The main legal point established in the judgment is that if the cause of action for the suit for specific performance was available at the time of filing the suit for injunction, the plaintiff must file a comprehensive suit seeking relief of specific performance as well as injunction.

1. This Civil Revision Petition is filed against the fair and decreetal order dated 14.06.2011 in I.A. No. 153 of 2010 in O.S. No. 25 of 2008 on the file of the Subordinate Judge, Mannargudi.

2. The petitioner is the first defendant, first respondent is the plaintiff and the respondents nos. 3 to 5 are the legal heirs of deceased second respondent/second defendant. The first respondent filed suit in O.S. No. 25 of 2008 for specific performance of agreement of sale dated 10.02.1991 against the petitioner and deceased second respondent or in alternative direct the petitioner to refund the advance amount together with interest @ 6% per annum. The petitioner filed I.A. No. 153 of 2010 under Order II Rule 2, Order VII Rule 11 and Section 151 CPC for rejection of plaint.

3. According to the petitioner, the suit is barred by provisions of Order II Rule 2 CPC. The first respondent earlier filed O.S. No. 52 of 2005 for permanent injunction restraining the petitioner from selling the suit property in breach of sale agreement dated 10.02.1991 in favour of any third parties and restraining the petitioner and others from interfering with his peaceful possession. He also filed O.S. No. 55 of 2005 for injunction restraining the petitioner and second respondent from interfering with his peaceful possession and enjoyment of the suit property and injunction restraining the petitioner and second respondent from trespassing into the suit property or removing the trees planted for the purpose of fencing.

4. According to the petitioner, when the first respondent filed the above two suits, cause of action for the present suit in O.S. No. 25 of 2008 for specific performance and relief of specific performance were available to the first respondent. The first respondent ought to have claimed relief of specific performance in the first suit O.S. No. 52 of 2005 itself. The first respondent did not obtain any leave under Order II Rule 2 (iii) CPC to file a suit for specific performance subsequently.

5. The first respondent filed counter and denied all the averments made by the petitioner. The first respondent submitted that earlier two suits were filed for injunction as the petitioner was trying to alienate the properties, the petitioner and second respondent were trying to tress-pass into the suit property and restraining them from removing the tress planted for the purpose of fencing. The present suit is for specific performance of agreement of sale dated 10.02.1991. The cause of action and relief sought for in earlier two suits and present suit are different and not one and the same. The first respondent has withdrawn earlier two suits and filed present suit for specific performance and therefore the present suit is not hit by Order II Rule 2 CPC. The first respondent further submitted that the petitioner has not stated under which provision the present suit is barred by law.

6. The learned Judge, considering the averments in the plaint, affidavit and counter affidavit dismissed the application holding that the plaint can be rejected only on the grounds mentioned in Order VII Rule 11 CPC. The first respondent had time to file suit for specific performance when he filed earlier two suits and only after trial, final decision can be rendered.

7. Against the said order of dismissal dated 14.06.2011 made in I.A. No. 153 of 2008 in O.S. No. 25 of 2008, present Civil Revision Petition has been filed.

8. The learned Senior Counsel appearing for the revision petitioner contended that in the plaint filed in O.S. No. 52 of 2005, the first respondent has stated that the petitioner is trying to sell the suit property to third parties and informed him that first respondent is ready to get the sale deed executed in his favour. On 08.06.2005, the first respondent issued a notice to the petitioner. In the said notice, the first respondent called upon the petitioner to come to Sub Registrar Office on 16.06.2005 at 10.00 a.m. and execute the sale deed in his favour. He a