Cuddalore Powergen Corporation Ltd v. M/s Chemplast Cuddalore Vinyls Limited and Anr.

Cuddalore Powergen Corporation Ltd v. M/s Chemplast Cuddalore Vinyls Limited and Anr.

intention of not performing his part of the sale agreement and in reply to the lawyer’s notice the defendant made a false allegation and denied to execute the sale deed as per the agreement.

19. A perusal of the pleadings in the two suits and the cause of action mentioned therein would show that the cause of action and reliefs sought for are quite distinct and are not same. xxx xxx xxx

27. Besides the above, on reading of the plaint of the suit for injunction filed by the plaintiff, there is nothing to show that the plaintiff intentionally relinquished any portion of his claim for the reason that the suit was for only injunction because of the threat from the side of the defendant to dispossess him from the suit property. It was only after the defendant in his suit for injunction disclosed the transfer of the suit property by the Housing Board to the defendant and thereafter denial by the defendant in response to the legal notice by the plaintiff, the cause of action arose for filing the suit for specific performance.” (emphasis supplied)

60. In Inbasagaran (supra), the Court was of the view that the decision adopted in Virgo Industries (supra) cannot be applied since in Inbasagaran (supra) the suit for injunction was filed due to the threat given by the respondent to dispossess him from the suit property and there was no allegation made in the first suit that the respondent was threatening to alienate or transfer the property to a third party in order to frustrate the agreement.

61. Similarly, in Rathnavathi (supra), the Court refused to accept the submission that the second suit for specific performance was barred by the principles underlying Order II Rule 2. Here, an agreement for sale was entered into between the plaintiff and defendant no. 2 for the sale of the suit house and part payment was also made by the plaintiff. Later, on 07.01.2000, the plaintiff had filed the first suit against the defendants for seeking permanent injunction restraining the defendants from interfering with the plaintiff’s possession over the suit house since the defendant no. 1 who is a total stranger to

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the suit house, along with defendant no. 2 who was the vendor, had visited the suit house on 02.01.2000 and threatened to dispossess the plaintiff from the suit property. In the written statement of this first suit, it was disclosed to the plaintiff that the defendant no. 2 had sold the house to defendant no. 1 on 09.02.1998. Subsequently, a legal notice dated 06.03.2000 was served upon the defendant no. 2 and the plaintiff had filed a second suit seeking the relief of specific performance. Thereafter, the plaintiff sought to add a prayer for the cancellation of the sale deed alleged to have been executed by the defendant no. 2 in favour of the defendant no. 1 in the second suit by way of an amendment and the same was allowed. It was under such circumstances that this Court had held that the rigours of Order II Rule 2 were not attracted and observed as thus: “22. Coming first to the legal question as to whether bar contained in Order 2 Rule 2 CPC is attracted so as to non- suit the plaintiff from filing the suit for specific performance of the agreement, in our considered opinion, the bar is not attracted. xxx xxx xxx

25. In the instant case when we apply the aforementioned principle, we find that the bar contained in Order 2 Rule 2 CPC is not attracted because of the distinction in the cause of action for filing the two suits: 25.1. So far as the suit for permanent injunction is concerned, it was based on a threat given to the plaintiff by the defendants to dispossess her from the suit house on 2-1-2000 and 9-1-2000. This would be clear from reading Para 17 of the plaint. So far as the cause of action to file suit for specific performance of the agreement is concerned, the same was based on non-performance of agreement dated 15-2-1989 by Defendant 2 in the plaintiff’s favour despite giving legal notice dated 6-3-2000 to Defendant 2 to perform her part. 25.2. In our considered opinion, both the suits were, therefore, founded on different causes of action and hence could be filed simultaneously… xxx xxx xxx

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28. We cannot accept the submission of the learned Senior Counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order 2 Rule 2 CPC.

29. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order 2 Rule 2 CPC. It is the cause of action which is material to determine the applicability of bar under Order 2 Rule 2 CPC and not merely the pleadings. For these reasons, it was not necessary for the plaintiff to obtain any leave from the court as provided in Order 2 Rule 2 CPC for filing the second suit.

30. Since the plea of Order 2 Rule 2 CPC, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the legal provisions applicable for grant of reliefs in both the suits.” (emphasis supplied)

62. The Court in Rathnavathi (supra) had added that the defendants would not be justified in raising a plea of bar under Order II Rule 2 merely on account of the pleadings of both the suits being similar to some extent. It is the identity of the cause of action which must be a material consideration for the Courts and not the pleadings alone. Additionally, since a successful plea under this provision would result in depriving the plaintiff of his right to file the second suit, Courts must be careful and should examine the entire factual matrix of both the suits, the causes of action on which they are founded, the reliefs which are claimed in both suits and the legal provisions applicable for the grant of reliefs.

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63. In Vurimi Pullarao (supra), it was observed by this Court that the plaint of the first suit filed for injunction contained a recital of the agreement to sell; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the defendant to perform the contract. It was held that the cause of action for the suit for specific performance had arisen when the plaintiff had notice of denial by the defendant to perform the contract. This notice of denial was much prior to the date of institution of the first suit. Therefore, the plaintiff was entitled to sue for specific performance but however, omitted to sue for such relief in the initial suit. There was also a complete identity of the causes of action between the two suits. Hence, this Court had arrived at the conclusion that in the absence of any leave obtained from the court for having omitted the claim for the relief of specific performance, the second suit would be hit by the provisions of Order II Rule 2(3). The relevant observations are reproduced hereinbelow: “20. In the present case, the earlier suit for injunction was instituted on 30-10-1996. Para 2 of the plaint in the suit for injunction contained a recital of the agreement to sell dated 26-10-1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of the defendant to perform the contract. Indeed, the plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26-10-1995. Under the agreement dated 26-10-1995, time for completion of the sale was reserved until 25-10-1996. Notice of performance was issued on 11-10-1996 to which the defendant had replied on 13-10-1996. The cause of action for the suit for specific performance had arisen when the plaintiff had notice of the denial by the defendant to perform the contract. On 30-10-1996 when the suit for injunction was instituted, the plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which para 2 of the plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the plaintiff

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omitted to sue for specific performance. This is a relief for which the plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted.” (emphasis supplied)

64. On a detailed examination of the aforementioned decisions, it can be seen that the variance in opinion that can observed as regards the applicability of the bar contained in Order II Rule 2 is due to a pertinent factual distinction i.e., the date when the refusal to perform the agreement for sale on part of the defendant was brought to the notice of the plaintiff. While in Virgo Industries (supra) and Vurimi Pullarao (supra) the plaintiffs had notice of the defendant’s refusal to perform even prior to the institution of the first suit for injunction, in Inbasagaran (supra) and Rathnavathi (supra), such a knowledge of the fact that the defendants had no intention to perform the agreement for sale was acquired after the first suit was instituted and through the defence which was put forth by the defendants to the first suit. This was precisely why the plea of bar under Order II Rule 2 was said to apply to the facts in Virgo Industries (supra) and Vurimi Pullarao (supra) and to be inapplicable to the facts in Inbasagaran (supra) and Rathnavathi (supra).

65. If the factual scenario of the present case is superimposed to those in the decisions as aforesaid, it can be seen that the respondent no. 1 (plaintiff) had filed a suit for permanent injunction against both the respondent no. 2 and the appellant in order to restrain them from interfering with the peaceful possession and enjoyment of the suit property by the respondent no. 1. In the plaint of the first suit for injunction, the respondent no. 1 averred as follows: “6. Quite unfortunately, the First Defendant for reasons best known to her, issued a letter on 2nd November 2007 (received by the Plaintiff on 5th November 2007) inter alia revoking the Power of Attorney issued in favour of the Plaintiff…

7. While these are the circumstances, the Defendant with an ulterior design and ill motive issued a letter to the Plaintiff on 06.02.2008 setting forth frivolous and vexatious

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contentions enclosing a sum of Rs. 1,50,000/- by way of demand draft. A copy of the said letter along with a copy of the demand draft is submitted herewith as document No. 6…

8. … The plaintiff also issued a notice through its counsel on 09.02.08 calling upon her not to sell the suit property to any person…” (emphasis supplied)

66. The revocation of the Power of Attorney which was issued in favour of the respondent no. 1 for the performance of all formalities in connection with the registration and execution of the sale deed on 02.11.2007, combined with the return of the entire sale consideration which was given by the respondent no. 1 on 06.02.2008 under alleged false pretexts, also combined with the lack of response to the letter dated 09.02.2008, was sufficient for the respondent no. 1, as a reasonable individual, to infer that the respondent no. 2 did not intend to perform her part of the agreement for sale dated 24.01.2007 and execute the sale deed in favour of the respondent no. 1.

67. Furthermore, in the plaint of the first suit, the respondent no. 1 alluded to the fact that it was aware of the purchase of the suit property by the appellant and stated thus: “9. The 2nd defendant claims to have purchased the property from the first defendant while the first defendant has no right, title or interest in respect of the suit property after having received the entire sale consideration. The second defendant cannot claim any right through the first defendant in respect of the suit property.

10. As already stated, the first defendant has no right title or interest in respect of the suit property after receiving the entire sale consideration from the plaintiff. The plaintiff’s possession is protected statutorily u/s Section 53 A of the Transfer of property Act. The second defendant cannot claim itself to be a bona fide purchaser as much as it is fully aware of the subsisting sale agreement which took place between the plaintiff and the first defendant.” (emphasis supplied)

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68. Adding to the above, in the plaint of the second suit, the respondent no. 1 additionally made an averment that when the respondent no. 2 and appellant i.e., the original defendants, demanded possession of the suit property during the second week of February 2008, they furnished a copy of the sale deed which was said to have been executed by the respondent no. 2 in favour of the appellant. This no doubt refers to the sale deed dated 24.01.2008. Thereafter, the respondent no. 1 proceeds to agree that the act on part of the respondent no. 2 in revoking the Power of Attorney and also executing a sale deed in respect of the suit property in favour of the appellant would by themselves sufficiently prove that the respondent no. 2 had refused to perform her part of the contract. Admittedly, both the events pre-existed the date of institution of the first suit. The specific averments are as follows: “VIII. During the second week of Feb 2008, the second Defendant attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the suit property and they demanded possession of the suit property with the help of anti-social elements with a copy of the sale deed said to have been executed by the First Defendant in its favour. Thus, the Plaintiff came to know about the alleged sale of the suit property by the First Defendant to the Second Defendant…” IX. The facts set out above would reveal that while the plaintiff has performed his part of the contract, the first defendant has failed to perform her part of the contract. The act on the part of the first defendant in revoking the power of Attorney and executing a sale deed in respect of the suit property in favour of the second defendant itself would prove that the first defendant has refused to perform her part of the contract.

xxx xxx xxx XVI. While the circumstances are such, the first defendant with an ulterior design and ill motive, issued a letter on 5th February 2008, forwarding a Demand Draft for Rs. 1,50,000/- inter alia mentioning that she is enclosing the said draft in connection with the repayment for the purchase of vehicle. A cursory perusal of the letter would

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reveal the reveal the motive behind issuing such a letter and the said letter has been issued with ulterior design and motive and the statement made in the letter is a blatant lie. While on 24th Jan, 2007, the first defendant has entered into an Agreement for Sale, executed the irrevocable power of Attorney and received the entire sale consideration, it is not understood as to what warranted the return of the demand draft. Evidently, this demand draft has been sent after executing the impugned sale deed illegally in favour of the second defendant…” (emphasis supplied)

69. The averments as regards the cause of action in the plaint of the second suit also indicate the fact that the respondent no. 1 was aware of the alleged sale deed dated 24.01.2008 entered into between the respondent no. 2 and the appellant during the second week of February 2008 and that this amounted to a deemed refusal on part of the respondent no.2 to perform the agreement for sale. It reads as thus: “The cause of the action for the suit arose on and from 24th Jan 2008 (sic – 2007) when the first defendant entered into the Agreement for sale with the plaintiff on 25th March, 2007 when the first defendant executed the irrevocable power of Attorney in favour of the plaintiff and when the payments were made under the Agreement for sale. On 7th September, 2007 when the agreement for sale was registered, on 24th January 2008 when the sale deed was executed by the first defendant in favour of the second defendant, on and from the 2nd week of the Feb, 2008 when the plaintiff came to know of the impugned sale deeds, on and from 24th Jan, 2008 when the first defendant registered the sale deed in respect of the suit property in favour of the second defendant which amounts to deemed refusal on her part to perform her part of the Agreement for sale and on all dates when the first defendant has failed to perform her part of the contract and at Thyagavalli village, Cuddalore District within the jurisdiction of this Honourable court.” (emphasis supplied)

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70. A conjoint reading of the aforementioned averments made by the respondent no.1 as the plaintiff in the plaints of both the suits would indicate that the refusal by the respondent no. 2 to perform the agreement for sale was brought to the knowledge of the respondent no. 1 much prior to the filing of the first suit. In other words, the notice of the refusal to perform on part of the respondent no. 2 preceded the filing of the first suit. Therefore, to this extent, the factual scenario would be akin to those in Virgo Industries (supra) and Vurimi Pullarao (supra). This might be why the Trial Court in its judgment and decree dated 30.04.2009 passed in I.A. No. 17 of 2009 and O.S. No. 122 of 2008 (second suit) had arrived at the conclusion that the second suit must be subjected to the bar imposed under Order II Rule 2. In other words, that when the respondent no. 1 could have prayed for a larger relief in their first suit, their omission to do so must preclude them for agitating the same subsequently.

71. However, in our opinion, the Trial Court had unfortunately failed to address a key aspect – whether more than one relief in respect of the cause of action which formed the foundation of the institution of the first suit was “available” to the respondent no. 1? In other words, whether the relief of specific performance and the relief to pray for the cancellation of the sale deed dated 24.02.2008 executed in favour of the appellant were “available” to the respondent no. 1 at the time of filing the first suit in view of the ban imposed on the registration of sale deeds at the Thyagavalli village by the G.O. dated 08.08.1986 issued by the Government of Tamil Nadu and the notification dated 23.10.2006 issued by the TNEB which exclusively allowed the appellant to register the sale deeds at the Thyagavalli village where the suit property is situate.

V. The “entitlement to” along with the “availability of” the relief as a requisite in determining the applicability of Order II Rule 2.

72. The Privy Council in Mohammad Khalil Khan (supra) elaborated on the true import of Order II Rule 2 as follows: “Shortly stated O. 2. R. 2, C.P.C., enacts that if a Plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect

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of the portion so omitted. To apply the rule to the facts of the case their Lordships will have to consider what was the cause of action in Suit No. 8, on which the Plaintiffs founded their claims, and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit. For, if they failed to include all the claims, then by force of O. 2, R. 2, they are precluded from including the claim omitted in the present Suit No. 2.” (emphasis supplied)

73. Order II Rule 2(1) reads that – “every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action…”. Similarly, Order II Rule 2(3) reads that – “A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs…”. It is necessary that the same intention also be read into Order II Rule 2(2) which reads that – “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”. The phrase “any portion of his claim” must essentially be understood to mean any portion of his claim which he is entitled to make for the simple reason that there cannot be a deliberate or intentional relinquishment of any portion of a claim, if the plaintiff was not entitled to it. Therefore, the true import of the bar under Order II Rule 2 must be that it operates to preclude a plaintiff from instituting a second suit, on the same cause of action, for a claim, any portion of a claim, or reliefs, which the plaintiff was entitled to avail at the time of filing of the first suit.

74. There may arise a situation where the plaintiff may be entitled to a relief but such a relief was not available at a certain point in time. In other words, that obtaining such a relief was impossible due to the circumstances which existed during the institution of the first suit. It is our opinion that, in such scenarios, Courts must give such an interpretation to the principles under Order II Rule 2 that is not bogged down by mere technicalities.

75. We are in agreement with the view taken by the Rajasthan High Court in Ramjilal v. Board of Revenue, Rajasthan reported in AIR 1964 Raj 114 wherein the High Court had opined that Order II

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Rule 2 does not require that a person must seek all the remedies to which he may be entitled to even though it would be impossible for him to obtain the remedy from the opposite party. Herein, it was not possible for the plaintiff to obtain the relief of possession from the respondent no. 2 in his initial suit since the respondent no. 2 himself was put in actual possession of the property much after the institution of the first suit. In such circumstances, it could not be said that the plaintiff had intentionally relinquished any portion of his claim or that he omitted to ask for a relief which he could otherwise obtain. The relevant observations are reproduced hereinbelow: “8. Now, in the present case, when the petitioner filed the first suit on 14th August, 1946, his claim was only for a declaration to the effect that the adoption of respondent No. 2 by Pusharam was invalid in law and for the relief that the adoption-deed should be cancelled. According to the admission of respondent No. 2 himself he was not in possession of the property in respect of which the second suit was filed on 1st July, 1954. It cannot therefore, be said that the plaintiff had intentionally relinquished any portion of his claim or that he omitted to ask for a relief which he could get from respondent No. 2. Even if he had sued for possession against respondent No. 2, he could not obtain a decree for possession against a person who was admittedly not in occupation of the same. It would, therefore, have been futile on the part of the petitioner to sue for possession against respondent No. 2 at that time. O. 2, R. 2 C.P.C. does not require that a person must seek all the remedies to which he may be entitled even though it be impossible for him to obtain them from the opposite party. It is true that respondent No. 2 had obtained a decree for possession against the landlords on 18th February, 1946, i.e., about six months prior to the institution of the petitioner’s suit, but the petitioner was not a party to that suit. It had nowhere been mentioned in the judgment of the learned Members of the Board of Revenue if the petitioner was even aware of the decree which respondent No. 2 had obtained against the landlords Moreover, even if it be assumed for the sake of argument that the said decree was in the knowledge of the petitioner, then too, he could

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not sue for possession, because respondent No. 2 was not put in actual possession of the property in execution of the decree. It was about three years after, i.e., on 11th March, 1949 that respondent No. 2 got possession of the property. In our opinion, the learned Members committed an error, which is patent on the face of the record, in holding that the petitioner ought to have sued for possession at the time when he filed the first suit on 14th August, 1946….

xxx xxx xxx

15. We think it unnecessary to burden the judgment by referring to other authorities. In our opinion, the learned Members of the Board of Revenue have committed an error, which is apparent on the face of the record i.e. from the very perusal of their judgment, in dismissing the suit filed by the petitioner on the grounds that it was barred by O. 2, R. 2 of the Code of Civil Procedure. They have also failed to exercise their jurisdiction by giving an incorrect interpretation to O. 2, R. 2 and not deciding the suit on merits.” (emphasis supplied)

76. We are also in agreement with the position taken by the Allahabad High Court in National Security Assurance Company Ltd. v. S.N. Jaggi reported in AIR 1971 All 421 in so far as it held that a subsequent suit in respect of a claim which was barred at the time of the earlier suit but revived later on by an enactment would not be hit by the provisions of Order II Rule 2. Here, the appellant insurance company had insured the goods of the respondent in his shop and his home respectively. During the disturbances and rioting which took place on 07.09.1947 and 08.09.1947, the respondent’s goods, both at his home and shop, were looted. While the applicant had raised a claim for the goods looted at his home, he did not raise any claim for the insured goods at his shop since he had no knowledge of it. However, when the factum of looting at his shop came to his knowledge, he intimated the insurer but the insurer took the defence that intimation of the loss was not made within 15 days of the occurrence of the looting as per the insurance policy. Under these circumstances, the respondent instituted a suit against

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the insurer for recovery of the amount which was to be paid on account of the loss of goods at his house only and the same ended in a compromise decree where the respondent accepted a sum of Rs. 5500. On 09.12.1951, the Displaced Persons (Debt Adjustment) Act, 1951 was applied to Uttar Pradesh, where the respondent was now residing. In such circumstances, the appellant then made a claim for recovery of the amount due from the insurer for the loss of goods at his shop on account of him being a displaced person and also a debt being due to him. The High Court opined that the Act enacted special provisions which revived the claim of the respondent and that it can be said that a fresh right was conferred on the applicant by the Act to recover the amount due from the appellant-insurer for the loss of the goods kept in the shop. Therefore, there would be no question of applicability of Order II Rule 2 in order to bar the respondent’s claim. The relevant observations are as thus: “20. There now remains to consider the argument whether the provisions of Order 2, Rule 2 were attracted and otherwise the applicant was not entitled to claim the amount he having accepted Rs. 5,500/- in full payment of the claim under the insurance policy.

21. ... As the law stood in 1948 the applicant under the terms of the policy was not entitled to recover the loss incurred by him for the destruction of goods of the shop or looting thereof as he had not been able to intimate of the loss to the company within fifteen days of the occurrence. Since the applicant had been able to intimate the loss of the insured goods kept in the house within fifteen days of the occurrence, he filed a suit No. 650 of 1948 in the Civil Court at Delhi for recovery of Rs. 8,000/- from the company which represented the risk which the company covered for the loss of the goods in the house. That being the position no question of the application of provisions of Order 2, Rule 2 will arise as in that suit which was instituted by the applicant in 1948 he could not, in law, claim a relief for the loss of the goods kept in the shop as under the terms of the insurance policy he could not recover the amount representing risk covered by the company for those goods. I think the Tribunal was right in holding that in the suit filed by the applicant in the Civil Court at Delhi

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the applicant could not have obtained any relief in respect of loss of the goods kept in his shop. The compromise in the said suit, to my mind, would remain confined to the claim in regard to the loss of the goods kept in the house of applicant and when the applicant who was the plaintiff in the suit accepted the sum of Rs. 5,500/- in full settlement of the claim under the policy it would only mean that he accepted that smaller sum as against Rs. 8,000/-, a sum claimed in full satisfaction of the claim under the policy relating to the loss of the goods kept in the house and not to the loss of the goods kept in the shop as they were not the subject-matter of the suit at all. I do not agree with the learned counsel for the appellant that the applicant is estopped now to raise any claim and re-agitate the matter as he would be deemed to have given up the claim in regard to the loss of the goods kept in the shop. I do not see how the provisions of Order 2, Rule 2, C.P. Code, or the principles of estoppel bar the applicant from recovering the money due under the insurance policy for the loss of the goods kept in the shop. In fact the company in 1948 told the applicant that he was not entitled to recover any thing in regard to the loss of the goods in the shop as the claim had not been made within the time as agreed under the policy, then to say now that the applicant could have claimed that sum will be allowing the company to blow hot and cold at the same time.

22. ... The Act enacted special provisions which revived the claim of the applicant and it can be said that a fresh right was conferred on the applicant by the Act to recover the amount due on the policy for the loss of the goods kept in the shop and in that view of the matter also no question of applicability or Order 2, Rule 2, C.P. Code or any principles of estoppel, can bar the applicant’s claim.” (emphasis supplied)

77. These decisions of the Rajasthan and Allahabad High Courts respectively, have rightly taken the view that when it is not possible for the plaintiff to obtain a particular relief in the first instance but such relief becomes available to him on the happening of a subsequent

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event, post the institution of the first suit, then the bar under Order II Rule 2 would not stand in the way of the plaintiff who has instituted a subsequent suit for claiming those reliefs. It can be said that the occurrence of that subsequent event gives rise to a fresh cause of action to the concerned plaintiff for claiming certain reliefs which he was otherwise prevented from claiming.

78. In Virgo Industries (supra), this Court had held that just because the relief for specific performance was premature on the dates on which the first set of suits were instituted, it would not mean that it could not be prayed for in the first suit, especially when the defendant made his intentions clear through his overt acts. This view was taken in a different factual context. In the said case, the plaintiff claimed that the suit for specific performance was premature on the date of filing of the first set of suits since the time for execution of the sale documents in terms of the agreement to sell had not elapsed. It is in this background that the Court had taken the view that a suit claiming a relief to which the plaintiff may become entitled to at a subsequent point in time, though may be termed as premature, yet, cannot be dismissed to be presented on a future date. However, such a view cannot be adopted in the facts of the present case since it is not the premature nature of the claim but the impossibility of it which prevented the respondent no. 1 from availing certain remedies. A mandatory bar was created by a G.O. issued by the State Government which disabled the respondent no. 1 from seeking the remedy which he was otherwise entitled to.

79. The G.O. Ms. No. 1986 dated 08.08.1986 issued by the Government of Tamil Nadu read with the notification dated 23.10.2006 issued by the TNEB imposed an absolute prohibition which restrained any individual land owner in the two villages of Thiyagavalli and Kudikkadu from transferring their lands either by way of sale or by any other mode to any third party other than to “M/s. Cuddalore Power Company Limited” who is the appellant herein. On the strength of this G.O., the revenue authorities refused to register the sale deeds pertaining to several extents of land, belonging to several individuals. Only sale deeds executed in favour of the appellant herein was being registered by the authorities. The Madras High Court while delivering its decision dated 05.03.2008 in the public interest litigation remarked that they were at a loss to understand as to how and under what provision of law such a prohibition could have been imposed and stated that

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any such ban would directly infringe the constitutional right of any land owner to his right to property.

80. During the institution of the first suit for permanent injunction by the respondent no.1 on 16.02.2008, the proceedings in the public interest litigation which challenged the G.O. dated 08.08.1986 was still pending before the High Court and the respondent no. 1 himself had also filed a separate writ petition challenging the actions of the registrar. Until the High Court quashed the G.O. dated 08.08.1986 vide order dated 05.03.2008 passed in the public interest litigation, the respondent no. 1 could not have registered a sale deed in his favour or sought for the relief of specific performance. It must be highlighted that the factual situation herein is slightly different from one where there is a statutory requirement under any law which mandates that a permission/sanction from certain competent authorities must be obtained before registering a sale deed. In such a situation, the court would be empowered to grant a conditional decree of specific performance subject to such permission/sanction being obtained by the appropriate party and a suit for specific performance would be maintainable. However, in the present peculiar facts, there was an absolute ban and not a conditional restriction to execute the sale deeds. Therefore, a suit for specific performance could not have been instituted by the respondent no.1 since it would have been nothing but a futile attempt.

81. It is worthy to be noted that the respondent no. 1 had approached the revenue authorities multiple times for registering a sale deed in its favour but was faced with a denial from the authorities on every one of these attempts. As a natural next course of action, the respondent no. 1 filed their own writ petition dated 21.01.2008 challenging such a refusal. When the order dated 05.03.2008 quashing the G.O. dated 08.08.1986 was passed, the rights of the respondent no.1 had been crystallized and a relief which was impossible to obtain earlier due to the existence of a State Government imposed ban was now made available to the respondent no.1. It was on the basis of the decision dated 05.03.2008 that the writ petition which was filed by the respondent no. 1 was disposed of by a single judge of the High Court on 25.03.2008. Therefore, a new cause of action for obtaining the relief of specific performance directing the respondent no. 2 to execute the sale deed in favour of the respondent no. 1 and for seeking the cancellation of the sale deed dated 24.01.2008 entered

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into between the respondent no. 2 and the appellant had arisen on 05.03.2008 and on 25.03.2008 respectively.

82. The counsel for the appellant argued that extraneous matters cannot be projected as giving a cause for the second suit, unless such extraneous matters had been set forth in the agreement to sell itself so as to postpone the cause for filing a suit for specific performance. It was alleged that the respondent no. 1 entered into an agreement to sell on 24.01.2007 being fully aware of the facts that were prevalent on the said date and therefore, cannot plead extraneous matters for the purpose of saving the second suit. Furthermore, it was their case that these extraneous matters were neither set forth in the cause of action paragraph provided in the second plaint nor were they argued before the High Court in the proceedings which resulted in the impugned judgment.

83. We are unable to agree with these contentions raised by the counsel for the appellant. First, it would be unfair to the respondent no. 1 to hold that the decisions of the Madras High Court dated 05.03.2008 and 25.03.2008 respectively relating to the G.O. would not be of any benefit whatsoever to their cause just because the existence of such a ban was not mentioned in the agreement to sell which was entered into with the respondent no. 2. It is clear that the ban prevented the respondent no. 1 from obtaining a title to the property which he otherwise could have obtained if not for the existence of such peculiar circumstances. Furthermore, averments relating to these decisions of the Madras High Court were mentioned in the second plaint. Therefore, in the interests of justice, the decisions dated 05.03.2008 and 25.03.2008 must be held to have given rise to a new cause of action to the respondent no. 1 for the agitating the reliefs in the second suit.

84. Secondly, it cannot be accepted that the respondent no. 1 was fully aware of the circumstances relating to the ban at the time of entering into the agreement to sell and would therefore, be precluded from relying on the decision lifting the ban to postpone his cause of action. Such a fact cannot be inferred from the plaints which have been placed before us. On the other hand, from the averments of the plaint, it can be seen that the agreement to sell was registered by the respondent no. 1 with the Joint Sub-Registrar, Cuddalore on 07.09.2007 without any hassle. Even at this stage, the revenue

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authorities had not brought it to the knowledge of the respondent no. 1 that the agreement to sell could not be registered in his favour due to the operation of the ban. It is only when the respondent no. 1 approached the revenue authorities on multiple occasions for the execution of the sale deed that the reluctance of the registrar was noticed and a writ petition had been immediately filed challenging the actions of the registrar. Therefore, we see no reason to doubt the bona fides of the respondent no. 1.

85. Thirdly, it cannot be said that such extraneous matters are not set forth in the plaint. On the contrary, on a holistic reading of the both the plaints, it can be seen that the respondent no. 1 indicated in the first plaint that a writ petition instituted by them before the High Court challenging the actions of the registrar is pending and in the second plaint, they had averred that the High Court had quashed the G.O. dated 08.08.1986 in a public interest litigation and had also disposed of their writ petition. It is, however, true that the specific pleadings as regards the cause of action does not contain the date on which the High Court had decided the public interest litigation i.e., 05.03.2008 or the date on which the writ petition of the respondent no. 1 was disposed of i.e., 25.03.2008. However, it is difficult for us to subscribe to such a technical view that since these dates do not figure in the paragraph relating to the cause of action in the second plaint as giving rise to a new cause of action to the respondent no.1, the same would not save the second suit. As indicated by us in our forgoing discussion, the plaint should be read as a whole and certain specific paragraphs or lines should not be isolated to arrive at a restricted view. As far as the contention that these arguments were not raised before the High Court goes, a bare perusal of the Memorandum of Grounds of Appeal filed by the respondent no. 1 would indicate that the grounds relating to the ban imposed by the G.O. dated 08.08.1986 and the subsequent decision of the High Court in the public interest litigation as also in the writ petition filed by the respondent no. 1 were agitated during the second appeal as well.

86. It is established law that the principles governing the applicability of the provisions of Order II Rule 2 do not operate as a bar when the subsequent suit is based on a cause of action different from that on which the first suit was based and that the identity of the causes of action in both the suits must be the material consideration before the court which decide the applicability of this provision to a second suit

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filed by the plaintiff. It would be incorrect for us to hold that merely because the pleadings in the plaint filed in O.S. No. 28 of 2008 and the plaint filed in O.S. No. 122 of 2008 are similar to some extent, the causes of action are also identical. Rejecting the plaint in the second suit i.e., O.S. No. 122 of 2008 would result in depriving the respondent no. 1 from claiming the relief of specific performance of the agreement for sale dated 24.01.2007 and the cancellation of the sale deed dated 24.01.2008. In this regard, we have examined the entire factual matrix along with the causes of action on which both the suits were founded, through a holistic reading of the plaints placed before us. In our opinion, the reliefs in the subsequent suit are in fact founded on a cause of action which is distinct from that which is the foundation of the former suit. The facts which are necessary to be proved and the evidence to support the claims in the second suit are also different from that of the first suit. Therefore, it cannot be said that the respondent no. 1 could have prayed for the reliefs claimed in the subsequent suit at an earlier stage.

87. The High Court could be said to have fallen in error in failing to notice that the crucial fact which acted as a linchpin in saving the second suit was its own decisions dated 05.03.2008 and 25.03.2008 respectively which set aside the ban imposed by the G.O. dated 08.08.1986 and directed the registrar to register the sale deeds pertaining to the suit property. However, for altogether different reasons than what has been elaborated by us, the High Court held that the bar under Order II Rule 2 was not applicable and that the respondent no. 1 would not be prevented from instituting the second suit. As a consequence, the plaint in the second suit i.e., O.S. No. 122 of 2008 was restored. The Trial Court was accordingly directed to decide both the suits together on their own merits and in accordance with law, within a period of six months. We do not wish to disturb the ultimate conclusion arrived at by the High Court.

88. The questions relating to whether such an agreement for sale dated 24.01.2007 could have been entered into by the respondent no.1 in ignorance of the subsistence of the ban which was imposed by the G.O. dated 08.08.1986 to begin with and whether the appellant entering into a subsequent sale deed dated 24.01.2008 during the existence of the aforementioned agreement to sell was a bona fide purchaser of the suit property, along with all other pertinent questions, are all issues which will have to be determined by the Trial Court on merits.

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89. In so far as the appeal preferred against the decision of the High Court dated 01.09.2016 in C.M.P. No. 12498 of 2016 in S.A. No. 858 of 2014 is concerned, we find no reason to make separate observations since after a detailed examination of the two plaints, we have also arrived at the conclusion that the bar under Order II Rule 2 would not be applicable to the facts of the present case.

F. CONCLUSION

90. In view of the aforesaid, it is held that the bar under the provisions of Order II Rule 2 CPC would not stand in the way of the institution of the second suit by the respondent no. 1 (original plaintiff).

91. It is made clear that this Court has not expressed any views on the merits of the matter.

92. In view of the above, the appeals fail and are hereby dismissed.

93. Pending application(s), if any, stand disposed of.

Result of the case: Appeals dismissed.