The plea of bar under Order II Rule 2 CPC prohibits a second suit for specific performance if based on the same cause of action previously omitted, and the suit is also barred by limitation under Article 54.

ORAL JUDGMENT

The present Regular First Appeal preferred by the plaintiff is directed against the judgment and decree dated 01.10.2024 passed in OS No. 177 of 2019 on the file of the Principal Senior Civil Judge and CJM, Shivamogga, whereby the suit filed by the plaintiff for specific performance of contract came to be dismissed.

Plaint averments

2. The plaintiff contends that the defendants are the owners in possession of the suit schedule property and they offered to sell the same to him. After negotiations, the parties agreed for a sale consideration of Rs.14,62,500/-. On 09.04.2014, the defendants executed a registered agreement of sale in his favour by receiving an advance of Rs.8,00,000/- agreeing to execute a regular sale deed upon payment of balance of Rs. 6,62,500/-

within 3 months after furnishing the original documents of title. It is further averred that at the time of agreement, defendant Nos. 3 to 6 were minors and therefore defendant No. 1 as their natural guardian executed the agreement. The plaintiff asserts that the suit schedule property was represented to be free from encumbrances, loan or liabilities. He has always been ready and willing to perform his part of contract. Despite repeated requests, the defendants kept postponing the execution of the sale deed. Plaintiff caused legal notice dated 18.06.2019 calling upon the defendants to receive the balance consideration and to execute the sale deed. However, in spite of the service of the said notice, the defendants neither complied with the demand nor sent any reply. Hence the suit seeking a decree for specific performance of the agreement of sale deed dated 09.04.2014 by directing the defendants to execute a regular registered sale deed in his favour.

Written statement averments

3. The defendants, on the other hand, denied averments of the plaint. They contended that the plaintiff had earlier instituted OS No. 327 of 2015 on the very same agreement of sale dated 09.04.2014 for permanent injunction which was dismissed for default on 11.06.2018. Therefore, the present suit filed in 2019 on the basis of the same agreement is not maintainable being barred both by limitation and by the provisions of Order II Rule 2 of the CPC . It is their specific case that the alleged agreement of sale is fabricated and created document, brought into existence at the instance of one Mohammed Hafizulla, who is related to the parties. The defendants assert that they had no intention to sell the suit property which is not the exclusive property but a part of a joint family estate. In fact partition suits in OS No. 95 of 2011 and 96 of 2011 were filed and now the matter is before this Court in RFA 1720 of 2017. The defendants further denied having received any earnest money of Rs. 8,00,000/-. They claimed that the plaintiff under the guise of assisting in revenue clearance, obtained certain documents and took them to the Sub Registrar's Office, where, the alleged agreement came into existence. It is specifically averred that the family of the defendants are fully dependent on the suit schedule property for their livelihood.

4. The trial Court, upon consideration answered issue Nos. (1) and (2) in the negative holding that, the plaintiff-PW1 gave contradictory statements at one stage saying that he paid cash 3 to 4 days prior to the agreement, at another stage relying on the cheque in Exhibit P1. The cheque mentioned was never encashed, and the plaintiff admitted that the defendants did not get the amount credited in their account. Th