IMPORTANT POINT
Applicxability of Order II, rule 2, CPC.

JUDGMENT

Ranjan Gogoi, J.-Leave granted.

2. Both the appeals are directed against the common judgment and order dated 6.10.2009 passed by the High Court of Madras by which the High Court has refused to interdict the proceedings registered and numbered as OS Nos. 202 and 203 of 2007 pending in the Court of the learned District Judge, Thiruvallur filed by the respondents herein.

3. The brief facts that would be required to be noticed for the purpose of the present adjudication may now be recapitulated. The respondent in the two appeals, as the plaintiff, instituted C.S No. 831 of 2005 and C.S. No. 833 of 2005 before the Madras High Court seeking a decree of permanent injunction restraining the appellant (defendant) from alienating, encumbering or dealing with the plaint schedule properties to any other third party other than the plaintiff. The aforesaid relief was claimed on the basis of two agreements of sale entered into by the plaintiffs and the defendant both on 27.7.2005 in respect of two different parcels of immovable property consisting of land and superstructures built on plot No. 65 (old No.43) and plot No. 66 (old No.42), Second Main Road, Ambattur Industrial Estate, Chennai. In each of the aforesaid suits the plaintiff had stated that under the agreements of sale different amounts were paid to the defendants, yet, on the pretext that restrictions on the alienation of the suit land were likely to be issued by the Central Excise Department on account of pending revenue demands, the defendants were attempting to frustrate the agreements in question. In the suits filed by the plaintiff it was also stated that as the period of six months fixed for execution of the sale deeds under the agreements in question was not yet over, the plaintiff is not claiming specific performance of the agreements. The plaintiff, accordingly, sought leave of the court to omit to claim the relief of specific performance with liberty to sue for the said relief at a later point of time, if necessary. The two suits in question, i.e., C.S. Nos. 831 and 833 of 2005 were filed by the plaintiff on 28.8.2005 and 9.9.2005 respectively.

4. Thereafter on 29.5.2007, O.S. Nos. 202 and 203 were filed by the plaintiff in the Court of the District Judge, Tiruvallur seeking a decree against the defendant for execution and registration of the sale deeds in respect of the same property and for delivery of possession thereof to the plaintiff. In the aforesaid latter suits it was mentioned by the plaintiff that in respect of the same suit property it had earlier filed suit Nos. C.S. 831 and 833 of 2005 seeking the relief of permanent injunction. As the time for performance of the agreements of sale had not elapsed when C.S. No.831 and 833 of 2005 were instituted and the plaintiff was “under the bonafide belief that the defendants would perform the agreement” the relief of specific performance was not claimed in the aforesaid suits. However, as inspite of a legal notice issued to the defendants on 24.2.2006, the sale deeds had not been executed by the defendant the latter suits i.e. O.S.Nos 202 and 203 were instituted.

5. While the matter was so situated the defendant in both the suits i.e. the present petitioner, moved the Madras High Court by filing two separate applications under Article 227 of the Constitution to strike off the plaints in O.S. Nos. 202 and 203 of 2007 on the ground that the provisions contained in Order II Rule 2 of the Civil Procedure Code, 1908 (for short the ‘CPC’) is a bar to the maintainability of both the suits. Before the High Court the defendant had contended that the cause of action for both sets of suits were the same, namely, the refusal or reluctance of the defendant to execute the sale deeds in terms of the agreements dated 27.7.2005. Therefore, at the time of filing of the first set of suits i.e. C.S. Nos. 831 and 833 of 2005, it was open for the plaintiff to claim the relief of specific performance. The plaintiff did not seek the