SATHIYAMURTHY Vs. R PAVUNAMBAL

JUDGEMENT

(1.) This appeal arises out of the fair and decretal order dated 08.02.2010 in I.A.No.313 of 2009 in O.S.No.138 of 2008 on the file of Principal District Court, Cuddalore, whereby the trial court has allowed the application taken by the respondents herein for rejection of the plaint filed by the appellant. The appellant is the plaintiff and the respondents are the defendants before the trial court.

(2.) Before going into the question, whether the order passed by the court below in rejecting the plaint is correct or not, it would be fit and proper to narrate the circumstances, which led the plaintiff to file the instant suit for specific performance, as follows:

(3.) Learned counsel for the appellant/plaintiff submitted that originally an agreement of sale was entered into between the appellant and the respondents on 20.08.2007. Subsequently when the appellant came to know that there was a dispute in respect of the the properties between the respondents and one Govindaraj, a panchayat was convened and in which, it was agreed that the respondents/defendants should refund a sum of Rs.4 lakhs and the consideration of the property to be increased by Rs.1,000/- per cent and that the respondents should finalise the dispute between themselves and the said Govindaraj and that the time for agreement was extended for a further period of six months. But, in the meantime, on 18.02.2008, the respondents attempted to enter into the suit properties, which resulted in filing the suit in O.S.No.82 of 2008 for injunction as against the defendants. Only in the written statement in that suit, the defendants had stated that the suit agreement stands rescinded by virtue of the appellant's conduct. Thereafter, on seeing the said defence, the appellant had issued a legal notice dated 03.06.2008, for which the respondents had issued a reply dated 09.06.2008. Thereafter, the suit was filed for specific performance. The cause of action for the earlier suit is based on the attempt made by the respondents to dispossess the appellant from the suit properties. But the cause of action for filing the subsequent suit is based on the endorsement made in the sale agreement on 18.11.2007, by which endorsement, it was agreed between the parties to increase the sale consideration by Rs.1,000/- per cent. Therefore, the subsequent suit is based on the terms entered into between the parties on 18.11.2007 and not based on the original sale agreement dated 20.08.2007. Since the cause of action for both the suits is different, the application filed by the respondents under Order 7 Rule II C.P.C.is not maintainable, In support of his contention, the learned counsel has relied on the judgments reported in KUNJAN NAIR SIVARAMAN NAIR .vs. NARAYANAN NAIR AND OTHERS, 2004 3 SCC 277, PERIYAR NAGAR CHRISTIAN ASSOCIATION .vs. PERIYAR NAGAR CSI CHURCH, 2007 1 MadLJ 266and POPAT AND KOTECHA PROPERTY .vs. STATE BANK OF INDIA STAFF ASSOCIATION, 2006 1 LW 748.