IMPORTANT POINT
Revisional application filed before High Court should be treated in substance as miscellaneous appeal.

Satish K. Agnihotri and M.M. Sundresh, JJ.— The appellant herein was plaintiff in the suit. Defendants/Respondents 1 and 2 are the owners and the 3rd respondent/3rd defendant is the power agent. A development agreement was entered into by the plaintiff on 10.9.2003 with the third defendant, who is the power of attorney agent of defendants 1 and 2 at Chennai under Ex.P.9 to develop four plots of land in S.No.415, Mogappair village, Saidapet Taluk, Chengalpet District. Alleging that the respondents are threatening to dispossess the appellant/plaintiff, a suit was filed by him in O.S.No.30 of 2005 on the file of District Munsif’s Court, Ambattur seeking declaration that the agreement dated 10.9.2003 by the defendants is illegal and invalid land for a permanent injunction restraining the defendants from preventing the plaintiff with the construction or development of the plaint schedule property. Thereafter, a comprehensive suit was filed in C.S.No.460 of 2005 before this Court claiming the following relief:

‘‘The plaintiff therefore prays for a judgment and decree against the defendants:

(a) granting specific performance of the ‘‘development agreement’ dated 10.9.2003 entered into between the plaintiff and defendants 1 and 2 represented by their Power of Attorney Agent 3rd defendant;

(b) for permanent injunction restraining the defendants from in any manner preventing or interfering with the plaintiff from proceeding with construction in the suit schedule property in accordance with the approved plan hereafter to be obtained from the C.M.D.A and or in the alternative;

(c) to direct defendants 1 and 2 to pay plaintiff jointly and severally a sum of Rs.71,00,000 (seventy one lakhs towards damages for breach of suit agreement and Rs.20,00,000 (twenty lakhs) being the return of advance amount in all a total sum of Rs.91,00,000/-

(d) for costs of the suit;

(e) and pass such further or other orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

Learned single Judge framed the following issues:

“1. Whether the plaintiff is entitled to get a decree for specific performance of contract on the basis of development agreement dated 10.9.2003 and to get a consequential order of permanent injunction as prayed for?

2. Whether the plaintiff is entitled to the alternative relief of Rs.71,00,000 towards damages for breach of suit agreement and Rs.20,00,000 being the return of advance amount?

3. Whether the suit land subjected to any land acquisition proceedings of the Tamil Nadu Housing Board?

4. Whether the plaintiff has failed to perform his part of the contract?

5. Whether Clause 18 of the development agreement dated 10.09.2003 will be applicable?

6. Whether the plaintiff is entitled to claim any damages in spite of his inordinate delay in executing the contract?

7. Whether the plaintiff has any cause of action to file the suit?

8. To what relief, the plaintiff is entitled?”

2. Witnesses have been examined and documents have been marked on the site of both parties. Thereafter, arguments have been heard. After reserving judgment, the learned single judge framed an additional issue, which is hereunder:

“1. Whether the suit is liable to be dismissed, in view of the earlier suit filed by the plaintiff, on the same cause of action, in view of Order II Rule 2 C.P.C.?”

Thereafter, the learned single Judge proceeded to deal with the matter by dismissing the suit on merit. Coming to the additional issue No.1, which was dealt alongwith Issue No.7, the following finding has been given:

“58. The plaintiff had the cause of action to file the suit. But for the same cause of action, he preferred a suit in O.S.No.30 of 2005 before the District Munsif Court, Ambattur. It is not in dispute. Exs.D3 and D4 are the plaint in O.S.No.30 of 2005 and affidavit and petition in I.A.No.144 of 2005 in O.S.No.30 of 2005 respectively filed before the District Munsif Court, Ambattur. Having filed a suit for the sam