A subsequent suit for specific performance of an agreement is barred under Order 23 Rule 1(4) of the Code of Civil Procedure, 1908, if the earlier suit for the same relief was withdrawn without obtaining permission to file a fresh suit.

1. THE suit has been transferred to this Court pursuant to an order dated april 13, 2006 made in ALP No. 4 of 2005. The order of transfer required the first defendant's demurrer application then pending before the Alipore Court to also stand transferred to be decided by this Court. GA No. 2317 of 2006 is the fourth defendant's application for rejection of the plaint. GA Nos. 3197 of 2006 and 2584 of 2007 are the plaintiff's applications for interlocutory reliefs.

2. THE fourth defendant has applied for rejection of the plaint relating to this suit for specific performance of an agreement and/or for dismissal of the suit on three-fold grounds. The fourth defendant says that in view of an earlier suit for specific performance of the same agreement having been withdrawn by the plaintiff without liberty to file afresh, the plaintiff cannot maintain this subsequent action. The fourth defendant claims that even if the suit were otherwise maintainable, it is ex facie barred by the laws of limitation. Finally, the fourth defendant seeks to demonstrate that in view of the admitted conduct of the plaintiff evident from the plaint, the plaintiff is disentitled by the provisions of the Specific Relief Act, 1963 from claiming specific performance.

To appreciate the grounds that the defendants urge to bring the suit to an untimely conclusion, it is necessary to assess the plaintiff's case. The plaintiff says that by a writing of March 3, 1968 the plaintiff agreed to purchase a piece of land at Kasba from the defendants or their predecessors-in-interest. The plaintiff says that out of the plot of 85 bighas and a bit, the proposed transferors agreed to carve out 78 bighas for transfer thereof to the plaintiff at Rs. 2,800/- per bigha adding up to Rs. 2,18,400/ -. According to the plaintiff, the proposed transferors were to execute the conveyance in favour of the plaintiff or its nominee 'within six months upto the limit of 12 months' from the date of the agreement. The document of March 3, 1968 is in Bengali and an inaccurate English translation thereof has been produced by the plaintiff.

3. THE plaintiff says that it paid Rs. 15,000/- by way of initial consideration and further sums till 1974 totaling to Rs. 1,16,800/-and was always ready and willing to pay the balance amount to obtain absolute rights in respect of the 78bigha plot but the defendants prevented the plaintiff obtaining the land.

4. THE plaintiff cites sundry expenses incurred for improving the property. The plaintiff claims to be in possession since 1968. The plaintiff says that prior to the agreement of 1968 the entirety of the plot stood vested in the State under the west Bengal Estates Acquisition Act, 1953 and the proposed transferors had concealed that proceedings had been launched in 1967 for such purpose. Upon the plaintiff coming to know of the vesting, it applied for a long lease under the state and the State granted a lease of much shorter duration.

The defendants herein and/or the owners of the land challenged the order of vesting and settlement by way of proceedings under Article 226 of the constitution of India before this Court where the plaintiff was added as a party. The writ petition was disposed of by directing the defendants herein and/or the owners to submit the relevant 'b' form afresh. Both the State and the plaintiff preferred appeals from the order of September 24, 1998 by which the writ petition was disposed of.

5. THE earlier suit, TS No. 127 of 1995, was filed before the District Court at alipore seeking the following reliefs:

' (a) for passing a decree for Specific Performance of Contract dated 3. 3. 68 in favour of the plaintiff.

(b) for a direction upon the defendants to execute and register the deed of conveyance or conveyances in favour of the plaintiff or its members on taking the balance consideration money failing which the plaintiff may be directed to deposit the balance consideration money in court and the learned court may be please