JUDGMENT :

Siddharth, J.

1. As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.

2. Heard Sri Santosh Kumar Kesarwani, learned counsel for the defendant no.1/revisionist and Sri Pramod Kumar Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsels for the plaintiff/respondent no. 1 through video conferencing.

3. This civil revision has been preferred by the defendant no.1/revisionist u/s 115 C.P.C. against the order dated 12.02.2020 passed by the Civil Judge (Senior Division), Kanpur Nagar rejecting application, paper no.44-C, filed by defendant no.1/revisionist under Order VII, Rule 11 C.P.C. in Original Suit No. 751 of 2017 (ELDECO Housing and Industry Vs. Ashok Vidyarthi and others).

4. The brief facts relevant for deciding the case are that the defendant no.1/revisionist claiming himself to be the owner of Premises No. 7/89, Tilak Nagar, Kanpur Nagar (area 3295.53 sq.metres) executed a registered agreement to sell in favour of plaintiff/respondent no.1 on 31.08.1998. The plaintiff/respondent no.1 has paid Rs. 10,00,000/-to the defendant no.1/revisionist towards advance sale consideration on different dates. The defendant no.1/revisionist informed the plaintiff/respondent no.1 that with regard to the property in dispute, litigation is pending before the Hon’ble High Court and as soon as the same is decided, he will execute the sale deed in his favour as per the agreement dated 31.08.1998. The plaintiff/respondent no.1 came to know that the defendant no.1/revisionist is contacting third parties for the sale of the property in dispute and therefore, he instituted an Original Suit No. 111 of 2009 for injunction praying for restraining the defendant no.1/revisionist from transferring, selling or alienating the suit property to any third party and from creating any encumbrances over the same. After the institution of the aforesaid suit, the defendant no.1/revisionist informed the plaintiff/respondent no.1 that the litigation is still pending before the Hon’ble High Court with regard to the property in dispute and therefore, he is not in a position to execute the sale deed in favour of plaintiff/respondent no.1, hence, the plaintiff/respondent no.1 withdrew/not pressed his injunction suit. Thereafter, the plaintiff/respondent no.1 came to know that the defendant no.1/revisionist is negotiating with defendant nos. 2 and 3 for selling of the suit property. He also came to know that the litigation regarding the property has come to an end and the defendant no.1/revisionist has won the case from Hon’ble High Court and Supreme Court. Hence, the plaintiff/respondent no.1 instituted the present suit before the trial court praying for a decree for specific performance of contract directing the defendant no.1/revisionist to execute the sale deed of the property in dispute as per the agreement to sell dated 31.08.1998 and put the plaintiff/respondent no.1 in possession in respect of the aforesaid property.

5. During the pendency of suit, defendant no.1/revisionist filed an application under Order VII, Rule 11 C.P.C., paper no. 44-C praying that the plaint of the suit may be rejected, suit being barred by Order II, Rule 2 C.P.C. It was pleaded in the aforesaid application that in paragraph 6 of the plaint, the plaintiff/respondent no.1 has admitted that he had earlier instituted a suit for injunction against defendant no.1/revisionist for restraining him from selling the property in dispute in violation of the terms of the agreement to sell. It was further pleaded that the cause of action in the previous suit for injunction was same as in the present suit for specific performance of contract. In the earlier suit, the plaintiff/respondent no.1 had two reliefs available to him, one of injunction and second of specific performance of contract. He sought only one