Subsequent suits based on the same cause of action are barred under Order II Rule 2 of the CPC, thus limiting the relief for specific performance in favor of return of advance.

JUDGMENT :

A. BADHARUDEEN, J.

1. This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred as ‘CPC’ for short], challenging the decree and judgment dated 19.11.2016 in O.S. No.159/2011 on the files of the Sub Court, Muvattupuzha, disallowing the relief of specific performance of Ext.A1 agreement, while granting the alternative relief of return of advance amount. The appellant herein is the plaintiff and the respondent is the defendant.

2. Heard the learned counsel for appellant and the learned counsel appearing for the respondent. Perused the verdict under challenge, the records of the trial court and the decisions placed by both sides.

3. Parties in this appeal shall be referred with reference to their status before the trial court, hereafter.

4. The plaintiff approached the trial court seeking performance of Ext.A1 sale agreement dated 26.08.2010, whereby it is alleged that the defendant has agreed to execute sale deed in respect of the plaint schedule property, having an extent of 7 ¼ cents, at the rate Rs.55,000/- per cent. According to the plaintiff, at the time of execution of the agreement, Rs.50,000/- was paid to the defendant as advance and thereafter on 06.10.2010, Rs.15,000/- was also given being part of the sale consideration. Even though, the plaintiff has been ready and willing to perform his part of the contract in the matter of execution of the sale deed by paying the balance consideration, the defendant failed to execute the sale deed. Accordingly, the plaintiff sought the relief of execution of the agreement or in the alternative, to get back the advance amount.

5. Defendant filed written statement and resisted the suit, disputing execution Ext.A1 agreeing to sell the plaint schedule property. According to the defendant, her husband had borrowed Rs.50,000/- from the plaintiff on 26.08.2010 for the construction of residential building and as demanded by the plaintiff Ext.A1 agreement was executed as a security document. The defendant also raised contention that the suit is barred under Order II Rule 2 of CPC, in view of filing of earlier suit vide O.S. No.340/2011 by the plaintiff, seeking the relief of injunction and filing of the present suit, after withdrawing the same, without seeking permission of court to file a fresh suit for specific performance.

6. The trial court raised necessary issues and tried the matter. PWs 1 to 3 were examined and Exts.A1 to A5 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B3 were marked on the side of the defendant.

7. Finally, in paragraph No.11 of the judgment, the trial court found that the second suit filed by the plaintiff seeking the relief of specific performance, based on Ext.A1 agreement is clearly hit by Order II Rule 2 of CPC. Thereafter, on finding proof of execution of Ext.A1, the trial court granted the alternative relief of return of advance amount, with 12% interest from the date of the suit till realization.

8. While assailing the verdict of the trial court, the learned counsel for the plaintiff submitted that, the finding of the trial court, holding the view that the present suit is hit under Order II Rule 2 of CPC is wrong. He submitted further that, as per the evidence tendered by the plaintiff as PW1, supported by the evidence of PW2, the scribe and PW3, the document writer, the execution of Ext.A1 agreement is proved. That apart, readiness and willingness on the part of the plaintiff also is proved. Therefore, the relief of specific performance ought to be granted by the tria