The court ruled that a suit for specific performance was not barred by Order 2, Rule 2 CPC as the appellants were permitted to withdraw a prior suit and file a new one.

JUDGMENT

Harkesh Manuja, J. (Oral)

This order of mine shall decide above-mentioned two appeals which arise out of common judgment and decree dated 25.08.2024, passed by the First Appellate Court and involve common question of law and facts. For convenience, facts are being drawn from RSA-6369-2014.

2. By way of present appeals, challenge has been laid to the judgment and decree dated 25.08.2014 passed by the First Appellate Court whereby, a suit for possession by way of specific performance, as well as permanent injunction, filed at the instance of appellants-plaintiffs stood dismissed on an appeal filed by respondent No.1, claiming himself to be legal heir of deceased-vendor namely, Hazara Singh.

3. Very briefly, based on an agreement to sell dated 24.11.1993 pertaining to land measuring 24 kanal and 8 marla comprised in Khata No.135/183, Khasra No.26//16, 17/1, 24, 25, 33//4,5/1 situated in Village Jainpur, Tehsil and District Ludhiana, the appellants/plaintiffs, filed a suit for possession by way of specific performance. It was averred in the plaint that the agreement was entered into between Harnam Singh i.e. plaintiff No.2 and Hazara Singh @ Rs.4.10 lakhs per acre with 16.08.1994 being the target date and a sum of Rs.1,00,000/- was paid as earnest money. It was further alleged that on 30.11.1993 another sum of Rs.1,00,000/- was paid to vendor- Hazara Singh and the possession of land in question was handed over the appellants-vendees. In the plaint, it was also mentioned that on account of some threat at the hands of Hazara Singh, about alienation of the property in question, a suit for permanent injunction was filed against him on 02.04.1994. In the said suit, Hazara Singh, appeared and filed the written statement on 25.07.1994, disputing the factum of execution of agreement to sell dated 24.11.1993 and later, the said suit was withdrawn on 06.08.1994, seeking liberty to file another suit for possession by way of specific performance and that is how the present suit was filed on 09.08.1994, seeking relief for possession by way of specific performance based on agreement to sell dated 24.11.1993, besides, claiming permanent injunction as well.

4. Originally the suit was filed only against Hazara Singh whereas, later, during pendency, the property in question having been sold in favour of respondent No.9 vide registered sale deeds dated 14.05.1999 and 18.05.1999, he was impleaded as a party-defendant.

5. In the present case separate written statement was filed, one on behalf of Hazara Singh, denying the factum of execution of agreement to sell dated 24.11.1993 as well as the receipt of earnest money from the appellants-plaintiffs. The maintainability of suit was also questioned being barred by Order 2, Rule 2 CPC. In his separate written statement, respondent No.9/defendant No.9 claimed himself to be a bona fide purchaser based on sale deeds dated 14.05.1999 and 18.09.1999, against valid sale consideration.

6. The trial Court vide judgment and decree dated 29.08.2011 decreed the suit in favour of appellants-plaintiffs granting relief of possession by way of specific performance in their favour while holding the valid execution of agreement to sell dated 24.11.1993 as well as the endorsement, (Ex. P2) besides, finding them to be ready and willing to perform their part of the said agreement. It was further held that the suit was not barred under Order 2, Rule 2 CPC and the respondent No.9/defendant No.9 failed to prove himself being bona fide purchaser. Aggrieved thereof, two separate sets of appeals were filed by two separate sets of respondents i.e. one by the legal heir of Hazara Singh and other one by the subsequent purchaser i.e. Anuj Sharma. The First Appellate Court vide judgment and decree dated 25.08.2014 disposed of both the said appeals. The First Appellate Court though, upheld the findings regarding the valid execution of agreement to sell dated 24.11.1993 (Ex. P-1) besides, even upholding the readiness and willingn