RATHNAVATHI & ANOTHER versus KAVITA GANASHAMDAS

Citation: [2014] 13 S.C.R. 120 · Decided: 29-10-2014 · Supreme Court of India · Bench: F.M. IBRAHIM KALIFULLA · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2014] 13 S.C.R.120 
RATHNAVATHI &ANOTHER 
V. 
KAVITA GANASHAMDAS 
(Civil Appeal Nos. 9949-9950 of 2014) 
OCTOBER 29, 2014 
[FAKKIR MOHAMED IBRAHIM KALIFULLAAND 
ABHAY MANOHAR SAPRE, JJ.] 
Specific Performance - Suit for specific performance 
C and suit for permanent injunction- Sale agreement of house 
by defendant no. 2-original owner in favour of plaintiff -
Payment of consideration amount as also balance amount 
by plaintiff, however, non-execution of sale deed by defendant 
no. 2 - Thereafter, attempt by defendant no. 2 along with 
D defendant no. 1 to dispossess plaintiff from the house - Suit 
for permanent injunction by plaintiff against defendants -
Subsequently, cancellation of sale agreement by defendant 
no. 2 and house sold to defendant no. 1-subsequent 
E purchaser for consideration - Suit for specific performance 
of agreement by plaintiff - Both suits set aside by the trial 
court - However, suits decreed against the defendants by 
the High Court with the direction to the defendants to execute 
the sale deed in favour of the plaintiff and the plaintiff to pay 
F additional sum of Rs. 4 lacs to defendant no. 2- On appeal, 
held: Bar contained in Or. II, r. 2 not attracted so as to non-
suit the plaintiff from filing the suit for specific performance 
of the agreement because of the different cause of action to 
claim the respective reliefs as also ingredients for claiming 
G the reliefs, thus, could be filed simultaneously - Time was 
not essence of agreement for its performance - Suit filed by 
plaintiff for specific performance of the agreement was within 
limitation of three years prescribed u!Art. 54 which began when 
the plaintiff noticed that the defendant refused the 
H 
120 
RATHNAVATHI v. KAVITAGANASHAMDAS 
121 
performance of the agreement- On facts, High Court justified A 
in granting specific performance of agreement in plaintiff's 
favour- Direction issued by the High Court upheld- However, 
on account of frustration of contract between defendant no. 2 
and defendant no. 1, defendant no. 2 directed to refund Rs. 
4 lacs to defendant no. 1, to do substantial justice to all the B 
·parties - Code of Civil Procedure, 1908 - Or. II, r. 2 -
Limitation Act, 1963 -Art. 54. 
Disposing of the appeals, the Court 
HELD: 1.1 In the instant case, the bar contained in C 
Or. II, r. 2 CPC is not attracted because of the distinction 
-in the cause of action for filing the two suits. The suit for 
permanent injunction was based on a threat given to the 
plaintiff by the defendants to dispossess her from the 
suit house. The suit for specific performance of D 
agreement was based on non-performance of agreement 
by defendant no.2 in plaintiff's favour despite giving 
legal notice to defendant no.2 to perform her part. 
Therefore, both the suits were founded on different 
causes of action and thus, could be filed simultaneously. E 
[Paras 29, 30][135-C-F] 
1.2 Even the ingredients to .file the .suit for 
permanent injunction are different than that ohhe suit 
for specific performance of agreement. In case of former, 
F 
plaintiff is required to make out-the existence of prima 
facie case, balance of convenience and irreparable loss 
likely to be suffered by the plaintiff on facts with reference 
to the suit property as provided in Section 38 of the 
Specific Relief Act, 1963 read with Order 39 Rule 1 & 2 G 
CPC. Whereas, in case of the later, plaintiff is required to 
plead and prove her continua.us readiness and 
willingness to perform her part of agreement and to 
further prove that defendant failed to perform her part of 
H 
122 
SUPREME COURT REPORTS 
[2014] 13 S.C.R. 
A the agreement as contained in Section 16 of the Act. 
[Paras 30, 31][135-F-H; 136-A-B] 
1.3 The basic requirement in relation to same cause 
of action is not made out as also the ingredients for 
8 claiming the reliefs is different, the defendants 
(appellants) are not entitled to raise a plea of bar· 
contained in Order II Rule 2 of CPC to successfully non-
suit the plaintiff from prosecuting her suit for specific 
performance of the agreement against the defendants. 
c [Para 33][136-C-D] 
2.1 Mere reading of Article 54 of the Limitation Act 
would show that if the date is fixed for performance of 
the agreement, then non-compliance of the agreement 
on the date would give a cause of action to file suit for 
D specific performance within three years from the date 
so fixed. However, when no such date is fixed, limitation 
of three

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