RAJIV SAHAI ENDLAW, J.

1. The defendant after filing the written statement to the suit for specific performance of an agreement of sale of immovable property, submitted before the court that the suit was not maintainable. This court vide order dated 23rd May,2007, even before the framing of issues, listed the matter for arguments on the question of maintainability of the suit. The senior counsels for the plaintiff as well as the defendant have been heard on the aspect of maintainability.

.2. The defendant has challenged the maintainability of the suit for the reason of the plaintiffs having earlier filed a suit for permanent injunction for restraining the defendant from selling, encumbering or parting with the possession of the property agreed to be sold to the plaintiffs to any other person. It is stated in para 1 of the preliminary objections in the written statement of the defendant that the said suit was filed by the plaintiffs before the court of the Civil Judge, Delhi and along with the said suit an application for interim relief was also filed; that the said application was rejected by the court of the Civil Judge, Delhi and no appeal had been preferred by the plaintiffs; that by the earlier suit for injunction also, the plaintiffs were seeking to enforce their rights under the alleged agreement to sell and the present suit for specific performance is also for enforcement of the same alleged agreement; that the plaintiffs ought to have sought the relief of specific performance in the previously instituted suit which till the time of institution of the present suit was stated to be still pending before the court of Civil Judge, Delhi. It was thus urged that the present suit was barred under the provisions of order 2 rule 2 of CPC.

3. It is further the admitted position that the plaintiffs after the institution of the present suit have withdrawn the previous suit for permanent injunction. The court of the Civil Judge, Delhi vide order dated 26th February,2007 (the present suit was instituted on 8th January, 2007) allowed the said previous suit to be withdrawn unconditionally on the prayer of the plaintiffs, subject however to costs of Rs.5,000/-. The senior counsel for the defendant has thus argued on the maintainability of the present suit not only under order 2 rule 2 of the CPC but also argued that the present suit is barred by the provisions of order 23 rule 1 of the CPC.

4. Though the suit was got listed for arguments on maintainability but it may be mentioned that during the arguments on 22nd July,2008 it was discovered that the pleadings/orders of the earlier suit on the basis whereof maintainability was challenged had not been filed. Direction in that regard was made. The defendant thereafter filed the pleadings and orders in the said earlier suit. It may also be noticed that it was the preliminary contention of the senior counsel for the plaintiffs that without framing an issue, the arguments on maintainability could not be heard but in view of the earlier order listing the suit for arguments on maintainability having attained finality, the counsels were heard.

5. The plaintiffs have sued for specific performance of an agreement dated 2nd August, 2004 As per the agreement filed by the plaintiffs, the balance sale consideration was payable by the plaintiffs to the defendant on or before 31st January, 2007 against execution of all requisite documents viz sale deed, possession letter, receipt etc. and delivery of physical possession of the property by the defendant to the plaintiffs. The parties are at issue with respect to the said date of 31st January, 2007. It is the contention of the defendant that the plaintiffs have in their copy of the agreement changed the date for payment of balance sale consideration and completion of transaction from 31st March,2005 to 31st January,2007. But the same does not fall for adjudication at this stage. The maintainability of the suit is to be adjudicated on the averments of t

Click Here to Read the rest of this document