Order Granting Liberty To File A Fresh Suit Will Not Give Rise To Cause Of Action: Karnataka HC

The Karnataka High Court has observed that if liberty is granted to a party to file a fresh suit or a comprehensive suit, the order of granting liberty will never give rise to cause of action, nor can it be construed to be so. 

In that context, the Bench of Justice Sreenivas Harish Kumar and Justice Ramachandra D Huddar, "In case liberty is granted to a party to file a fresh suit or a comprehensive suit, the order of granting liberty will never give rise to cause of action nor can it be construed so. Once a suit is finally adjudicated, any suit instituted subsequently by any of the parties or persons claiming title under the parties to the suit must plead independent cause of action."

It was further clarified that, "Only when the court permits a plaintiff under sub rule (3) of rule 1 of Order 23 of CPC to withdraw the suit, he can bring a fresh suit in respect of same subject matter but the fresh suit is also not immune to law of limitation."

Counsel SS Patil, Counsel Mahantesh R Patil, and others, appeared for the appellants, while Counsel VM Sheelvant and others appeared for the respondent. 

In this case, the RFA was filed under Section 96 of CPC against the judgment, partly decreeing the suit for declaration and consequential relief of possession and permanent injunction.

Some of the defendants in the suit challenged the judgment and decree. Kashimsab Peersab Nadaf, the original plaintiff, had claimed several reliefs, including a declaration that certain sale deeds were illegal, possession of the suit property, and a permanent injunction.

The subject matter of the suit was 8 acres 12 guntas of land in Belagavi. The plaintiff entered into an agreement of sale with the first defendant, a housing cooperative society, but disputes arose regarding payment and compliance with the agreement's terms. Defendants, including the society, contested the suit, citing non-compliance, limitation, and other grounds.

The trial court decreed the suit in favor of the plaintiff. The defendants filed this appeal against the decree. The issues framed by the trial court covered the validity of sale deeds, the plaintiff's entitlement to reliefs, limitation, and other related matters. The trial court decreed the suit, and the appeal before the High Court ensued.

The High Court observed that it was amply clear that the plaintiff was very much aware of the existence of the sale deeds by the time he filed the statement of objections 

Subsequently, it was observed that the plaintiff, instead of filing a suit for injunction, should have filed a suit for recovery of balance of sale consideration if according to him the sale consideration was not fully paid. In furtherance, it was said that, "Based on the agreements, he could have filed a suit for specific performance against the society if he was willing to execute the sale deeds by receiving balance of sale consideration or if the second defendant executed sale deeds by playing fraud on him or violating the terms of the agreement, he could have filed a suit for cancellation of sale deeds taking up the pleas of fraud or mis-representation etc."

Noting that the plaintiff omitted to claim the reliefs available when they were available to him, it was observed that, "If the plaintiff thought that there was an eclipse on his title because of the sale deeds executed by the second defendant in favour of the society, he could have claimed the same reliefs when he filed O.S.1181/1989 as these reliefs were very much available to him at that time. He omitted to claim these reliefs. In this view the present suit is also hit by Order 2 Rule 2 of CPC."

In light of the same, the appeal was allowed.

Cause Title: Abhiman Apartment Co-operative & Ors. vs Kasim Sab Peersab Nadaf & Ors.

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