The present suit for recovery and specific performance is barred by Order 2 Rule 2(3) CPC.

Alok Singh, J.

1. In the present petition, defended - petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 16.11.2006 passed by the Civil Judge, Junior Division, Chandigarh, whereby the trial Court has held that the suit filed by the plaintiff - respondent is not barred by Order 2 Rule 2 CPC.

2. Brief facts of the present case are that an agreement to sell was executed between the parties on 25.1.1988. In the agreement to sell, following terms and conditions were settled between the parties: -

"i) That the sale price of the above said house has been fixed as Rs. 18,50,000 (Rupees Eighteen lacs fifty thousand only).

ii) That the above said purchaser has paid a sum of Rs.50,000/- (Rupees fifty thousand only) i.e. Rs.25,000/- vide cheque No.247019 dated 25.1.1988 payable at Canara Bank, Sector 17-C, Chandigarh and Rs.25,000/- vide cheque No.247021 dated 25.1.1988 and the above said seller acknowledges its receipt.

iii) That the last date for completion of the bargain has been fixed as 25.6.1988, which can be mutually extended with the consent of both the parties, if necessary.

iv) That the price of the above said house includes the telephone and all other fittings and fixtures in the house.

v) That the above said purchaser can get the sale deed registered in her own name or in the name of her nominee(s).

vi) That the expenses on the registration of the sale deed i.e. purchase of stamps and registration fee etc. shall be borne by the purchaser alone.

vii) That the above said seller shall obtain the No Objection Certificate from the Estate Office, Chandigarh and Income Tax Clearance Certificate from the Income-tax Department for the sale of his above said house.

viii) That the above said seller shall be responsible for the payment of all electricity and water bills and telephone bills till the date of registration of the sale deed of the aforesaid house.

ix) That in case the above said seller fails to perform his part of the contract in getting the sale deed registered in favour of the purchaser or her nominee(s) within the stipulated time, he will return double the amount received as earnest money without any hesitation and delay in case the above said purchaser fails to perform her part of the contract in getting the sale deed registered within the stipulated period, her earnest money shall stand forfeited in favour of the seller. However, it is the option of the purchaser either to accept the clause of damages or get the sale deed registered through the Court of law under the Specific Performance and Relief Act.

x) That the above said seller shall hand over the vacant possession of the entire house to the above said purchaser alongwith all the original documents of the house including the deed of conveyance in original at the aforesaid house.

xi) That this bargain has been finalized with the efforts of M/s. K.D. Sharma & Sons, Property Dealer, SCO No.837-38, Sector 22-A, Chandigarh to whom both the parties shall pay 2% commission separately on the total consideration amount.

xii) That this agreement has been made in triplicate, the original is kept by the purchaser, the first copy of the above said seller and second copy of the above said Property Dealer for their reference and record."

3. Initially plaintiff - respondent filed a suit for injunction against the defendant - petitioner herein restraining the defendant from alienating the suit property in favour of third party. However, the aforesaid suit was withdrawn unconditionally. Thereafter, plaintiff filed suit for recovery of Rs.8,33,510/-.

4. The aforesaid suit was filed on 17.8.1988 under Order 37 CPC as summary suit. No relief for specific performance was sought in the earlier suit for recovery. Realising the mistake, plaintiff moved an application seeking amendment in the plaint for incorporation of the relief of specific performance. The application for amendment was initially allowed by the