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Gurinder Pal v. Jagmittar Singh
Factual and Procedural Background
The defendant-respondent entered into a contract to sell an urban plot of land in favour of the plaintiff-appellant. Apprehending that the property might be alienated to a third party, the plaintiff first filed a suit for permanent injunction restraining alienation in favour of anyone other than the plaintiff. On 15 June 1994, the Trial Court recorded the plaintiff’s statement that he did not wish to continue the injunction suit and sought permission to withdraw it with liberty to file a fresh suit. The Trial Court then dismissed the suit “as withdrawn” in view of the plaintiff’s statement.
Subsequently, the plaintiff filed a suit for specific performance (with an alternative prayer for refund). The Trial Court decreed specific performance. In first appeal, the District Judge held that specific performance was barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC), on the reasoning that the relief had not been sought in the earlier suit and that the earlier suit had been withdrawn unconditionally; however, the First Appellate Court granted a money decree for Rs. 30,000/- with interest and also recorded other reasons for refusing specific performance. The High Court dismissed the second appeal, upholding the First Appellate Court’s decree. The plaintiff sought review, which was also dismissed. The present special leave appeals challenged the High Court’s dismissal of the second appeal and the dismissal of the review petition.
Legal Issues Presented
- Whether the plaintiff’s subsequent suit for specific performance was barred by Order 2 Rule 2 CPC because the plaintiff had earlier filed and withdrawn a suit for permanent injunction without seeking specific performance.
- Whether, on a proper reading of the plaintiff’s recorded statement and the Trial Court’s withdrawal order dated 15 June 1994, the earlier suit was withdrawn with liberty to file a fresh suit (thereby affecting the application of the Order 2 Rule 2 bar).
- What directions should govern the High Court’s consideration of the restored second appeal, including the requirement under Section 100 CPC to identify a substantial question of law.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court held that the High Court’s and First Appellate Court’s application of the bar under Order 2 Rule 2 CPC could not be sustained to that extent. It emphasized that Order 2 Rule 2 bars a plaintiff’s remedy and therefore must be strictly construed.
The Court examined the Trial Court’s order dated 15 June 1994 together with the plaintiff’s statement recorded on the same date. The plaintiff had expressly stated that he did not wish to continue with the injunction suit and sought permission to withdraw it “with liberty to file fresh suit.” The Trial Court’s order dismissed the suit as withdrawn “in view of statement of plaintiff.” Reading these together, the Court found that the dismissal as withdrawn was because the plaintiff wanted to file a fresh suit—“obviously” one in which the plaintiff would seek specific performance rather than only an injunction.
On that basis, the Court concluded that the First Appellate Court was not right in holding that no liberty to file a fresh suit had been given in the 15 June 1994 order, and that this erroneous finding should not have been sustained by the High Court.
As the High Court had dismissed the second appeal at the threshold, the Court directed restoration of the second appeal and instructed the High Court to hear the appellant and then form an opinion on whether the appeal raises any substantial question of law within the meaning of Section 100 CPC; subject to that opinion, the High Court was to proceed to deal with the second appeal.
Holding and Implications
ALLOWED; IMPUGNED HIGH COURT JUDGMENTS SET ASIDE; SECOND APPEAL RESTORED. The judgments of the High Court dismissing the second appeal at the threshold and dismissing the review petition were set aside, and the second appeal was restored to the High Court’s file.
The direct implication is that the High Court must reconsider the second appeal afresh: it must hear the appellant, determine whether a substantial question of law arises under Section 100 CPC, and, if so satisfied, proceed to decide the second appeal. No order as to costs was made. The parties (through counsel) were directed to appear before the High Court on 19 July 2004. The opinion does not state that any new precedent was set beyond the case-specific correction of the Order 2 Rule 2 application based on the withdrawal record.
1. Leave granted.
2. The defendant respondent entered into a contract to sell a plot of land situated in an urban area in favour of the plaintiff-appellant who filed a suit for specific performance which has been dismissed by the High Court as barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 (for short “C.P.C.”). The appellant sought for a review of the judgment. The review petition too has been dismissed. These two appeals by special leave are directed against the two judgments respectively dismissing the appeal and the review petition.
3. It appears that initially the plaintiff-appellant apprehending that the subject matter of the contract was likely to be alienated in favour of a third person, filed a suit for permanent injunction restraining the defendant from alienating the suit property in favour of any one other than the plaintiff-appellant. The suit came up for hearing before the Trial Court on 15th June, 1994 on which date the Court made a record of the statement made before it by the plaintiff-appellant as under:
"It is stated that I do not wish to continue with this suit, which may be permitted to be withdrawn with liberty to file fresh suit."
4. The above said statement having been recorded, the Trial Court thereupon passed the following order:
"File taken up today. In view of statement of plaintiff, the suit is dismissed as withdrawn. File be consigned to the record room."
5. Subsequently, the plaintiff-appellant filed the present suit for specific performance and seeking refund of consideration in the alternative. The Trial Court decreed the suit for specific performance. The defendant-respondent filed first appeal. The learned District Judge, who heard the appeal, formed an opinion that so far as the relief of specific performance of the contract was concerned, the same was barred under Order 2 Rule 2, CPC, in view of the relief having not been sought for in the earlier suit and the suit having been withdrawn unconditionally. However, the First Appellate Court passed a money decree for recovery of Rs. 30,000/- with interest. There are other reasons also recorded by the First Appellate Court for not granting the relief of specific performance. The plaintiff-appellant preferred a second appeal which has been dismissed upholding the judgment and decree passed by the First Appellate Court.
6. Having heard the learned Counsel for the parties, we are satisfied that the judgment of the High Court as also of the First Appellate Court cannot be sustained to the extent to which the bar enacted under Order 2 Rule 2, CPC has been applied. The provisions of Order 2 Rule 2 of CPC bar the remedy of plaintiff-appellant and, therefore, must be strictly construed. The order of the Trial Court dated 15th June, 1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the Court on that very date. The plaintiff-appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The Trial Court recorded that the suit was being dismissed as withdrawn ‘in view of statement of plaintiff’. A conjoint reading of the order of the Court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the First Appellate Court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15th June, 1994. that finding of the First Appellate Court ought not to have been sustained by the High Court.
7. The appeals are allowed. The judgment of the High Court dismissing the appeal at the threshold as also the one dismissing the review petition, are set aside. The second appeal shall stand restored on the file of the High Court. The High Court shall after hearing the appellant herein form an opinion whether the appeal raises any substantial question of law within the meaning of Section 100 of the C.P.C. and subject to forming the said opinion, proceed to deal with the second appeal.
8. No order as to the costs.
9. The parties through their respective Counsel are directed to appear in the High Court on 19th July, 2004.
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