Point of Law: Mere plea of Order II Rule 2 of CPC taken up by the petitioners as defendants in the trial Court was not with respect to filing of the suit on the same cause of action, but, Order II Rule 2 of CPC was attempted and invoked on the ground that the relief of permanent injunction and specific performance of the agreement ought to have been prayed together in a single suit, as such, the suit was not maintainable.

ORDER :

The present respondent as plaintiff has instituted a suit against the present petitioners arraying them as defendant Nos.1 and 2 respectively in the Court of learned III Senior Civil Judge, at Vijayapura (henceforth for brevity referred as ‘the trial Court’) in O.S.No.110/2019 for the relief of permanent injunction. The present petitioners as defendants appearing in the matter through their counsel filed an application i.e., I.A.No. II under Order VII Rule 11(d) of Code of Civil Procedure (henceforth for brevity referred as ‘CPC’) for rejection of plaint as barred by law. The plaintiff filed his statement of objection to the said application. The trial Court after hearing both sides by its impugned order dated 11.11.2020 dismissed the said I.A.No.II. Aggrieved by the same, the defendants in the trial Court who are the applicants in the said application I.A.No.II have preferred the present revision petition.

2. The respondent is being represented by his learned counsel. Though this matter was listed for admission, however with the consent from both sides, the matter is taken up for its final disposal. Accordingly, heard arguments from both sides.

3. Perused the materials placed before the Court.

4. The point that arises for my consideration is whether the impugned order suffers from any irregularity warranting interference at the hands of this Court?

5. The summary of the plaint in the suit filed by the present respondent as plaintiff in the trial Court in O.S.No.110/2019 is that the suit schedule property i.e., land property in Sy.No.151/3A measuring 9 acres 34 guntas situated at Mahala Bagayath, Vijayapura, was originally belonging to the defendant Nos.1 and 2 and one Smt. Shobhana W/o Ramchandra Baji. The plaintiff after negotiation with the owners of the said property agreed to purchase the said property for a valuable consideration and accordingly on 22.03.1996, entered into an agreement wherein the plaintiff paid them the entire sale consideration of a sum of Rs.7,00,000/-. The vendors agreed to execute the sale deed as and when called for by the plaintiff(purchaser). It was also agreed that the plaintiff has to form plots in the said property and call for executing the sale deed of the properties in favour of purchaser then the defendant Nos.1 and 2 and said Smt. Shobhana have to execute the sale deed in favour of the said purchasers. As per the agreement, on the same date the plaintiff was put into possession of the property. Thereafter as per the agreed terms, the plaintiff formed several guntas of plots in the said property, in which regard, the defendant Nos.1 and 2 and the said Smt.Shobhana executed the sale deed pertaining to the gunta plots in favour of several purchasers of about 40 to 50 plots. Later due to the government order, the sale and purchase of gunta plots were banned, hence, defendant Nos.1 and 2 and said Smt. Shobhana executed the lease-cum-sale deed in favour of 100 to 150 persons and those purchasers constructed their houses and are in possession of their respective properties. That being the case, since Smt. Shobhana, in the meantime passed away, the defendant No.3 claiming himself as power of attorney of defendant Nos.1 and 2 came along with some gunda elements on 07.02.2019 and threatened the plaintiff that he would dispossess the plaintiff from the possession of the suit property. Though the plaintiff approached the police with a complaint but the police refused to receive the complaint stating that the said matter was a civil in nature. This constrained the plaintiff to institute a suit against the defendants for relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property.

6. In the application filed under Order VII Rule 11 (d) CPC in the trial Court, the applicants have taken the contention that the plaintiff without filing a suit for specific performance of the alleged agreement of sale of the year 1996, cannot maintain a suit only for r