Holding

Order 23 Rule 1 CPC is inapplicable where the second suit is filed before the first suit is withdrawn, and the agreement of sale is uncertain as it pertains only to a portion of the house, so specific performance cannot be ordered.

Summary

Vimlesh Kumari Kulshrestha, a tenant of only a portion of a house, entered into an agreement of sale dated 1 April 1986 for the house she occupied. She filed a suit for specific performance (OS No. 228A/86) but the court noted non‑payment of proper court fees, prompting her to file a second suit (OS No. 13A/87) and withdraw the first suit. The High Court set aside the trial decree, holding that the second suit was barred under Order 23 Rule 1 of the CPC and that the agreement of sale was vague. The Supreme Court held that Order 23 Rule 1 does not apply where the second suit is instituted before the withdrawal of the first suit, and that the agreement was uncertain because it only related to the part of the house the appellant occupied, not the entire house, rendering specific performance untenable. Consequently, the appeal was dismissed.

Issues considered

The applicability of Order 23 Rule 1 of the Code of Civil Procedure to a second suit filed before the withdrawal of the first suit.
Whether the agreement of sale was sufficiently certain to grant specific performance when the plaintiff was a tenant of only a part of the house.
The proper method of interpreting the agreement of sale – reading the document as a whole to ascertain the parties' intention.

Legislation cited

Code of Civil Procedure, 1908s. Order 23 Rule 1

Subjects

specific performanceagreement of salecertainty of contractOrder 23 Rule 1Civil Procedure Codeinterpretation of agreementtenant‑landlordcivil suit

Judgment

+- [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
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
finding out correct description of property, entire agreement E
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
~ 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

Plaintiff-appellant was a tenant in a portion of the
"t
~ 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
granted. Hence the present appeal.
D 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.
+
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.
/
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.
(
~
). 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 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 E
No. 1 will sell for Rs. 48,000/- (Forty eight thousand only)
and as a part payment received Rs. 24,000/- (Rupees
twenty four t~ousand) by cheque by party No. 2 from party
No. 1 on 20.3.86.
-t F
(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.
G
(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 H
404 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
B document. The boundaries are wrote down under :
North House Sambhajirao Angre. ~
A
West Property of Sambhajirao Angre

c East Road
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
0 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. 22·8A of
1986, on the ·premise that another suit has been filed, was sought
E 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.
F 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 XXlll Rule 1 of the Code of Civil
Procedure, the permission for filing another suit on
G
the same cause of action having not been obtained,
the second suit was not maintainable; and; 't

(ii) The agreement of sale dated 1.4.1986 being vague,
no decree for specific performance could be granted.
H
VIMLESH KUMARI KULSHRESTHA v. SAMBHAJIRAO 405
AND ANR. [S.S. SINHA, J.]

5. Mr. P.S. Narasimha, learned counsel appearing on A
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 8
instituted during the pendency of the first suit, Order
XXlll Rule 1 of the Code of Civil Procedure was not
applicable.
(b) . The agreement was required to be read in its entirety c
I
~ 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. D
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 XXll I Rule 1 of the CPC stricto sensu therefore, was
not applicable, the relevant provision whereof reads thus: E
1. Withdrawal of suit or abandonment of part of
claim. - (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 :
·~
F
(2)
(3) Where the Court is satisfied, -
(a) that a suit must fail by reason of some formal defect,
or
G
~ (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 H
406 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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 respondent in
8 regard to payment of proper court fee. We, therefore, are of
opinion that Order 23 Rule 1 of the Code was not applicable to 1
the facts and circumstances of the present case. A
8. A somewhat similar question came up for consideration
c 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
D 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".
E 9. The said view was followed by the Karnataka High Court
in PA. 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,
F Chandigarh and Others [AIR 1985 Punj and Har 219] wherein ._,,
it was held;
"4 ...... The earlier application was filed on sth Oct, 1982
and the present application was fixed on 26th Oct., 1982
and the first application was withdrawn vide order dt. 18-
G 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 0. 23, C.P.C. is not attracted and the
H second suit cannot be dismissed under 0. 23, R. 1(4) of
VIMLESH KUMARI KULSHRESTHA v. SAMBHAJIRAO 407
--<
AND ANR. [S.B. SINHA, J.]
~
the Civil P.C. Accordingly, I reverse the decision of the trial A
Court and hold that the present petition was not barred
under 0. 23, C.P.C."
We agree with said views of the High Court.
11. The application filed for withdrawal of the suit B
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 c
by the Court, granting permission to withdraw the suit. In a
situation of this nature, we are of the opinion that an inference in
rega~d 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.
D
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 E
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 F
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 MuUa's The Code of Civil Procedure, Seventeenth
Edition, page 674, it is stated
"(g) Permission need not be Express
G

The permission mentioned in this section need not
be given in express terms. It is sufficient if it can be implied
H
+ ,._
408 SU.PREME COURT REPORTS [2008] 2 S.C.R. (
'--
-I(
~
A 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
B permitting withdrawal, it transpires that while permitting
withdrawal, the court had also granted liberty to institute L
,..
fresh suit, the subsequent suit would be barred. Thus, in f
f--
A
a case, the Delhi High Court held that the words 'without
• prejudice to the right of plaintiff' endorsed on the
'
c application for withdrawal would only mean that the suit F-
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
D 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."
E 14. For the reasons aforementioned, we are of the opinion
that the High Court was not correct in applying the provisions
contained in Order XXlll Rule 1 of the Code of Civil Procedure
in the facts and circumstances of the case.

F 15. It is no doubt true that ordinarily an endeavour should
--f·
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
G
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
..,,..
-
'
..r
\,,

same premises. Appellant herein in her evidence also admitted
H
,.
t-
VIMLESH KUMARI KULSHRESTHA v. SAMBHAJIRAO 409
AND ANR. [S.B. SINHA, J.]
.,..
that no map was attached to the agreement. A
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 e
open land of the upper portion.
"' A
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 c
_, 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 D
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 Hi/las & Co. Ltd. Vs. Arcos, Ltd. [(1932
All. E. R. 494], wherein it was held; E
"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 contrary, the court should seek to apply the maxim
F

verba ita sunt intelligenda ut res magis va/eat 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
0
......
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
H
410 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 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
B construe an agreement entered into by and between two
businessmen. The maxim, Certum estquod 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 :
c
"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
D 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
E 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
F
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.
G 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 lega! maxim is, in our opinion, is
H not apposite in the facts and circumstances. of this case. By
+
VIMLESH KUMARI KULSHRESTHA v. SAMBHAJIRAO 411
AND ANR. [S.B. SINHA, J.]
,,.. reference to the boundaries of the premises alone, the A
-(
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 e
to the circumstances attending thereto. The relationship between
.j 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 hereinbefore that c
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 D
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 E
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.
·~
F
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.
D.G. Appeal dismissed . G
.,..