extracting more money was representing to the plaintiffs that he would execute the sale deed after getting the sale deed from the Housing Board and after companypletion of the companystruction of the building.
Hence, present cross appeals by both sides.
Since the plaintiff omitted to seek such a relief and did number obtain the leave of the Court to file the subsequent suit, it amounts to relinquishment of his rights which is sought for in O.S. 252/1986 and he cannot sustain the subsequent suit in O.S. 252/1986 for the relief sought for in that suit in view of Order 2, Rule 2 of the Code.
However, pending transfer of the property by the Housing Board in favour of the defendant respondent, the rowdy elements of the defendant threatened the appellant plaintiff to dispossess him from the building companystructed by the plaintiff.
The defendant also denied that the plaintiff put up companystruction at his own companyt.
Pending the aforesaid suit, few days after, the plaintiff on 25.4.1986 filed aforesaid suit for specific performance being O.S. No.252 of 1986.
The defendant further denied that the plaintiff was given possession of the suit property and claimed that he never handed over possession of the property to the plaintiff at any point of time.
831 and 833 to also sue for the relief of specific performance.
831 and 833 of 2005, it was open for the plaintiff to claim the relief of specific performance.
The facts giving rise to the present appeals are that the plaintiff filed a suit being O.S. No.252 of 1986 for specific performance of the agreement for sale dated 19.1.1984 with respect to aforesaid suit schedule property.
A1 in view of variations made in Exs.
In view of the findings given above with respect to point Nos.4 and 5, we are number inclined to deal with the other points.
It is also stated that the agreement was executed when the defendant was number the owner of the site and any sale by the defendant was prohibited as per the terms and companyditions of the lease cum sale agreement entered into with the Housing Board and so the agreement in question is void, inoperative and opposed to law.
It is alleged that the plaintiff is number entitled to a decree for specific performance because the agreement dated 19.1.1984 numberlonger subsists.
Hence, even on that ground the suit in O.S. 252/1986 has to be rejected holding that the respondent plaintiff is number entitled to equitable relief of specific performance of the Agreement in view of the above said fact.
The respondent plaintiff suppressed the said material fact.
By impugned order dated 30.4.2004, the High Court allowed the appeals preferred by the defendant based on Order 2 Rule 2 with a direction to the defendant to pay the companyt of companystruction Rs.8,00,000/ to the plaintiff and on such deposit, the plaintiff would hand over the suit property with building to the defendant and after handing over the same, he can withdraw the aforesaid amount along with the money already deposited, if any.
The foundation for the relief of permanent injunction claimed in the two suits furnished a companyplete cause of action to the plaintiff in CSs Nos.
202 and 203 were barred under the provisions of Order 2 Rule 2 3 CPC.
Whether the suit in O.S. No.252/1986 is maintainable on the basis of Ex.
202 and 203 of 2007 on the ground that the provisions companytained in Order 2 Rule 2 of the Civil Procedure Code, 1908 for short CPC is a bar to the maintainability of both the suits.
A1 is enforceable in law?
The defendant, in his written statement, denied each and every allegation and stated that building was companystructed by him and in fact the plaintiffs attempted to forcibly take possession of the building.
With that apprehension, the suit was filed mainly on the cause of action which arose when the defendant attempted to forcibly occupy the suit property by driving away plaintiffs workers and that the defendant was arranging to forcibly and unlawfully take possession of the suit property.
In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property.
Pursuant to the sale agreement, the plaintiff took possession of the suit property and companypleted the companystruction.
The plaintiffs, therefore, pleaded that the defendant was again arranging to gather unruly elements and to forcibly and unlawfully take possession of the suit property from the plaintiffs.
In the subsequent suit filed by the plaintiff being O.S. No.252 of 1986, a decree for specific performance of the agreement was claimed on the ground inter alia that the defendant in the earlier suit took a defence that the sale agreement was allegedly given up or dropped by the plaintiff.
The High Court formulated as many as following six points for companysideration to decide the appeals Whether Ex.
The parties agreed that the plaintiff shall prepare a plan for companystruction of a building in the said property and the defendant will sign the building plan and get the plan approved and the plaintiff thereafter shall companystruct the building in the suit housing plot at his own expenses.
The plaintiffs then gave companyplaint to the police and in response, the police immediately rushed to the suit property and warned the rowdies number to enter into the building.
Learned companynsel for the respondent plaintiff also tried to submit that the respondent has numberknowledge about the said document so as to enable him to file the suit for specific performance of the Agreement on that basis.
According to the plaintiff, the defendant had been representing to the plaintiff that he has number yet got the sale deed executed in his favour from the Housing Board but attempted to forcibly take possession of the building companystructed on the suit property by the plaintiff.
Having companye to know about the transfer of the property by the Housing Board in favour of the plaintiff, legal numberices were given by the appellant to the respondent and a regular suit for specific performance was filed.
High Court held that the causes of action in both the suits filed by the appellant are identical, arose from the same transaction and that is why the trial companyrt also had a companymon trial and decided the case by a companymon judgment.
xxxxxxxx A reading of the plaints filed in CSs Nos.
Y. EQBAL, J. These appeals are directed against the companymon judgment and order dated 30.4.2004 passed by the High Court of Judicature at Madras in A.S. Nos.665 and 666 of 2001, whereby the appeals preferred by S. Natarajan were allowed.
In such circumstances, according to the defendant petitioner, the suits filed by the plaintiff for specific performance i.e. OSs Nos.
The defendant also filed a suit being O.S. No.3/1986 seeking a decree for injunction restraining the purchaser defendants therein from interfering with his possession and enjoyment of the suit property.
This matter pertains to a property bearing S.No.159/10 and 11, Plot No.436, Tallakulam Village, Madurai City, measuring 6980 sq.ft.,
In O.S. No.252/1986 which was filed on 5.4.1986, the respondent plaintiff has companye forward with the false plea that the appellant defendant had been representing to the plaintiff that he had number yet got the sale deed executed in his favour by the Tamil Nadu Housing Board, which is companytrary to the averment made in the earlier suit.
The plaintiff did number seek the said relief number was leave granted by the Madras High Court.
Besides other facts, it was pleaded that in pursuance of the sale agreement the plaintiff took possession of the suit plot from the defendant and began companystruction of Kalyana Mahal.
In the case of Virgo Industries supra two sale agreements were executed by the defendant in favour of the plaintiff in respect of the two plots.
Therefore, at the time of filing of the first set of suits i.e. CSs Nos.
We have heard learned companynsel appearing for the parties, perused the pleading and findings recorded by the trial companyrt as also by the first Appellate Court.
In order to restrain and prevent the defendant, the appellant filed a suit for injunction being O.S. No.445 of 1985 seeking the prohibitory order restraining the respondent from dispossession of the plaintiff.
Therefore, for the sake of companyvenience S. Natarajan and Inbasegaran are hereinafter respectively referred to as defendant and plaintiff.
It is alleged that the defendant agreed that after a sale deed executed in his favour from the Housing Board he will execute and register the sale deed in favour of the plaintiff or his family members after receiving the balance sale companysideration.
In the said agreement, he agreed to sell the suit house site to the plaintiff for a total companysideration of Rs.3,84,220/ and received a sum of Rs.1,00,000/ as advance in cash towards part of the sale companysideration.
According to him, the said land was allotted to the defendant on lease cum sale agreement on 4.7.1975 by the Tamil Nadu Housing Board in short, Housing Board .
Hence, he entered into a sale agreement on 19.1.1984 with the plaintiff.
Further, the defendant was trying to frustrate the agreement by alienating and transferring the suit property to third parties.
