The necessity of filing the original plaint as evidence to support a plea under O.2 R.2 CPC is crucial for establishing maintainability of court actions.

1. This appeal is directed against impugned judgment and decree dated 06/10/2010 passed by the 10th Additional District Judge, Raipur passed in Civil Suit No.3A / 2009, by which the plaintiff's suit has been dismissed as barred under O.2., R.2, CPC.

2. Relevant facts necessary for decision in this appeal are that the plaintiff filed a suit seeking a decree of specific performance of contract on the pleadings inter alia that under an agreement dated 02/12/2005, the defendant agreed to sell the property in dispute for a consideration of Rs.4,00,000/- in favour of the plaintiff and received advance of Rs.51,000/-. According to the plaintiff, even though the plaintiff was ready and willing to perform his part of contract, the defendant was avoiding and despite notice, the defendant did not execute the sale deed, therefore, the plaintiff had to file suit. Pleading was also made that earlier, the plaintiff filed a suit seeking permanent injunction that despite agreement between the parties, the defendants are proceeding to sell the property in dispute. Therefore, the decree, as prayed for, may be granted. During the pendency of the suit, another suit for grant of decree of specific performance had to be brought under the changed circumstances.

3. Respondent / defendants filed a written statement and took a specific plea. founded under the provisions of O.2, R.2 of CPC, regarding maintainability of the suit on the ground that the plaintiff, having omitted to seek relief of specific performance of contract, which he could have sought in the earlier suit, subsequent suit for such relief was barred under the law. Learned Trial Court on the basis of the pleadings of the parties framed issue with regard to maintainability as well as limitation. On the issue of maintainability, learned Trial Court held that the suit was barred as the plaintiff had earlier filed a suit seeking declaration and permanent injunction on the same cause of action as in the present suit. As the plaintiff could have asked for that relief, but he having not sought that relief in the earlier suit, subsequent suit was barred under the law.

4. Learned counsel for the appellant raises a short but pointed submission relying upon the Constitution Bench judgment in the case of Gurbux Singh v. Bhooralal ( AIR 1964 SC 1810 ) that in order to sustain a plea of maintainability of the suit under O.2, R.2 CPC, the defendant was obliged under the law to file and prove in evidence, the plaint of the earlier suit that the cause of action of the earlier suit and subsequent suit being one and the same and on the basis of the said cause of action, the plaintiff though entitled to claim the reliefs, omitted to claim the relief sought subsequently in another suit, so plea of maintainability could not at all be entertained. It is further submitted that the defendant only filed a photo copy of the same, which is not admissible in evidence and learned Trial Court while framing issue with regard to maintainability, proceeded to pass an order and dismissed the suit.

5. On the other hand, learned counsel for the respondent submits that though there is no quarrel with the legal proposition laid down by the Supreme Court in the case of Gurbux Singh (supra), he would submit that there was substantial compliance of legal requirement of leading evidence by filing copy of the plaint as photo copy of the same was filed by the defendant along with their written statement and plaintiff, at no point of time, raised an objection to the admissibility of the said document. He would further submit that in any case, certified copy of the judgment dated 31/08/2009 passed in earlier suit i.e. Civil Suit N0.1