w w w . L a w y e r S e r v i c e s . i n

K. Vijayalakshmi & Another v/s A. Prakash, rep. by his Power Agent, S. Sundaramurugesh

    C.R.P.(PD) No. 834 of 2021 & C.M.P. No. 6929 of 2021

    Decided On, 25 January 2022

    At, High Court of Judicature at Madras


    For the Petitioner: P. Valliappan, Advocate. For the Respondent: Kanmani Annamalai for Tamizh Law Firm, Advocates.

Judgment Text

(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the Fair and Decretal Order passed by the Principal District Munsif Court at Coimbatore, dated 24.4.2019 in I.A. No.1509 of 2016 in O.S. No.1353 of 2016.)

1. The Order challenged in this Revision is one granting leave to the Plaintiff to reserve liberty to sue for the relief of recovery of money at a subsequent point of time on the same cause of action.

2. The facts that led to the filing of the present Suit and the Application for leave are as follows:

2.1. The property in question originally belonged to one Rathinasamy and his son Viswanathan, they executed a Power of Attorney in favour of one Rangasamy on 7.5.2009. The said Rangasamy sold the property to the present Plaintiff on 4.1.2010. The Plaintiff had sold the property to the First Defendant on 30.11.2010 under a registered Sale Deed, which has been registered as Document No.13867 of 2010. The Plaintiff filed the instant Suit for a Mandatory Injunction directing the Defendants 1 & 2 to measure the property with the help of Taluk Surveyor and to fix the Boundary Stones in the property and for Permanent Injunction restraining the Defendants from alienating or encumbering the properties.

2.2. The claim of the Plaintiff is that on 30.11.2010 itself, Defendants 1 & 2 had entered into an Agreement with him, which is titled as a Consent Deed, agreeing to have the property measured by the Taluk Surveyor after evicting the occupants namely Rathinasamy and Viswanathan, to pay consideration for the entire land that is found to exist at Rs.1,40,000 per cent. It was also agreed that Defendants 1 & 2 would retain a sum of Rs.25,00,000 out of the said consideration as expenses for evicting Rathinasamy and Viswanathan. It is this Consent Deed which is now sought to be enforced by the Plaintiff by seeking a relief of Mandatory Injunction. Along with the Suit, the Plaintiff filed an Application in I.A. No.1509 of 2016 seeking liberty to sue for money at a subsequent point of time on the same cause of action.

3. This Application was resisted by the Defendants contending that the Plaintiff cannot be allowed to reserve liberty to sue for the main relief at a later point of time. He should seek for the main relief along with the other auxiliary reliefs and he cannot seek the auxiliary reliefs without seeking the main relief.

4. The learned Trial Judge considering the nature of the Agreement held that only after measuring the property and ascertaining the extent, the Plaintiff would be able to crystallise the consideration or the money that would be due to him under the Consent Deed. Therefore, the learned Trial Judge allowed the Application.

5. Mr. P. Valliappan, learned Counsel appearing for the Petitioners would vehemently contend that the Plaintiff cannot be allowed to reserve the main relief in the Suit and seek auxiliary reliefs. He would further argue that the very Suit is barred by limitation and therefore, reservation of a right to sue on the basis of certain fact to be ascertained in a Suit that is on the face of it barred by limitation is not possible. It is the further contention of Mr. P. Valliappan, that the reasons for reservation of the right have not been properly explained. He would also rely upon the Judgment of the Hon'ble Supreme Court in Virgo Industries (Eng.) P. Ltd. v. Venturetech Solutions P. Ltd., 2012 (5) CTC 359 (SC): 2013 (1) MWN (Civil) 224 (SC). My attention is also drawn by Mr. P. Valliappan, to the Judgments of this Court in Subbiah and others v. Thiruneelapandian and others, 2017 (6) CTC 1 (Mad); and R. Chendilvel v. G. Damodaran and others, 2015 (2) CTC 129 (Mad): 2015 (2) MWN (Civil) 531.

6. Contending contra, Mr. Kanmani Annamalai, learned Counsel appearing for the Respondent would contend that the Plaintiff is forced to seek liberty to reserve the prayer for recovery of money, inasmuch as, the actual amount due could be ascertained only after measurement of the property. According to him, since the Defendants are not cooperating in measuring the property, he is forced to file the present Suit seeking Mandatory Injunction and Permanent Injunction.

7. Drawing my attention to the terms of the Agreement, Mr. Kanmani Annamalai, learned Counsel for the Respondent would submit that the agreement contemplates eviction of Rathinasamy and Viswanathan, followed by measurement of the property by a Taluk Surveyor, ascertainment of the actual extent of land; fixation of the total consideration at Rs.1,40,000 per cent for land that is available on ground; retention of Rs.25,00,000 towards expenses incurred for eviction of Rathinasamy and Viswanathan; and payment of the balance amount by the Defendants to the Plaintiff. Only after the first two steps are completed, the actual amount that would be payable by the Defendants to the Plaintiff could be ascertained and therefore, according to Kanmani Annamalai, the Plaintiff cannot sue for recovery of money at this stage. Conceding that the Affidavit in support of the Application does not disclose the reason in so many words, the learned Counsel would submit that if the Court finds that sufficient cause is available for the Plaintiff to seek reservation then permission under Order 2, Rule 2 sub-rule (3) of the Code of Civil Procedure, should be granted.

8. I have considered the submissions of the learned Counsel for the parties.

9. Though Mr. P. Valliappan, learned Counsel appearing for the Petitioners, would attack the very validity of the Consent Deed and enforceability of the said instrument, I do not think that those issues could be conveniently gone into at this stage. Therefore, all issues on merits including the validity of the Consent Deed, the fact whether the Suit is in time or not are reserved for determination at the appropriate time. The decision in this Civil Revision Petition is confined only to testing the correctness of the order of the Trial Court granting leave to reserve the right to sue for money.

10. As I have already stated the relief of recovery of money is dependent on happening of certain events. According to the Plaintiff, those events have not taken place. Therefore, the actual amount for which the Plaintiff would be entitled to sue itself cannot been ascertained. It could be ascertained only upon measurement of the property and ascertainment of the actual extent. Therefore, the Plaintiff has to necessarily wait till the completion of those formalities in order to sue for money.

11. The Trial Court has only said this and concluded that because of the disability faced by the Plaintiff, the Plaintiff should be given an opportunity.

I am unable to fault the Trial Court for having granted the liberty. No doubt the contention of Mr. P. Valliappan, that the main relief cannot be reserved in very attractive, but in a Contract of this nature where the main relief depends on performance of certain other acts by the parties under the Contract itself and one of the parties complains that the other party is not cooperating in performing those acts the Courts cannot conclude that the party should seek for all the reliefs de hors the disability faced by them.

12. Sub-rule (3) of Rule 2 of Order 2 of the Code of Civil Procedure, does not make any difference between the main relief and the auxiliary reliefs. It only states that where the Plaintiff being able to sue for all the reliefs omits to sue for any one of them without obtaining the leave of the Court, he would be precluded from suing for the relief so omitted subsequently. Therefore, the contention that the main relief cannot be reserved, in my opinion, will have to be confined to cases, were the Plaintiff was in a position to seek the main relief, but refrains from seeking or in cases where the Plaintiff does not claim that the main relief could not be sought for in view of certain circumstances.

13. A reading of the Plaint in the case on hand shows that the Plaintiff has specifically pleaded that he is unable to seek the relief for recovery of mo

Please Login To View The Full Judgment!

ney because of the non-cooperation of the Defendants in having the property measured. In view of such statement having been made in the Plaint, I do not think the Trial Court was wrong in granting the permission. No doubt the Hon'ble Supreme Court has held that such permission should be granted only for sufficient reasons in Virgo Industries (Eng.) P. Ltd. v. Venturetech Solutions P. Ltd., referred to supra. I find that sufficient reasons do exist in the case on hand to justify the conclusion of the Trial Court. 14. Therefore, the Civil Revision stands dismissed. The Defendants are entitled to raise all contentions that are open to them in the Suit and the Trial Court will decide the Suit without being influenced by any of the observations made either in the Order under challenge or in this Order. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to Costs.