Case Note & Summary
The appellants, original defendants, challenged the judgment and decree dated 14th October 2008 passed by the learned Civil Judge, Senior Division, Karad in Special Civil Suit No.13 of 2003, which decreed the suit for specific performance and directed the appellants to deliver vacant possession of the suit property. The respondents, original plaintiffs, had filed the suit for specific performance of an agreement for sale dated 1.5.1995. The appellants contended that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908, because the respondents had earlier filed a suit for injunction (Special Civil Suit No. 14 of 1996) based on the same agreement, without seeking the relief of specific performance. The trial court had dismissed the earlier suit for injunction. The High Court examined the plaints of both suits and found that the cause of action for both suits was identical, i.e., the agreement for sale and the defendants' refusal to execute the sale deed. The court held that the respondents ought to have included the relief of specific performance in the earlier suit. Since they failed to do so, the subsequent suit for specific performance was barred under Order 2 Rule 2 CPC. The court allowed the appeal, set aside the trial court's judgment, and dismissed the suit for specific performance.
Headnote
A) Civil Procedure - Bar on Subsequent Suit - Order 2 Rule 2 CPC - The plaintiffs earlier filed a suit for injunction based on an agreement for sale without seeking specific performance. The subsequent suit for specific performance based on the same agreement is barred under Order 2 Rule 2 CPC as the cause of action for both suits is the same. The court held that the plaintiffs ought to have included the relief of specific performance in the earlier suit. (Paras 8-12) B) Specific Performance - Agreement for Sale - Cause of Action - The agreement for sale dated 1.5.1995 was the foundation of both the earlier injunction suit and the subsequent specific performance suit. The breach of agreement and refusal to execute sale deed were known to plaintiffs at the time of earlier suit. Hence, the subsequent suit is not maintainable. (Paras 8-12)
Issue of Consideration
Whether the suit for specific performance of an agreement for sale is barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908, when the plaintiffs had earlier filed a suit for injunction based on the same agreement and did not seek the relief of specific performance.
Final Decision
Appeal allowed. Judgment and decree dated 14th October 2008 passed by the learned Civil Judge, Senior Division, Karad in Special Civil Suit No.13 of 2003 is set aside. Suit for specific performance is dismissed. No order as to costs.
Law Points
- Order 2 Rule 2 CPC
- bar on subsequent suit
- specific performance
- cause of action
- constructive res judicata
