JUDGMENT :

Order on Civil Miscellaneous Review Application No. 192 of 2021

1. Heard Sri Santosh Kumar Kesarwani, learned counsel for the review applicant/defendant no. 1-revisionist, Sri P.K. Jain, learned Senior Counsel assisted by Sri Abu Bakht, learned counsels for the opposite party/ plaintiff-respondent no. 1.

2. This review application has been filed by the counsel for the defendant no. 1- revisionist praying for review of the judgment and order dated 14.07.2021 passed by this Court dismissing the above noted civil revision.

3. 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 Original Suit No. 751 of 2017 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.

4. 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 relief of injunction and therefore, the present suit filed subsequently is barred by Order II, Rule 2 C.P.C. The Hon'ble Supreme Court has held that such a suit is barred by law, hence, the plaint of the suit deserves to be rejected under Order VII, Rule 11 (d) C.P.C. The plaintiff/respondent no.1 filed his objection