IMPORTANT POINT
Suit for specific performance filed after dismissal of suit for injunction is barred under Order II Rule 2 CPC and deserves to be rejected.

JUDGMENT :

RAJESH BINDAL, J.

1. Leave granted.

2. Aggrieved against the order¹[Order dated 27.09.2021] passed by the High Court²[High Court of Judicature at Allahabad] in Review Application³[Review Application No. 192 of 2021] in Civil Revision⁴[Civil Revision No. 28 of 2020], the plaintiff is in appeal before this Court. Vide aforesaid order, the application filed by respondent No. 1- defendant before the Trial Court⁵[Civil Judge (Senior Division), Kanpur Nagar] under Order VII Rule 11(d) C.P.C. was allowed and the suit filed by the appellant was dismissed.

3. Briefly stating, the facts available on record are that a Memorandum of Understanding⁶[Hereinafter referred to as ‘MoU’] was entered into between the appellant and respondent No. 1 on 31.08.1998, regarding sale of the property in question. It was specifically mentioned in the MoU that there is a litigation pending between the family members of the respondent No. 1. The sale deed will be got registered immediately after the litigation is over and the right of the vendor is determined. The respondent No. 1 shall inform the appellant when the rights of the parties are finalised. As the appellant came to know that the respondent No. 1 is trying to sell the property to third parties, it filed a suit for injunction⁷[Original Suit No. 111 of 2009]. The prayer made in the suit was that the defendant (respondent No. 1 herein) be restrained from transferring, selling or alienating the suit property in favour of anyone else except the plaintiff (appellant herein). It was also prayed that he be restrained from creating any encumbrance on the property. In the written statement filed in the aforesaid suit, the stand taken by respondent No. 1 was that he was not selling the property or creating any third-party rights therein. The suit was accordingly dismissed.

4. The appellant was never updated by respondent No. 1 about the status of the litigation between the family members. The petitioner having come to know that respondent No. 1 was again intending to sell the property in question issued two public notices to inform the public at large from not entering into any agreement in respect of the property in question. When it came to the notice of the appellant that respondent No. 1 was again trying to dispose of the property, as the litigation between the family members had been finally resolved by this Court in Shreya Vidyarthi v. Ashok Vidyarthi and others, (2015) 16 SCC 46: 2015:INSC:934, a suit⁹ [Original Suit No. 751 of 2017] for specific performance was filed seeking enforcement of MoU dated 31.08.1998. It is in the aforesaid suit that application was filed by respondent No. 1 under Order VII Rule 11(d) C.P.C. for rejection of the plaint on the ground that in terms of Order II Rule 2 C.P.C., the suit was barred by law. The relief, as claimed in the suit, was available to the appellant when the suit for injunction was filed by it and a fresh suit was not maintainable. The Trial Court, vide order dated 12.02.2020 rejected the application. The revision filed against the aforesaid order was dismissed by the High Court vide order dated 14.07.2021. However, there being no error apparent on the record of the order, which was a detailed and speaking one, the respondent No. 1 filed Review Application, which was allowed by the High Court and consequently the application filed under Order VII Rule 11(d) C.P.C. was allowed and the suit filed by the appellant was rejected.

5. The argument raised is that for consideration of an application under Order VII Rule 11 C.P.C., it is only the pleadings in the suit which are to be considered and no other material. A plain reading of the plaint shows that there was a cause of action to file the suit which was not time barred. The MoU entered into between the parties clearly mentioned that there was litigation pending between the family members; as and when the rights are finally determined by the Court, the appellant will be informed and subsequent thereto th