Case Note & Summary
The plaintiff, Govind B. Bajaj, filed Suit No. 186 of 2013 in the Bombay High Court seeking specific performance of a term-sheet agreement for joint development of a property. The term-sheet was executed between the plaintiff and Defendant No. 2, under which the plaintiff agreed to invest Rs. 15 crores for 75% development rights. The plaintiff alleged that he had paid Rs. 4 crores and that the defendants failed to perform their obligations. Previously, the plaintiff had filed Suit No. 1100 of 2012 in the City Civil Court, Mumbai, seeking a declaration of his rights under the same term-sheet and an injunction restraining the defendants from dealing with the property. In that suit, the plaintiff did not seek specific performance and did not obtain leave of the court to file a subsequent suit for that relief. The defendants (Defendant Nos. 1 to 3) filed Notice of Motion No. 999 of 2013 seeking rejection of the plaint under Order 7 Rule 11(d) CPC on the ground that the suit was barred by Order 2 Rule 2(3) CPC. The parties agreed to have a preliminary issue framed on this point. The court framed the issue: whether it had jurisdiction to entertain the suit for want of leave under Order 2 Rule 2(3) CPC in the previous suit. The court analyzed the plaints in both suits and found that the cause of action in both was the same, arising from the same term-sheet and the same breach. The court held that the plaintiff could have sought specific performance in the earlier suit but omitted to do so without leave. Therefore, the present suit was barred. The court answered the preliminary issue in the negative, holding that it had no jurisdiction, and allowed the Notice of Motion, rejecting the plaint.
Headnote
A) Civil Procedure - Bar on Subsequent Suit - Order 2 Rule 2(3) CPC - Cause of Action - The plaintiff filed a previous suit (Suit No. 1100 of 2012) seeking a declaration and injunction based on the same term-sheet and joint development agreement. The present suit seeks specific performance of the same agreement. The court held that the cause of action in both suits is substantially the same, as both arise from the same term-sheet and the same breach. Since the plaintiff omitted to sue for specific performance in the earlier suit without leave, the present suit is barred under Order 2 Rule 2(3) CPC. (Paras 1-10) B) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - The court framed a preliminary issue on jurisdiction under Order 2 Rule 2(3) CPC. Upon finding that the suit is barred, the plaint is liable to be rejected under Order 7 Rule 11(d) CPC. The Notice of Motion for rejection of plaint was allowed. (Paras 1-10)
Issue of Consideration
Whether the present suit for specific performance is barred under Order 2 Rule 2(3) of the Code of Civil Procedure, 1908, because the plaintiff omitted to sue for that relief in a previous suit (Suit No. 1100 of 2012) on the same cause of action without obtaining leave of the court.
Final Decision
The preliminary issue was answered in the negative: the court has no jurisdiction to entertain the suit for want of leave under Order 2 Rule 2(3) CPC. The Notice of Motion was allowed, and the plaint was rejected under Order 7 Rule 11(d) CPC.
Law Points
- Order 2 Rule 2(3) CPC bars subsequent suit for relief omitted without leave in earlier suit on same cause of action
- Cause of action determined by substance of claim not form
- Rejection of plaint under Order 7 Rule 11(d) CPC for non-compliance with Order 2 Rule 2(3)
