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CASE NO.: Appeal (civil)  2976 of 2004

PETITIONER: Vimlesh Kumari Kulshrestha

RESPONDENT: Sambhajirao and Anr

DATE OF JUDGMENT: 05/02/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2976 OF 2004

S.B. 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 1.4.1986 is said to have been entered into by and  between the parties hereto.

       The relevant clauses of the said agreement read as under:-

"It was settled down in between the above parties  that house of party No. 1, in which party No. 2 is  living, party No. 1 will sell for Rs. 48,000/- (Forty  eight thousand only) and as a part payment  received Rs. 24,000/- (Rupees twenty four  thousand) by cheque by party No. 2 from party No.  1 on 20.3.86.

(2)     Party No. 1 will obtain permission for sale  of the house from Ceiling Officer and will give  information to party No. 2 and within three months  of the information the party No. 2 will get  executed the Registry and will make the payment  of balance amount.

(3)     That Party No. 1 assured to Party No. 2 that  regarding the rights of ownership and transfer of  the house there is no dispute and if need arises then  party No. 1 will get permission from the Court and  Party No. 2 will have the right that on the error of  party No. 1 will get registry executed through  court and the expenses will have to be borne by  party No. 1.

       Therefore, this agreement wrote down and  received Rs. 24,000/-(Rupees twenty four  thousand).   The map of residential house prepared  and will remain with this document.   The  boundaries are wrote down under :

       North   :       House Sambhajirao Angre.

West    :       Property of Sambhajirao Angre             East    :       Road

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South   :       House Hariram Kapoor"

2.      A suit for specific performance was filed on 9.9.1986 which was  marked as O.S. No. 228A/1986.   Proper court fees were not paid thereupon.   Having regard to an objection taken in that behalf by the first respondent  herein in his written statement, allegedly another suit was filed by her on  23.3.1987, which was marked as O.S. No. 13A of 1987.  O.S. No. 228A of  1986, on the premise that another suit has been filed, was sought to be  withdrawn.  The application for withdrawal was allowed.   

3.      Respondent No. 1, however, had entered into another agreement of  sale with the respondent No. 2.  He filed an application for impleading  himself as a party in the suit.  It was allowed.

4.      The learned Trial Judge decreed the suit.   By reason of the impugned  judgment, however, the High Court has reversed the same, holding : (i)     In view of Order XXIII Rule 1 of the Code of Civil Procedure, the  permission for filing another suit on the same cause of action  having not been obtained, the second suit was not maintainable;  and;  (ii)    The agreement of sale dated 1.4.1986 being vague, no decree for  specific performance could be granted.   5.      Mr. P.S. Narasimha, learned counsel appearing on behalf of the  appellant in support of the appeal raised the following contentions : (a)     The High Court committed a manifest error in passing the impugned  judgment insofar as it failed to take into consideration that the second  suit having been instituted during the pendency of the first suit, Order  XXIII Rule 1 of the Code of Civil Procedure was not applicable. (b)     The agreement  was required to be read in its entirety and so read, it  would be evident that the subject matter of sale was the entire house  and not a part thereof.

6.  Mr. S.S. Khanduja, learned counsel appearing on behalf of the  respondent, on the other hand, would support the judgment.    7.      It is not in dispute that O.S. No. 13A of 1987 was filed during  pendency of O.S. No. 228A of 1986.

       Order XXIII Rule 1 of the CPC stricto sensu therefore, was not  applicable, the relevant provision whereof reads thus: 1.      Withdrawal of suit or abandonment of part  of claim. \026 (1) At any time after, the institution  of a suit, the plaintiff may as against all or any  of the defendants abandon his suit or abandon a  part of his claim : (2)     \005..

(3)     Where the Court is satisfied, -

(a)     that a suit must fail by reason of some formal  defect, or (b)     that there are sufficient grounds for allowing  the plaintiff to institute a fresh suit for the  subject matter of a suit or part of a claim, it  may, on such terms as it thinks fit, grant the  plaintiff permission to withdraw from such suit  or such part of the claim with liberty to institute  a fresh suit in respect of the subject-matter of  such suit or such part of the claim.

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 taken by the appellant in regard to payment of proper court fee.  We,  therefore, are of opinion that Order 23 Rule 1 of the Code was not applicable  to the facts and circumstances of the present case.

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8.      A somewhat similar question came up for consideration in Mangi Lal  Vs. Radha Mohan [1930 Lahore 599(2), wherein it was held;

"Order 23, Rule 1, refers to permission to  withdraw a suit with liberty to institute a fresh suit  after the first one has been withdrawn.   Order 23,  Rule 1, 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  withdrawal or abandonment of previous suits".

9.      The said view was followed by the Karnataka High Court in P.A.  Muhammed Vs. The Canara Bank and Another [AIR (1992) Kar. 85].    

10.     An identical view was also taken in Girdhari Lal Bansal Vs. The  Chairman, Bhakra Beas Management Board, Chandigarh and Others [AIR  1985 Punj and Har 219] wherein it was held; "4. \005.. The earlier application was filed on 6th  Oct, 1982 and the present application was fixed on  26th Oct., 1982 and the first application was  withdrawn vide order dt. 18-11-1982.  The learned  counsel for the Board could not show if aforesaid  two decisions were ever dissented from or  overruled.   The aforesaid two Lahore decisions  clearly say that if second suit is filed before the  first suit is withdrawn then O. 23, C.P.C. is not  attracted and the second suit cannot be dismissed  under O. 23, R. 1(4) of the Civil P.C.    Accordingly, I reverse the decision of the trial  Court and hold that the present petition was not  barred under O. 23, C.P.C."

       We agree with said views of the High Court. 11.     The application filed for withdrawal of the suit categorically stated  about the pendency of the earlier suit.  Respondent, therefore was aware  thereof.  They objected to the withdrawal of the suit only on the ground that  legal costs therefor should be paid.   The said objection was accepted by the  learned Trial Court.  Respondent even accepted the costs as directed by the  Court, granting permission to withdraw the suit.  In a situation of this nature,  we are of the opinion that an inference in regard to grant of permission can  also be drawn from the conduct of the parties as also the Order passed by the  Court.   It is trite that even a presumption of implied grant can be drawn.

12.     In Hari Basudev Vs. State of Orissa and Others  [AIR 2000 Orissa  125], a Division Bench of the Orissa High Court held; "7.  As already indicated, the cause of action  accrued to opposite party No. 4 to file the election  dispute u/S. 30 of the Act only after publication of  the result of the election.   Opposite party No. 4 in  his petition made out a case for grant of permission  to withdraw M.J.C. No. 14 of 1997.   He had also  stated in the petition that he reserved his right to  file a fresh case, if necessary.  The learned Civil  Judge having permitted him to withdraw the said  case, we are inclined to hold that permission to  institute a fresh case in the circumstances was  impliedly granted."

13.     In Mulla’s The Code of Civil Procedure, Seventeenth Edition, page  674, it is stated "(g) Permission need not be Express The permission mentioned in this section need  not be given in express terms.  It is sufficient if it

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can be implied from the order read with the  application on which the order was made.  No  formal order is necessary for withdrawal of a suit.   But the proceedings must show that the plaintiff  has withdrawn the suit or part of the claim.    However, if either from the application of the  plaintiff or from the order permitting withdrawal, it  transpires that while permitting withdrawal, the  court had also granted liberty to institute fresh suit,  the subsequent suit would be barred.  Thus, in a  case, the Delhi High Court held that the words  ’without prejudice to the right of plaintiff’  endorsed on the application for withdrawal would  only mean that the suit was sought to be  withdrawn as compromised and not on merits.

An application for withdrawal of suit was  made, seeking liberty to file a fresh suit.   The  order passed by the court was that ’The application  is, therefore, allowed while permitting the plaintiff  to withdraw the suit’.  It was held that this should  be construed as an order also granting liberty, as  prayed.   The court cannot split the prayer made by  the applicant."

14.     For the reasons aforementioned, we are of the opinion that the High  Court was not correct in applying the provisions contained in Order XXIII  Rule 1 of the Code of Civil Procedure in the facts and circumstances of the  case.

15.     It is no doubt true that ordinarily an endeavour should be made by the  court to give effect to the terms of the agreement but it is also a well settled  principle of law that an agreement is to be read as a whole so as to enable the  court to ascertain the true intention of the parties.   It is not in dispute that no  plan was prepared.  A purported sketch mark was attached with the plaint,  which was not proved.   Evidences brought on record clearly lead to the  conclusion that the appellant was not the tenant in respect of the entire  house.  She, in her deposition, even did not claim the same.  Another tenant  was occupying some rooms in the same premises. Appellant herein in her  evidence also admitted that no map was attached to the agreement.

16.     The very fact that the premises sought to be transferred could not  adequately be described; a plan was sought to be attached.  According to the  appellant herself, she had been residing only in the ground floor, along with  open land on the northern side and had been using two rooms, a Patore  alongwith open land of the upper portion.    She had not received the possession of the disputed house.  It is,  therefore, evident that she did not claim herself to be a tenant in respect of  the entire house and, thus, the same was not agreed to be sold.

17.     It is in the aforementioned context, the meaning of the words used in  the agreement must be determined.  It refers to the property where the  appellant was living and not any other property.  If the appellant was living  in a part of the property, only the same was the subject matter of sale and not  the entire premises.   Reliance, has been placed by Mr. Narasimha on a decision of the  House of Lords in Hillas & Co. Ltd. Vs. Arcos, Ltd. [(1932 All. E. R. 494],  wherein it was held;

"It is the duty of the court to construe agreements  made by business men - which often appear to  those unfamiliar with the business far from  complete or precise- fairly and broadly, without  being astute or subtle in finding defects; on the

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contrary, the court should seek to apply the maxim  verba ita sunt intelligenda ut res magis valeat  quam pereat.  That maxim, however, does not  mean that the court is to make a contract for the  parties, or to go outside the words they have used,  except in so far as there are appropriate  implications of law, as, for instance, the  implication of what is just and reasonable to be  ascertained by the court as matter of machinery  where the contractual intention is clear but the  contract is silent on some detail.   Thus in contracts  for future performance over a period the parties  may not be able nor may they desire to specify  many matters of detail, but leave them to be  adjusted in the working out of the contract."

18.     There is no dispute with regard to the aforementioned legal  proposition.  However, we have not been called upon to construe an  agreement entered into by and between two businessmen.  The maxim,  Certum est quod certum reddi potest instead of being of any assistance to the  appellant, runs counter to her submission.   It means that is certain which can  be made certain.  In relation to ’uncertainty’ it is stated : "The office of the habendum is a deed is to limit,  explain, or qualify the words in the premises; but if  the words of the habendum are manifestly  contradictory and repugnant to those in the  premises, they must be disregarded.   A deed shall  be void if it be totally uncertain ; but if the King’s  grant refers to another thing which is certain, it is  sufficient; as, if he grant to a city all liberties  which London has, without saying what liberties  London has.

An agreement in writing for the sale of a house did  not describe the particular house, but it stated that  the deeds were in the possession of A.  The Court  held the agreement sufficiently certain, since it  appeared upon the face of the agreement that the  house referred to was the house of which the deeds  were in the possession of A., and, consequently,  the house might easily be ascertained, and id  certum est quod certum redid potest. Again, the word "certain" must, in a variety of  cases, where a contract is entered into for the sale  of goods, refer to an indefinite quantity at the time  of the contract made, and must mean a quantity  which is to be ascertained according to the above  maxim." [See Trayner’s Latin Maxims, Fourth Edition,  Page 76]

19.     Reference to the said legal maxim is, in our opinion, is not apposite in  the facts and circumstances of this case.  By reference to the boundaries of  the premises alone, the description of the properties agreed to be sold did not  become certain.  For the purpose of finding out the correct description of the  property, the entire agreement was required to be read as a whole.  So read,  the agreement becomes uncertain.

20.     An agreement of sale must be construed having regard to the  circumstances attending thereto.  The relationship between the parties was  that of the landlord and tenant.   Appellant was only a tenant in respect of a  part of the premises.  It may be that the boundaries of the house have been  described but a plan was to be a part thereof.  We have indicated

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hereinbefore that the parties intended to annex a plan with the agreement  only because the description of the properties was inadequate.  It is with a  view to make the description of the subject matter of sale definite, the plan  was to be attached.  The plan was not even prepared.  It has not been found  that the sketch of map annexed to the plaint conformed to the plan which  was to be made a part of the agreement for sale.   The agreement for sale,  therefore, being uncertain could not be given effect to.

21.     In Plant Vs. Bourne [(1897) 2 Ch. 281], whereupon Mr. Narsimha  relied upon, the Court of Appeals held that oral evidence is admissible.   In  this case, oral evidence adduced by the appellant herself suggests that the  entire property was not to be sold as she was not a tenant in respect of the  entire premises.

22.     For the reasons aforementioned, we do not find any infirmity in the  judgment of the High Court.  The appeal is dismissed.  In the facts and  circumstances of the case, there shall be no order as to costs.