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2020 Supreme(P&H) 895
IN THE HIGH COURT OF PUNJAB AND HARYANA
Anil Kshetarpal, J.
Anil Kumar And Others - Appellant
Versus
Gulab Singh And Others - Respondent
RSA-2208-2014(O&M)
Decided On : 03-02-2020
Mr.Kanwal Goyal, Advocate for the appellants; Mr. Arun Jain, Sr. Advocate with Mr. Abhishek Dhull, Advocate for respondents No. 1, 2 &4
The main legal point established in the judgment is that the bar under Order 2 Rule 2 CPC cannot be invoked unless it is established that the subsequent suit was based on the same cause of action as the previous suit.
Headnote:
Order 2 Rule 2 CPC - Suit for Specific Performance - [PLAINTIFFS-APPELLANTS] - [SPECIFIC PERFORMANCE OF AGREEMENT TO SELL] - [Order 2 Rule 2 CPC] - The court discussed the provisions of Order 2 Rule 2 CPC and emphasized the need to establish that the subsequent suit was based on the same cause of action as the previous suit. The court highlighted the importance of producing the plaint of the previous suit to determine the existence of the same cause of action. The judgment in the case of Gurbux Singh vs. Bhooralal AIR 1964 SC 1810(1) was referenced to emphasize the requirement of proving the identity of the cause of action in the two suits before invoking the bar under Order 2 Rule 2 CPC. The court concluded that the subsequent suit for specific performance of the agreement to sell was not barred under Order 2 Rule 2 CPC as the plaintiffs did not have the cause of action to file the suit at the time the previous suit for injunction was filed.
Fact of the Case:
The plaintiffs filed a suit for specific performance of an agreement to sell after previously filing a suit for grant of permanent injunction. The defendants contested the suit, arguing that the subsequent suit was barred under Order 2 Rule 2 CPC.
Finding of the Court:
The court found that the subsequent suit for specific performance of the agreement to sell was not barred under Order 2 Rule 2 CPC as the plaintiffs did not have the cause of action to file the suit at the time the previous suit for injunction was filed.
Issues: The main issue was whether the subsequent suit for specific performance of the agreement to sell was barred under Order 2 Rule 2 CPC.
Ratio Decidendi: The court emphasized the need to establish that the subsequent suit was based on the same cause of action as the previous suit before invoking the bar under Order 2 Rule 2 CPC. It was concluded that the subsequent suit was not barred as the plaintiffs did not have the cause of action to file the suit at the time the previous suit for injunction was filed.
Final Decision: The judgment passed by the learned First Appellate Court was set aside, and that of the learned Trial Court was restored.
JUDGMENT
Anil Kshetarpal, J. - Plaintiffs-appellants are in Regular Second Appeal against the judgment passed by the learned First Appellate Court reversing the judgment passed by the learned Trial Court.
2. In the considered view of this Court, following question of law arises for adjudication:-
i) Whether in absence of plaint of the previous suit, it would be appropriate to hold that the subsequent suit is barred/not maintainable under Order 2 Rule 2 CPC?
3. The plaintiffs had instituted a suit for specific performance of the agreement to sell dated 14.10.2004 with consequential relief of possession and permanent injunction. It was pleaded by the plaintiffs that defendants No. 1 and 2 had entered into an agreement to sell with the mon 14.10.2004 agreeing to sell land measuring 73 kanals 14 marlas for a total sale consideration of Rs.52 lacs, on receipt of Rs. 8 lacs as earnest money. Parties had agreed to execute and register the sale deed on 10.7.2005.
4. Defendants No.l and 2 filed their separate written statements that defendant No.l has already entered into an agreement to sell with Balwinder Singh (defendant no.3) s/o Harnam Singh with respect to land measuring 14 kanals and 16 marlas. Defendant No. 1 has also entered into another agreement to sell with defendant no.3 on 25.6.2004 relating to land measuring 14 kanals 16 marlas. It was further pleaded that defendants no.l and 2 had also entered into an agreement to sell dated 21.8.2004 with defendant no.3 with respect to land measuring 44 kanals 1 marla. Defendants further pleaded that when the plaintiffs contacted them for selling the land in dispute, initially, they refused, however, later on it was agreed that the defendants no. 1 and 2 will request defendant no.3 to cancel the various agreements to sell and if he did not agree for cancellation of the agreements to sell, defendants no. 1 and 2 shall not be bound to execute the sale deed in favour of the plaintiffs. It was pleaded that the thumb impressions/signatures of the defendants were obtained by the plaintiffs on blank papers but earnest money was never paid. It was further pleaded that agreement to sell is result of fraud and misrepresentation.
5. Defendant no.3 contested the suit by pleading that defendants no. 1 and 2 had entered into agreements to sell with him on 25.5.2004, 25.6.2004 and 21.8.2004. He further pleaded that the agreement to sell dated 14.10.2004 in favour of the plaintiffs is a procured document.
6. Learned Trial Court on appreciation of evidence found that the plaintiffs were successful in proving their case, hence, entitled to decree for possession by way of specific performance of the agreements to sell. Learned Trial Court also found that the various agreements to sell set up by the defendants were only in order to defeat the rights of the plaintiffs in the suit land arising from the agreement to sell dated 14.10.2004.
7. Defendants no.l and 2 filed an appeal which has accepted only on the ground that the subsequent suit filed by the plaintiffs is barred under Order 2 Rule 2 CPC. It has been held that since the plaintiffs had previously filed a suit for grant of permanent injunction on 9.6.2005 and therefore, the present suit is not maintainable under Order 2 Rule 2 CPC.
8. This Court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below and the record.
9. Learned counsel for the appellants has submitted that previous suit was filed only for grant of decree for permanent injunction as defendants no.l and 2 were threatening to alienate the suit property. He submitted that on the date the suit for permanent injunction was filed, cause of action for filing the suit for specific performance of the agreement to sell had not even arose because the target date agreed to, between the parties for execution and registration of the sale deed, was 10.7.2005. He further submitted that pleadings of the previous suit for g
