A second suit for specific performance is barred under Order II Rule 2 CPC if the relief was available but omitted without leave during a previous suit on the same cause of action. Oral contracts for immovable property require strict proof of concluded terms beyond mere inference.

JUDGMENT :

K. VINOD CHANDRAN, J.

Leave granted.

2. A suit for specific performance, based on an oral agreement, was decreed concurrently, impugned in the present appeal. That a suit for specific performance can be based on an oral agreement is beyond cavil, as held in Brij Mohan and Ors. v. Smt. Sugra Begum and Ors., (1990) 4 SCC 147 and K. Nanjappa (Dead) by Legal Representatives v. R.A. Hameed @ Ameersab (Dead) by Legal Representatives and Another, (2016) 1 SCC 762. In fact, what was stated in paragraph 20 of the decision in Brij Mohan(Supra) was reiterated in paragraph 22 of K. Nanjappa(Supra). We extract from paragraph 20 of the former decision, which reads as under: -

20……We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.

[emphasis supplied by us]

3. In Brij Mohan(Supra), on facts, as stated in paragraph Nos.21 and 22 it was found that there was no proof of a concluded contract arrived at and there were many lacunae which would commend the Court to find otherwise. In K. Nanjappa(Supra), this Court found the reliance on an agreement written in a quarter sheet of paper, merely for the reason of it having been produced before the Magistrate’s Court in a criminal proceeding, to be improper, especially when an earlier agreement referred to therein was not produced. Hence, though reliance could be on an oral agreement, there should be proof beyond doubt of a concluded contract between the parties; strict proof being the norm and a mere inference impermissible.

4. In the present case, however, there were other contentions addressed against the suit, by Mr. Mihir Thakore, learned Senior Counsel appearing for the appellants, on facts and on the maintainability of the suit itself. On maintainability, it is submitted that there was a suit filed for injunction simpliciter earlier, which was withdrawn by the plaintiff, seeking leave to file a fresh suit. Then the fresh suit was filed with a prayer for specific performance, which is deemed to have been relinquished, as per the rigor of Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC). The plaint in the earlier case was on record and was admitted in the plaint filed in the present suit; the subsequent one. The cause of action for a claim of specific performance had arisen at the earlier instance, even as per the pleadings then, which however was not sought for. There was no leave taken at the time of filing of the suit for injunction simpliciter, which would have enabled a fresh suit with a prayer for specific performance. The suit hence, has to be found not maintainable as filed at the second instance.

5. Further, on the contract itself, it is argued that there was no concluded contract. The Courts relied only on the oral testimonies of the witnesses wherein there were gross inconsistencies. The very plaint had inconsistent pleadings and amendments were made to the suit filed in 2007, far later in the year 2011. The letter relied on by both the Trial Court, and the High Court does not bring out a concluded contract