http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  5923\0265924 of 1999

PETITIONER: K.G. Arumugham & Ors.                            

RESPONDENT: K.A.Chinnappan & Ors.                            

DATE OF JUDGMENT: 24/02/2005

BENCH: ASHOK BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T

BHAN, J.

       These appeals are directed against the common  order dated 24.3.1998 passed by a Single Judge of  the Madras High Court in CRP No. 2695 and 2696 of  1993 arising from an order dated 2.7.1993 passed by  the Principal Sub Judge, Coimbatore in I.A. No.   1019 of 1987 in O.S. No. 187 of 1980 and I.A. No.  2100 of 1987 in O.S. No. 526 of 1987.  The High  Court has set aside the order passed by the  Principal Sub Judge and remitted the case to the  Munsif Court for a fresh decision in the light of  the observations and directions given in the  impugned order.         The facts are complicated and required to be  set out in detail to appreciate the controversy  arising in these proceedings.

       The defendants \026appellants (hereinafter  referred to as "the appellants") who were the owners  of suit property measuring 4 acres 7 cents in  Kurinchi Village, Coimbatore entered into an  agreement with the plaintiffs-respondents  (hereinafter referred to as "the respondents") to  sell the suit land for a sum of Rs. 2,15,710/- at  the rate of Rs. 53,000/- per acre.  Respondents paid  a sum of Rs. 10,001/- as earnest money and the  balance sale consideration was to be paid at the  time of registration of sale deed which was to be  completed within four months.  As the respondents  did not come forward to get the sale deed  registered, the appellant No. 2 by his letter dated  10.6.1979 informed the respondents that they have  lost their right to get the sale deed executed under  the agreement of sale.  Notice terminating the  agreement was also sent to the respondent through a  lawyer on 12.9.1979.

       Respondents filed OS No. 187 of 1980 in the  Court of Principal District Munsif, Coimbatore  seeking permanent injunction restraining the  appellants from causing any obstruction or  interference or prejudice to the  plaintiffs/respondents by undertaking any  construction activities on the suit land or by  giving any access to the land or connecting the land  with public road etc.   Appellants in their written

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

statement raised a preliminary objection regarding  the maintainability of the suit.  It was pleaded  that a simple suit for permanent injunction was not  maintainable in the absence of a prayer seeking  specific performance of the agreement.  In view of  the objections raised by the appellants, respondents  filed I.A. No. 1982 of 1980 to amend the plaint and  seek specific performance of the agreement of sale  dated 13.12.1978.  Amendment as sought for was  allowed vide order dated 13.12.1978.  As the Munsif  Court did not have the pecuniary jurisdiction to try  a suit of the value of Rs. 2,15,710/-, plaint was  ordered to be returned for presentation in the court  of competent jurisdiction within a period of two  months.  The order reads :  "I.A.No. 1982 of 1980 allowed.  Plaint claim  Rs. 2,15,710/- pecuniary jurisdiction. Hence  plaint returned for presentation to proper  court.  Time two month."

       Respondents kept quite for seven years.  On  27.4.1987 respondents filed I.A. No. 1919 of 1987 in  the Court of District Munsif, Coimbatore with a  prayer to return the plaint.  Prayer was in the  following terms:

"For the reasons stated in the accompanying  affidavit, the petitioner prays that this  Hon’ble Court may be pleased to issue  necessary orders for effecting delivery of the  amended plaint in O.S. No. 187 of 1980 ordered  by this Hon’ble Court to be returned to the  petitioners and to grant other relief just and  necessary in the circumstances of the case."

       On the very next day, i.e., 28.4.1987 the  Principal District Munsif without giving any notice  to the appellants passed the following order:

"plaint may be returned to the advocate as  requested.  One week time for re-presentation  given."

Respondents after paying the court fee on Rs.  2,15,710/-          re-presented the plaint before  the Vacation Civil Judge, Coimbatore and it was  registered as O.S. No. 526 of 1987.

       Aggrieved against the order dated 28.4.1987 in  I.A. No. 1019 of 1987 the appellants filed CRP No.  3226 of 1987 in the High Court of Madras.  High  Court allowed the revision petition and set aside  the order passed by the Munsif Court in I.A. No.  1019 of 1987 in O.S. No. 187 of 1980 both on merits  as well as being violative of principles of natural  justice.  It was held that the Munsif Court having  ordered return of the plaint on 28.11.1980, it was  not open to it to pass another order of return of  plaint after a lapse of 7 years.  Further it was  held that the Munsif Court was not entitled to  entertain and pass any order on the  application/petition without giving a prior notice  to the other side.  It was further held that the  appellants, in the meanwhile, had sold a part of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

property to third parties who were put in  possession.  Because of the changed circumstances  the relief of specific performance could not be  granted.  It was observed that the order passed by  the Munsif Court had caused great prejudice to the  appellants and the respondents were not entitled to  the relief of specific performance.

       Aggrieved against the order of the High Court,  the respondents filed SLP (C) No. 3786 of 1988 which  was dismissed on 11.5.1988 with the following  observations: "Special Leave Petition is dismissed.   The petitioner may take resort to some legal  remedy as may be available to him."

       Another fact which needs to be highlighted is  that after the order passed by the High Court in CRP  No. 3226 of 1987 the appellants filed I.A. No. 2100  of 1987 in O.S. No. 526 of 1987 in the subordinate  court praying that the suit had become infructuous  in view of the order passed by the High Court in CRP  No. 3226 of 1987 and, therefore, the same be  dismissed as such.  Respondents filed Review  Petition No. 2769 of 1988 in the High Court and the  same was dismissed.

       Respondents filed I.A. No. 1168 of 1989 in O.S.  No. 526 of 1987 to treat the suit as a fresh suit.   Appellants in their reply to I.A. No. 1168 of 1989  stated that the application was an abuse of the  process of the Court and amounted to circumventing  and flouting the orders of the High Court.  It was  also pleaded that the respondents had abandoned  their right under the agreement and the relief of  specific performance was barred by limitation.  The  Principal Sub Judge (Transferee Court) disposed of  I.A. No. 2100 of 1987 filed by the appellants and  I.A. No. 1168 of 1989 filed by the respondents by  passing a common order and held that I.A. No. 1168  of 1989 was not maintainable in view of the order  passed by the High Court in I.A. No. 1019 of 1987 in  CRP No. 3226 of 1987 dated 6.11.1987.  It was held  that the suit for specific performance could be  filed within a period of three years and even  assuming that the suit in O.S. No. 526 of 1987 was  considered as a separate suit and not a continuation  of O.S. No. 187 of 1980, there was no fresh cause of  action for the present suit and the suit was barred  by limitation.  Accordingly, the Principal Sub Judge  allowed I.A. No. 2100 of 1987 filed by the  appellants and dismissed I.A. No. 1168 of 1989 filed  by the respondents.

       Respondents, being aggrieved by the order  passed by the Principal Sub Judge, filed two  separate CRPs. numbering 2695 and 2696 of 1993  against the order passed by the subordinate court in  I.A. No. 2100 of 1987 and I.A. No. 1168 of 1989.  By  the impugned order, the High Court has allowed the  revision petition and remitted I.A. No. 1019 of 1987  in O.S. No. 187 of 1980 to the Munsif Court for a  fresh decision in the light of the observations and  directions given in the impugned order.   Registration of Suit No. 526 of 1987 in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

subordinate court was cancelled.  It was observed  that the re-registration of the suit shall have to  abide by the order that shall be passed in I.A. No.  1019 of 1987 in O.S. No. 187 of 1980 by the District  Munsif, Coimbatore.  It was held:  "I.A. No. 1019 of 1987 in O.S. No. 187 of 1980  will stand remitted back to the learned Trial  Judge, i.e., District Munsif Coimbatore, for  disposal in accordance with law after giving  notice to the opposite parties in that  application............the registering of the  suit as O.S. No. 526 of 1987 on the file of  the Subordinate Court, Coimbatore, consequent  to the return dated 28.11.1980 in O.S. No. 187  of 1980 on the file of District Munsif,  Coimbatore, is cancelled and such re- registration will have to abide by the order  that will be passed in I.A. No. 1019 of 1987  in O.S. No. 187 of 1980 on the file of the  District Munsif, Coimbatore.  The Subordinate  Court, Coimbatore is directed to send the  original plaint and the other connected  records in O.S. No. 526 of 1987 immediately to  the file of the District Munsif, Coimbatore."

The High Court gave the above direction on the  following premises: (i)     that Order dated 6.11.1987 passed by the High  Court in CRP No. 3226 of 1987 was incorrect  inasmuch as the only order that could have been  passed in CRP No. 3226 of 1987 was to remit  I.A. No. 1019 of 1987 to the Munsif Court with  a direction to issue notice to the opposite  parties and dispose it of on merits;

(ii)    that the question whether the plaintiffs are  entitled to the relief of specific performance  or not, is a matter to be decided in the suit  namely O.S. No. 526 of 1987 and definitely not  in that Civil Revision Petition.  In that Civil  Revision Petition, the above referred question  did not arise at all and, therefore, anything  said by the learned Single Judge in that order  can only be ’obiter dicta’.

It was also held that the Court which fixed the time  for performing an act by Order dated 28.4.1980 was  competent to extend the time for the purpose of that  act and it is only that Court and no other Court  could do such an act. It was observed that the  learned Judge drew his source of inspiration to pass  the impugned order from the observation of the  Supreme Court which reserved the liberty with the  respondents to ’take resort to some legal remedy as  may be available to them.’

       We have heard counsel for the parties at  length.   

       In our view, the High Court erred in reversing  the order passed by the Principal Sub Judge.  The  impugned order cannot be sustained because that the  earlier order dated 6.11.1987 passed by the High  Court setting aside the order dated 28.4.1987 passed  in I.A. No. 1019 of 1987 in O.S. No. 187 of 1980 by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

the Munsif Court had become final and binding  between the parties with the dismissal of the  Special Leave Petition by this Court on 11.5.1988.   The said order could not be re-opened at the  instance of the respondents by merely filing an  application i.e. I.A. No. 1168 of 1989 and that too  with a prayer to treat O.S. No. 526 of 1987 as a  fresh suit.

       The respondents because of their own conduct  have amply demonstrated that the suit for specific  performance would not be maintainable.  This would  be evident by the fact that the Munsif Court, while  returning the plaint, had directed the respondents  to re-present the plaint within a period of two  months.  The respondents did not comply with the  said order.  After seven long years, respondents  chose to file I.A. No. 1019 of 1987 before the  Munsif Court with a prayer that the plaint be  returned to the plaintiff.  The order passed by the  Munsif Court on this application on 28.4.1987  granting a week’s time to re-present the plaint was  held to be without jurisdiction by the High Court.   Respondents by their default and long lapse of time  had allowed third party rights to set in respect of  the suit properties rendering the passing of the  decree of specific performance inequitable and  unjust.  The grant of specific relief is a  discretionary relief and is not as a matter of  right.  The High Court in its previous order had  held that the prices had gone up a few times over  the original price.  Third party rights had also  come into existence.  Passing of a decree for  specific performance would cause great prejudice to  the appellants and that the respondents were not  entitled to the relief for specific performance.   This had become final between the parties.  Review  Petition No. 276 of 1988 filed by the respondents  seeking review of the order dated 6.11.1987 was  dismissed on 29.4.1998.  The present attempt of the  respondents was an attempt in the nature of a second  review of the order dated 6.11.1987 which could not  be permitted.  By the impugned order, the Single  Judge has virtually reviewed the earlier order  passed by the High Court which it could not do.  The  learned Single Judge has proceeded in the matter as  if it was hearing an appeal against the earlier  order passed by the Single Judge in CRP No. 3226 of  1987 or as if it was sitting in review jurisdiction.   

       Further the High Court by the impugned order  remitted the case back to the District Munsif,  Coimbatore which did not have the jurisdiction to  pass any order in the suit because of lack of  pecuniary jurisdiction.   The plaint had already  been returned by the District Munsif to the  petitioner for re-presentation to a court of  competent jurisdiction which the respondent did  after paying the requisite court fee and the  subordinate court having territorial and pecuniary  jurisdiction had already assigned a new number to  the suit i.e. O.S. No. 526 of 1987.  The learned  Single Judge has gone beyond the relief claimed in  the IAs in ordering that the registration of the  suit as O.S. No. 526 of 1987 on the file of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

Subordinate Court, Coimbatore is cancelled and such  a re-registration will have to abide by the order  that may be passed by the District Munsif in I.A.  No. 1019 of 1987 in O.S. No. 187 of 1980.  The  learned Judge who passed the impugned order was not  sitting in appeal over the earlier order passed by  the High Court.  He could not set aside the earlier  order.  Rather he was bound by the same as sitting  in the co-ordinate jurisdiction since the earlier  order had already attained finality.

       The impugned order, under the  circumstances, cannot be sustained and the same is  set aside and the order passed by the Munsif Court  is restored.  Accordingly, the appeals are allowed.    There shall be no order as to costs.