1. This is a Second Appeal filed by the original plaintiff impugning a judgment and order passed by the 6th Additional District Judge, Nasik on 10.1.1992 in Civil Appeal No.146 of 1986. By the impugned judgment and order the appellate Court has partly allowed an appeal filed by the original defendants and while dismissing the plaintiff?s claim for specific performance, has passed a decree directing the defendants to pay an amount of Rs.8300/- in lieu of the alternate claim made by the plaintiff.
2. The brief facts of the case were as follows:
(a) That by an agreement of sale dated 15.7.1974 (Exh.38) the predecessor in title of the defendants one Hari M. Kekan agreed to sell 47 R?s of land out of gat no.1568 to the original plaintiff. The consideration for sale was Rs.7000/-, out of which earnest money Rs.4200/- was paid to the plaintiff.
(b) By a further agreement dated 15.12.1974 (Exh.40) the predecessor in title of the defendants, Hari M. Kekan agreed to sell a further 15 R?s of the land out of the same gat number to the plaintiff. The consideration for sale was Rs.2500/- and the amount of Rs.500/-was received by Hari towards earnest money.
(c) By a 3rd agreement dated 15.11.1974 (Exh.39) Hari agreed to sell a further area of 20 R of land to the plaintiff. The consideration of the sale was Rs.3000/-and Hari received an amount of Rs.500/ towards earnest money.
(d) By a further agreement dated 20.9.1975 (Exh.31) Hari consolidated all the aforesaid 3 transactions and by a fresh agreement (hereinafter referred to as the suit agreement) and agreed to sell the above mentioned 82 R?s from gat no.1568 to the plaintiff. The agreement recorded that total consideration was Rs.12,500/-out of which Rs.10,000/-had already been received. The details of the amount of Rs.10,000/-received was given in the agreement itself. It may be mentioned here that in these details there were 2 payments of Rs.1700/- said to have been made on 18.1.1985.
(e) The agreement further recorded that the amount of Rs.10,000/- had been taken for household purpose, for repaying persons, for payment of instalments of the land development bank and towards cost of agricultural operations. It contemplated that the costs of the transaction were to be borne by the plaintiff. The cost of obtaining any permission were to be borne by Hari. It was also recorded that the land would be given in possession at the time of the sale deed.
(f) That on 13.10.1975 the plaintiffs filed a suit for permanent injunction against Hari being RCS No.199/75. This suit was filed on the footing that the defendants were obstructing their possession. In this suit, reliance was placed upon averments in some of the earlier agreements executed in 1974 to the effect that possession of the lands were granted.
(g) That in the year 1978, the plaintiff filed another Civil Suit being RCS No.183/78 for specific performance of the suit agreement dated 20.9.1975. This suit was also filed in the Court of the Civil Judge, Junior Division, Sinnar where the earlier suit for injunction had been filed.
(h) By a joint pursis filed by both the parties, common evidence was agreed to be led in both the suits and was accordingly so led. During the pendency of these suits, original defendant Hari Mahadu Kekan expired and his heirs were brought on the record.
(i) On behalf of the plaintiff the 1st witness examined was the plaintiff Vithoba Ramji Pansare to prove the signature of Hari on the suit agreement dated 20.9.1995. He stated in his evidence that the agreement of sale was executed by Haribhau in his presence. That after calculating old transactions, an amount of Rs.10,000/- was shown as paid to the deceased Haribhau as earnest money and remaining amount was agreed to be paid at the time of sale deed. That, at the time of the agreement he had asked Hari about the permission for sale and Hari had informed him that he had already applied for permission. That at the time of the agreement, Hari had separated from his brothers Mahadu and Ananda. He also referred to and proved the earlier agreements dated 15.7.1974, 15.11.1974 and 25.11.1974. Witness no.2 of the plaintiff was Vasant Balwant Deshpande who was the bond writer in respect of the transaction dated 28.2.1978 between Hari M.Kekad and his brother Ananda M. Kakad whereby Ananda had purchased 24 R out of gat no.1568. PW-3 examined by the plaintiff was Ashok Baburao Ingale who was the clerk of an Advocate. This witness was examined to show certain adjustments towards agreement of sale dated 15.7.1974 (Exh.38).
(j) On behalf of the defendant the 1st witness examined was Rakhmabai Hari Kekan who was the widow of deceased Hari. She contended that her husband has no legal necessity to sell the suit property to the plaintiff. She denied that any such agreement had been executed. Her case was that the deceased husband was in the habit of drinking liquor and due to this habit he was not able to understand the nature of the transaction. It was her case that plaintiff got certain writings from the deceased husband when he was under the influence of liquor. She stated that neither Hari nor his heirs had received any amount pursuant to the suit agreement. In her cross-examination however, she admitted that her husband was not telling her about the transactions which he was entering into.
3. Based upon the evidence on record, by a common judgment and order delivered in both the aforesaid suits, the trial Court, while dismissing RCS No.199/75 filed by the plaintiff, was pleased to decree the 2nd suit bearing RCS No.183/78 filed by the plaintiff, with costs. The trial Court directed the defendant to execute a sale deed in respect of the suit property i.e. 82 Ares towards western side of gat no.1568 in favour of the plaintiff by accepting Rs.2500/- within four months from the date of passing of the decree. It was directed that if the defendants in the said suit failed to execute the sale deed in respect of aforesaid suit property then the plaintiff was entitled to get the sale deed executed through the Court on behalf of the defendant and that the plaintiff was directed to deposit Rs.2500/- in the Court within one month from the date of passing of the order. The defendants in RCS No.183/78 were further directed to hand over the possession of the suit property to the plaintiff within four months from the date of the order. Defendants were further directed to pay cost of the suit to the plaintiff and to bear their own.
4. Being aggrieved by the judgment and order passed by the trial Court, the heirs of the original defendant filed Civil Appeal No.146/86 in the Court of the District Judge at Nasik. This appeal was filed against the decree of specific performance passed against them in RCS No.183/78.
5. By a judgment and order dated 10.1.1992 the 6th Additional District and Assistant Sessions Judge, Nasik was pleased to partly allow the aforesaid Civil Appeal No.146/86. He set aside the decree for specific performance and instead directed that the defendants should pay Rs.8300/-towards the alternative claim of the plaintiff and further directed that defendant should also pay interest @ 6% p.a. on the decreetal amount from the date of filing the suit till the realisation of the decree.
6. It is in these circumstances that the original plaintiff has filed the aforesaid Second Appeal in this Court.
7. At the stage of admission the substantial questions of law framed by this Court were as under:
(1) Whether there was any material before the 1st Appellate Court on the basis of which it could come to the conclusion that a composite agreement (Exh.31) arrived at in substitution of agreements Exhibits 38, 39 & 40 was not to be acted upon?
(2) Whether the 1st Appellate Court correctly interpreted and applied section 20 of the Specific Relief Act 1963 while denying the remedy of specific performance to the original plaintiff as discussed in paragraph-24 of the judgment of the 1st Appellate Court ?
8. I have heard both the sides at length. Perused the entire record and the various authorities cited by both sides. In my view, the appeal deserves to be allowed and the prayer of plaintiff for specific performance deserves to be granted as the substantial questions of law as framed are required to be answered in favour of the original plaintiff, for the following reasons:
(i) It appears that the appellate Court laid much emphasis on the fact that though the suit agreement recorded the payment of Rs.10,000/- on various dates as disclosed in the said agreement, two amounts of Rs.1700/- were shown to have been paid on 18.1.1975. The Court noted that as regards these duplicate entries, the plaintiff had admitted that amount of Rs.1700/-has been mentioned twice due to mistake. Inspite of this admission on the part of the plaintiff the Court concluded that the theory of the plaintiff regarding payment of Rs.10,000/- appeared to be incorrect. The appellate Court therefore, raised the question as to whether the document (Exh.31) was to be acted upon or not. In my view, merely from the fact that the full amount of Rs.10,000/-was not paid by the plaintiff and even assuming that the amount actually paid by the plaintiff was Rs.8300/-, this short payment could not have been the basis for raising the question as to whether document (Exh.31) has to be acted upon or not. Both the courts have accepted the fact that this document was in fact executed between the plaintiff and Hari. In fact, the appellate Court had granted the alternate prayer of the plaintiff for refund of Rs.8300/- which according to the Court was the earnest amount actually paid. Thus, decree of the appellate Court was obviously on the footing that the suit agreement had in fact been executed between the plaintiff and Hari.
(ii) In my view, that mere fact of short payment could not have been basis of the appellate Court to have concluded that the duly executed and proved agreement of sale (Exh.31) was not to be acted upon.
9. In paragraph-20 of the judgment the appellate Court also came to the finding that though the defendants have not adduced sufficient evidence to establish that the amount which was obtained by a husband Hari has not been utilised for her family, the plaintiff was also required to discharge the burden by establishing that the deceased defendant has utilized the amount which was mentioned in the agreement of sale for the benefits of his family. There is no supporting law for such a proposition. It is not normally possible for the plaintiff in such cases to know as to how the defendant has utilized the amount as normally plaintiff cannot be a witness to the manner in which such amounts are spent. The finding of the Court that the plaintiff has not sufficiently established that the deceased defendant has utilised the entire amount which he obtained in pursuance of Exhibits 38, 39, 40 & 41 for the benefit of the defendant?s family is perverse as there is no such burden cast by law upon the plaintiff.
10. This was a matter in respect of which the evidence could only have been led by the defendants. By thus shifting the burden the appellate Court arrived at erroneous finding that the suit agreement was not for the benefit of his family but for some other cause.
11. On behalf of the original defendants it was sought to be contended that though both the suits were tried and decided together, yet the 2nd suit was barred by the provisions of order 2 rule 2 of the Code of Civil Procedure. Reliance was placed upon 3 judgments of this Court. The 1st was the judgment of this Court in the case of Smithkline Beecham V/s. Hindustan Lever Ltd., reported in (2002(1) Mh.L.J. 453). In the said case it was observed by this Court as under:
"The conduct of a litigant of not including all the grounds available to him on the subject in dispute in one suit and instituting several suits against the same parties on the same subject in dispute is an abuse of the process of the Court. The scheme of the Civil Procedure Code is that a plaintiff should raise all the grounds available to him on the subject in dispute in his first suit. The Civil Courts do not have jurisdiction to try the suits, institution of which is contrary to the scheme of the Civil Procedure Code, which discourages repeated litigation on the same subject, between the same parties. The provisions of the Civil Procedure Code relevant in this regard are contained in sections 9, 11, 151 and Order 2, Rules 1 and 2. It is clear from the provisions of Order 2 Rule 1 of the Civil Procedure Code that it obliges a plaintiff to frame his suit in such a manner that a final decision can be rendered by the Court in that suit on the subject in dispute. It goes without saying that if a particular ground is not within the knowledge of the plaintiff, though it is on the same subject, when the suit is filed, no fault can be found with the plaintiff. Therefore, phrase "as far as practicable" has been used by Order 2, Rule 1 of the Civil Procedure Code. The provisions of Order 2 Rule 1 of the Civil Procedure Code oblige a plaintiff to raise in his suit all the grounds available to him, on the subject in dispute, which he was capable of raising when the suit was filed. It is further clear from the provisions of Order 2, Rule 1 of the Civil Procedure Code that this duty has been cast on the plaintiff to prevent further litigation on that subject between the parties. With the same object provisions of Section 11, Explanation IV of the Civil Procedure Code have been enacted. The provisions of section 11 Explanation IV and Order 2, Rule 1 are in furtherance of the same scheme i.e. to prevent repeated litigation between the same parties on the same subject. Rule 1 of Order 2 uses the phrase "subject in dispute" and not the phrase "cause of action" which is used in Rule 2 of Order 2 of the Civil Procedure Code. Similarly section 11 of the Civil Procedure Code uses the phrase "matter which might or ought to have been a ground of attack." It thus appears that, though there are several causes of action available to a plaintiff, if all the causes of action are relating to the subject in dispute, then Order 2 Rule 1 obliges the plaintiff to include all those causes of action in one suit, if it is practicable for the plaintiff to do so. If a plaintiff disregards the mandate of Order 2 Rule 1 and institutes a suit leaving out some grounds available to him on the subject in dispute and subsequently institutes a suit on the grounds which are left out from the earlier suit, then, in case the earlier suit has already been finally decided then section 11 of the Civil Procedure Code will bar the subsequently instituted suit, but, in case the previously instituted suit is still pending then the provisions of section 9 of the Civil procedure Code would bar such a suit. Institution of a suit contrary to the scheme of Civil Procedure Code, has to be said to be barred by necessary implication. It cannot be said that Civil Courts have the jurisdiction to try the suits, institution of which is contrary to the scheme of the Civil Procedure Code, which discourages repeated litigation on the same subject. Therefore, it becomes the duty of the Court to make an order in exercise of inherent power under section 151 of the Civil Procedure Code, which may be necessary for preventing an abuse of the process of the Court. The scheme of the Civil Procedure Code bars the jurisdiction of the Civil Courts, to try the suits, institution of which amounts to abuse of the process of the Court."
12. The 2nd judgment relied upon was the judgment in the case of Gajanan R. Salvi V. Satish Shankar Gupte reported in (AIR 2004 Bombay 455). In this case an earlier suit has been filed for injunction simplicitor and subsequently suit for specific performance of agreement coupled with relief of possession has been filed. That the relief claimed in the later suit was within the knowledge of the plaintiff at the time of filing earlier suit because all allegations made in previous suits were enough to ask for relief prayed in later suit. It was held by this Court that the order dismissing the later suit barred by Order 2 Rule 2 was proper.
13. Lastly, reliance was placed upon a judgment of a single Judge of this Court in the case of SNP Shipping Services Pvt. Ltd., V. World Tanker Carrier Corporation reported in (2000 (2) Mh.L.J. 570). In this case the Court held that the provisions of order 2 rules 1 & 2 of the Code of Civil Procedure were mandatory in nature. The term "shall" and not "may" occurs in all the rules. Thus under Order 2, Rule 1, the plaintiffs were duty bound to claim the entire relief. The suit was required to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. That Rule 2 further enjoined on the plaintiff to include the whole of the claim which the plaintiff was entitled to make in respect of the cause of action.
14. On behalf of the appellants (original plaintiffs) it was contended that the point sought to be raised relating to Order 2 rule 2 would not arise at all in the Second Appeal as it was not taken in the written statement or even in the grounds of appeal before the appellate Court. Reliance was placed upon the judgment of the Apex Court in the case of Rikabdas A. Oswal V/s. Deepak jewellers reported in (JTI 1999 (10) SC 67). In this case also the point relating to Order 2 rule 2 had not been raised by the defendants in their written statement or even in the grounds of appeal before the appellate authority. In this context the Apex Court observed as under:
"Be that as it may, the tenant respondent not having taken the plea of bar of subsequent suit under Order 2 Rule 2 C.P.C. in the written statement itself nor even in the grounds of appeal before the appellate authority while preferring the appeal and also in the application for review, the learned District Judge could not have entertained the plea of bar of the subsequent proceedings on account of Order 2 Rule 2 C.P.C. and decided the same."
15. Some faint attempt was made on behalf of the appellant to contend that though the said point was not raised in the written statement it could be said to have been raised in the appeal before the District Court by virtue of ground 19 which read as follows:
"The fact that in the year 1975 the plaintiff filed a suit for injunction alone has been ignored by the Lower Court".
In my view, the aforesaid ground is not tantamount in raising objection to the maintainability of the 2nd suit or the jurisdiction of the Court to entertain the 2nd suit under Order 2 Rule 2. In this view of the matter and in view of the observations made by the Apex Court, I refrain from entertaining this ground based upon Order 2 Rule 2, which has been raised in the firs
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t time in the Second Appeal. 16. In the net result, Second Appeal is allowed. The judgment and decree passed by the lower appellate Court is set aside and it is decreed as follows: (a) The defendants of Regular Civil Suit No.183 of 1978 are hereby directed to execute the sale deed in respect of the suit property i.e. 82 Ares towards the western side of Block No.1568 in favour of the plaintiff by accepting Rs.2500/- within four months from the date of this order; (b) If the defendants of Regular Civil Suit No.183 of 1978 fail to execute the sale deed in respect of the suit property i.e. 82 Ares towards the western side out of Block No.1568, the plaintiff is entitled to get executed the sale deed of the suit property through the Court on behalf of the above defendant the plaintiff is directed to deposit Rs.2500/-in the Court within one month from the date of this order, if not already deposited. This deposit will be in addition to the deposit of Rs.1,00,000/already made in this Court. (c) The defendants of Regular Civil Suit No.183 of 1978 are further directed to hand over the possession of the suit property i.e. 82 Ares towards the western side of Block No.1568 to the plaintiff within four months from the date of this order; (d) The defendants of Regular Civil Suit No.183 of 1978 are further directed to pay costs throughout. 17. Before finally parting with the judgment, it may be stated that the appellants on their own in addition to what was paid under the suit agreement, taking into account rise in prices, were unilaterally agreed to deposit Rs.1 lakhs in the Court within 15 days. Similar statement was also made by the Counsel appearing for the respondents that his client was willing to deposit Rs.1,25,000/in this Court within 15 days. I am informed that though both these deposits have been made, in view of the aforesaid judgment and order the respondent will be at liberty to withdraw the entire amount of Rs.2,25,000/-which has stand deposited in this Court. Second Appeal disposed off accordingly.