The subsequent suit for specific performance of the agreement to sell based on a different cause of action is maintainable.

JUDGMENT

Anil Kshetarpal, J. - While assailing the concurrent findings of the fact arrived at by the Courts below, the defendants have filed this Regular Second Appeal.

2. Some facts are required to be noticed. Late Sh. Jagjit Singh was owner of House No.1022, Sector 21-B, Chandigarh, measuring 2 kanals. It was a two storey house constructed on a plot. On the death of Sh. Jagjit Singh, his three sons namely Sh. Mohan Singh, Sh. Kuldeep Singh and Sh. Paramjit, inherited the property. Sh. Mohan Singh, on his own behalf as well as on the behalf of his two brothers who had executed a General Power of Attorney in favour of Sh. Mohan Singh, entered into an agreement to sell dated 12.06.1989, while agreeing to sell House No.1022, Sector 21-B, Chandigarh, on receipt of Rs.25,000/- as earnest money out of the total sale consideration which was fixed at Rs.14,50,000/-. The plaintiff-Smt. Prem Aggarwal filed a suit for specific performance of the agreement to sell claiming that the defendants have failed to honour the agreement. She asserted that the defendants have refused to honour the agreement, whereas, she was always ready and willing to perform her part of the contract. Defendants contested the suit while denying execution of the agreement to sell dated 12.06.1989, as put forth by the plaintiff in the plaint. It was asserted that in fact, another agreement to sell was signed between the parties on 12.06.1989, for a total sale consideration of Rs.19,25,000/-. It was asserted that the plaintiff had kept the original, whereas, its carbon copy was given to the defendants. It was also claimed that the present suit is barred under Order 2 Rule 2 CPC as the previous suit filed by the plaintiff for grant of decree of permanent injunction on 22.02.1990 was the first suit arising on the same cause of action.

3. The trial Court, on appreciation of pleadings, culled out the following issues:-

"1. Whether the plaintiff is entitled for specific performance of the agreement to sell dt. 12.6.1989? OPP

2. Whether the present suit is not maintainable in the present form? OPP

3. Whether the plaintiff has got no locus standi to file the present suit? OPD

4. Whether the suit is bad for non-joinder of necessary parties? OPD

5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD"

On 13.09.2000, two additional issues were framed which are extracted as under:-

"6. Whether the property is HUF? OPD

7. Relief."

4. The plaintiff appeared as PW-1 and examined Sh. Amar Singh Oberoi as PW-2. PW-3 Sh. Yashpal Kohli is another witness of the agreement to sell. She also examined PW-4 Sh. Yogesh Joshi, PW-5 Sh.Y.S. Kaushik, PW-6 Sh. Jasbir Singh, PW-7 Sh. Vitar Pal, PW-8 Sh. Vinod Gupta, PW-9 Sh. Desh Raj, PW-10 Sh. D.C. Aggarwal (the husband of the plaintiff).

Per contra, the defendants examined DW-1 Sh. Surjit Singh, DW-2 Sh. Vibhushan Kumar, DW-3 Sh. Harnam Singh, DW-4 Sh. Mohan Singh, DW-5 Col. Iqbal Singh, DW-6 Jassi Anand, a private handwriting and fingerprint expert. In rebuttal evidence, the plaintiff examined PW-1 Sh. Sanjay Joshi, PW-12 Sh. Rajender Kumar Aggarwal, PW-13 Sh. N.K. Jain.

As already noticed, both the Courts have granted decree for specific performance of the agreement to sell dated 12.06.1989.

5. This Bench has heard the learned counsel representing the parties and with their able assistance perused the paperbook and the record which was requisitioned. The learned counsel representing the parties has also filed the list of dates and events along with synopsis.

6. In the considered opinion of the Court, the following question of law arises for consideration:

If the cause of action to file the suit for specific performance had not arisen on the relevant day on which the suit for grant of permanent injunction was filed, then, whether the subsequent suit for grant of specific performance of the agreement to sell shall be barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908 or not?