Subsequent suit barred under Order II Rule 2(3) CPC if on same cause of action as withdrawn prior suit, omitting reliefs without leave; plaint rejectable under Order VII Rule 11 if averments disclose such bar or limitation expiry without trial.

JUDGMENT :

SHAILESH P. BRAHME, J.

1. Heard both sides finally with their consents.

2. Applicants are assailing order dated 03.02.2026 passed below Exhibit 41, refusing to reject plaint under Order VII Rule 11 of the Code of Civil Procedure (for the sake of brevity and convenience hereinafter referred as to the “C. P. C.”) in Spl. C. S. No. 216 of 2023. They are original defendant Nos. 1 to 5. The respondent No. 1 is the original plaintiff. The respondent Nos. 2 to 5 are original defendant Nos. 6 to 9. Parties are referred to by their original status in the suit.

3. The controversy pertains to 32 plots which are part and parcle of gut No. 4/5 admeasuring 1H 24R situated at Khopegaon, Tq. and Dist. Latur. The plaintiff and his family members are the owner of the subject matter and other lands. A development agreement was executed and registered on 31.05.2014 between the defendant No. 1 on one hand and the plaintiff and others for the purpose of housing project which was to be completed within four years. Accordingly defendant No. 1 paid Rs. 3.20 crores to the plaintiff and other persons. The plaintiff received Rs. 82 Lakhs towards his share. There were disputes and development agreement could not be materialized. Alternatively it was agreed between the parties to sell the plots to the defendant No. 1. A registered sale deed was executed on 27.11.2017 for 32 plots by plaintiff in favour of defendant Nos. 1 to 5 for consideration of Rs. 17 crores. It was agreed to adjust the earlier payments made in pursuance of development agreement. Accordingly plaintiff was to get Rs. 3.94 Lakhs towards his share. He was given cheques by the defendant Nos. 1 to 5.

4. All cheques were not honoured and plaintiff owed Rs. 1,86,80,000/- from the defendants. Time was extended by him upto 31.03.2020 for payment of the balance amount, but he was unable to secure the payment. On or about 20.11.2022 plaintiff offered to refund the amount he received towards earnest and solicited possession of the plots. But the defendants refused to accede. This gave cause of action for filing Spl. C. S. No. 482 of 2022 for possession and in alternative recovery of Rs. 2,61,53,000/-. The sole defendant No. 1 appeared in the suit and contested the same.

5. Plaintiff submitted application Exhibit 31 U/o XXIII Rule 1 of the C. P. C. seeking withdrawal of the suit on the ground of formal defects stated in para No. 8 of the application. It was contested by the defendant. By reasoned order trial Court allowed the application with cost and granted permission to withdraw earlier suit with liberty to file fresh suit on same cause of action vide order dated 21.10.2023. It was challenged by the defendant No. 1 in Writ Petition No. 14806 of 2023. The learned Single Judge dismissed the writ petition by reasoned order on 08.05.2024. The order was confirmed by the Hon’ble Apex Court.

6. In pursuance of the liberty granted by the Trial Court for filing fresh suit on same cause of action the plaintiff preferred Spl. C. S. No. 216 of 2023 on 01.11.2023. The reliefs of specific performance of contract, possession, mandatory injunction, perpetual injunction and repayment of Rs. 2,33,56,000/- with interest are solicited. The partners of the original defendant No.1 are also impleaded as defendant Nos. 2 to 5 in the suit.

7. The defendant Nos. 1 to 5 filed application Exhibit 41 U/O VII Rule 11(a) and