Case Note & Summary
The appeal arises from a judgment of the Bombay High Court (Nagpur Bench) in a Second Appeal, which upheld the concurrent findings of the Trial Court and the First Appellate Court that the suit for specific performance was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC). The dispute pertains to agricultural land Gat.No.111 admeasuring 3 H 05 R at Mauje Nayegaon, Taluka Nandura, District Buldhana. On 26 October 1995, the defendant entered into an agreement to sell the land to the plaintiff for Rs 1,80,000, with Rs 1,50,000 paid as earnest money. The sale deed was to be executed by 25 October 1996. The plaintiff issued a notice on 11 October 1996 for performance, but the defendant refused. On 16 October 1996, the defendant allegedly obstructed the plaintiff's possession, leading the plaintiff to file a suit for injunction (RCS No. 216/1997) on 30 October 1996. The plaint in that suit mentioned the agreement to sell and stated that the plaintiff would file a separate suit for specific performance. No leave under Order 2 Rule 2(3) CPC was sought. The injunction suit was dismissed in default on 16 September 2005. Meanwhile, on 30 April 1997, the plaintiff filed a suit for specific performance (Special Suit No. 61/1997). The defendant raised the bar under Order 2 Rule 2 CPC. The Trial Court dismissed the suit, holding that the plaintiff had omitted to sue for specific performance when the cause of action accrued. The First Appellate Court initially reversed, but on remand, it upheld the bar. The High Court in Second Appeal affirmed. The Supreme Court considered whether the bar under Order 2 Rule 2 CPC applied. The Court noted that the cause of action for both suits was the same: the agreement to sell and the defendant's refusal to perform. The plaintiff, aware of the breach, chose to sue only for injunction and expressly reserved the right to sue for specific performance but did not seek leave of the court. The Court held that the bar under Order 2 Rule 2 is attracted when the plaintiff omits to sue for a relief available on the same cause of action without leave. The plaintiff's omission amounted to relinquishment of the claim for specific performance. The Court dismissed the appeal, affirming the concurrent findings.
Headnote
A) Civil Procedure - Order 2 Rule 2 CPC - Bar to Subsequent Suit - Cause of Action - The bar under Order 2 Rule 2 applies when the subsequent suit is based on the same cause of action as the earlier suit and the plaintiff omitted to sue for the relief available in the earlier suit without leave of the court. In the present case, the plaintiff's earlier suit for injunction and the subsequent suit for specific performance were based on the same cause of action arising from the agreement to sell. The plaintiff, having knowledge of the breach, omitted to claim specific performance in the earlier suit and did not seek leave under Order 2 Rule 2(3) CPC. Held that the suit for specific performance is barred. (Paras 2-10) B) Civil Procedure - Order 2 Rule 2 CPC - Relinquishment of Claim - The plaintiff's failure to seek the relief of specific performance in the earlier suit, despite the cause of action having accrued, amounts to relinquishment of that claim. The plaint in the earlier suit expressly stated that the plaintiff would file a separate suit for specific performance, but no leave was obtained. Held that the omission without leave bars the subsequent suit. (Paras 4-10) C) Civil Procedure - Order 2 Rule 2 CPC - Proof of Cause of Action - The certified copy of the plaint in the earlier suit, marked as Exhibit 137, sufficiently proved the identity of cause of action. The plaintiff's objection that the plaint was not shown during his examination was rejected as the document was admitted without objection. Held that the bar under Order 2 Rule 2 was properly applied. (Paras 7-10)
Issue of Consideration
Whether the suit for specific performance is barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908, when the plaintiff had instituted an earlier suit for injunction based on the same cause of action without seeking leave to file a subsequent suit for specific performance.
Final Decision
The Supreme Court dismissed the appeals, affirming the judgment of the High Court and the concurrent findings that the suit for specific performance was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908.
Law Points
- Order 2 Rule 2 CPC
- Cause of Action
- Bar to Subsequent Suit
- Leave of Court
- Relinquishment of Claim
