The main legal point established in the judgment is that while the suit for specific performance was barred by Order II Rule 2 CPC, the appellant/plaintiff was entitled to file a fresh suit for the subject matter of the earlier suit, including the relief of specific performance.

1. This first appeal under Section 96 of the Code of Civil Procedure,1908 (CPC) impugns the judgment and decree dated 16th September, 2015 of the Court of District and Sessions Judge (North) Rohini Courts, Delhi of dismissal, on a preliminary issue as barred by Order II Rule 2 CPC, of CS(OS) No. 69/2014 filed by the appellant/plaintiff for (a) specific performance of an agreement of sale of immovable property; (b) injunction restraining the respondent/defendant from dispossessing the appellant/plaintiff from the said property; and, (c) injunction restraining the respondent/defendant from creating third party interest in the said property.

2. The appeal came up before this Court first on 27th November, 2015 when notice thereof was issued. Thereafter on 29th April, 2016, the following order was passed.

“1. The appeal impugns the judgment and decree of dismissal of a suit for specific performance of an agreement to sell of immovable property as barred by Order II Rule 2 of the Code of Civil Procedure, 1908.

2. Notice of the appeal was issued and the Trial Court record requisitioned.

3. Though the notice is reported to have been served but none appears for the respondent.

4. Though the learned Additional District Judge in dismissing the suit has relied upon my judgment in Lakhbir Singh Vs. Arun Kumar Khanna 209 (2014) DLT 708 but as far as I recollect, Supreme Court in Inbasagaran Vs S. Natarajan (Dead) Through LRs (2015) 11 SCC 12 has taken a view contrary to that taken by me in Lakhbir Singh supra against which it appears no appeal was preferred.

5. The counsel for the appellant seeks time to examine.

6. Even otherwise, it is deemed expedient to give another opportunity to the respondent to appear.

7. List on 19th May, 2016.”

3. The counsels were heard on 19th May, 2016 and judgment reserved.

4. The trial court record has been requisitioned and has also been perused.

5. The appellant/ plaintiff on 18th March, 2014 instituted the suit from which this appeal arises pleading (i) that the husband of the respondent/defendant was the owner of property No. C-21, Top Floor, measuring 200 sq yds, Adarsh Nagar, Village Bharola, Netaji Road, Delhi – 33 and had agreed to sell the same to the appellant/plaintiff for a total sale consideration of Rs. 13,50,000/- and received bayana amount of Rs. 1,50,000/- from the plaintiff and executed a bayana agreement dated 16th May, 2007; (ii) that as per the said bayana agreement the balance consideration of Rs. 12,00,000/- was to be paid in installments of Rs. 15,000/- each per month w.e.f. 1st January, 2008 to January, 2012 and thereafter the sale deed had to be executed; (iii) the husband of the respondent/defendant had also handed over peaceful and vacant possession of the said property to the appellant/plaintiff and the appellant/plaintiff has since then been in possession thereof; (iv) that the appellant/plaintiff has paid Rs. 15,000/- per month w.e.f. 1st January, 2008 had has paid total amount of Rs. 8,75,000/- on different dates upto December, 2011 against receipt; (v) as per bayana agreement dated 16th May, 2007, the appellant/plaintiff is liable to pay interest at 2% on the delayed payment; (vi) that the husband of the respondent/defendant expired and which fact came to the knowledge of the appellant/plaintiff in February, 2012; (vii) though the appellant/plaintiff approached the respondent/defendant to execute the sale deed after receiving the balance sale consideration but the respondent/defendant refused; (viii) the respondent/defendant sent legal notice dated 2nd March, 2013 to the appellant/ plaintiff averring the appellant/plaintiff to be a tenant in the property and terminating the tenancy of the appellant/plaintiff; (ix) that the respondent/defendant on 30th August, 2013 attempted to dispossess the appellant/plaintiff from the property.

Accordingly, the suit for reliefs aforesaid was filed.

6. The respondent/defendant contested the suit by filing a written statement inter alia on the