VIMLESH KUMARI KULSHRESTHA versus SAMBHAJIRAO AND ANR.

Citation: [2008] 2 S.C.R. 399 · Decided: 05-02-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

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[2008) 2 S.C.R. 399 
VIMLESH KUMARI KULSHRESTHA 
A 
II. 
SAMBHAJIRAO AND ANR. 
(Civil Appeal No. 2976 of 2004) 
FEBRUARY 5, 2008 
B 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] 
) 
Specific performance: Agreement of sale between tenant 
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of a portion of a house and landlord - Suit for specific 
performance by tenant for enforcement of agreement -
c 
Decreed - High Court set aside decree on the ground that 
agreement of sale was vague as she was tenant only of part of 
house and not of entire house - Correctness of- Held: Correct 
- The agreement of sale referred to property where tenant was 
living and not any other property- As she was living in part of D 
property, only that was subject matter of sale and not the entire 
house - The legal maxim 'id certum est quad certum redid 
potest' is not applicable in facts and circumstances of case ...... 
By mere reference to boundaries of the house, description of 
properties agreed to be sold would not become certain - For E 
finding out correct description of property, entire agreement 
was required to be read as a whole - So read, the agreement 
was uncertain - Maxims. 
Code of Civil Procedure, 1908: 0.23 r.1 -Applicability 
of -
Second suit filed on same cause of action during F 
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pendency offirst suit- Held: 0.23 r.1 not applicable as second 
suit filed before filing application of withdrawal of first suit. 
Deeds and documents: - Interpretation of document -
Agreement of sale - Held: Agreement to be read as a whole 
I 
to ascertain the true intention of the parties. 
G 
"t 
Plaintiff-appellant was a tenant in a portion of the 
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premises in respect of which an agreement of sale was 
entered into between the parties. Appellant filed a suit for 
399 
H 
400 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
A specific performance. The defendant-first respondent 
took objection that the proper court fees was not paid at 
the time of institution of suit. Appellant filed another suit. 
The appellant filed application for withdrawal ofthe earlier 
suit on the premise that another suit has been filed, the 
B application was allowed. Meanwhile, First respondent 
entered into another agreement of sale with second 
respondent. 
1 
The trial Court decreed the suit. High Court reversed 
the same on the ground· that in view of Order 23 Rule 1 
C CPC, the permission for filing another suit on the same 
cause of action having not been obtained, the second suit 
was not maintainable; and the agreement of sale being 
vague, no decree for specific performance could be 
D 
granted. Hence the present appeal. 
Dismissing the appeal, the Court 
'°'ELD: 1.1 Admittedly, the.·second suit was filed 
before filing the application of withdrawal of the first suit. 
The first suit was withdrawn as an objection had been 
E taken by the respondent in regard to payment of proper 
court fee. Order 23, Rule 1 CPC cannot be read so as to 
bar a suit which has already been instituted before the 
other suit has been abandoned or dismissed. The rule is 
clear and can only be applied· to suits instituted after the 
F withdrawal or abandonment of previous suits. Therefore, 
Order 23 Rule 1 of the CPC was not applicable to the 
facts and circumstances of the present case. [Paras 7, 8] 
[406-A, B, C, D] 
Mangi Lal v. Radha Mohan (1930) Lahore 599 (2); P.A. 
G Muhammed v. The Canara Bank and Anr. AIR (1992) Kar. 
85; Girdhari Lal Bansal v. The Chairman, Bhakra Beas 
Management Board, Chandigarh and Ors. AIR (1985) Punj 
and Har 219 - affirmed. 
· 
1.2. The application filed for withdrawal of the suit 
H categorically stated about the pendency of the earlier suit. 
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VIMLESH KUMARI KULSHRESTHA v. SAMBHAJIRAO 
403 
AND ANR. [S.S. SINHA, J.] 
..,.. 
Plant v. Bourne (1897) 2 Ch. 281 - referred to. 
A 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
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2976 of 2004. 
From the final Judgment and Order dated 27.3.2003 of 
the High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior B 
in First Appeal No. 159 of 1999. 
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( 
). 
P.S. Narasimha, Vikrant Yadav, L. Roshmani and 
Mandakini Sharma (for Praveen Swarup) for the Appellant. 
S.S. Khanduja for the Respondents. 
c 
The Judgment of the Court was delivered by 
S.S. SINHA, J. 1. Plaintiff, in a suit for specific performance 
of contract, is the appellant herein. She was a tenant in a portion 
of the premises in respect whereof the agreement of sale dated D 
1.4.1986 is said to have been entered into by and between the 
parties hereto . 
.... 
The relevant clauses of the

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