A withdrawal of a suit with leave to file a fresh suit negates the bar under Order II Rule 2 CPC, allowing subsequent claims for specific performance based on the same cause of action.

Sathish Ninan, J.

The suit for specific performance, with an alternate prayer for return of advance sale consideration, was dismissed by the trial court. The plaintiff is in appeal.

2. Ext.A1 agreement dated 31.05.2010 was entered into between the plaintiffs and defendants 1 to 3 for the sale of the plaint schedule property to the plaintiff. The total sale consideration fixed was ₹ 135 lakhs. An amount of ₹ 40 lakhs was paid on the date of Ext.A1, towards advance sale consideration. The period fixed for performance was four months. The plaint schedule property belonged jointly to defendants 1 to 4; the first defendant is the mother, and she is entitled to 70%, and defendants 2 to 4, who are her sons, are entitled to 10% shares each. The 4^th defendant was not a party to Ext.A1 agreement. It was the term of the agreement that defendants 1 to 3 would cause a partition deed to be executed along with the 4^th defendant, whereunder, the plaint schedule property would be got allotted exclusively to defendants 1 to 3. According to the plaintiff, defendants 1 to 3 failed to honour the agreement. Though defendants 1 to 4 entered into a partition deed, in contravention of the terms of Ext.A1, a portion of the property was allotted to the 4^th defendant. He conveyed a portion of such property to defendants 5 and 6. The first defendant-mother conveyed her share under the partition to her another son, the 7^th defendant.

3. On 11.11.2010, defendants 2 and 3 conveyed a portion of the property to the plaintiff. On coming to know about the attempt of the defendants to alienate the remaining property in breach of the agreement, the plaintiff filed a suit as OS 677/2010 for a prohibitory injunction not to alienate the property to strangers. Subsequently, after the expiry of the period for performance fixed under Ext.A1, the present suit was filed seeking specific performance, with an alternate prayer for return of the advance sale consideration. It was alleged that, after the conveyances in his favour by defendants 2 and 3, the balance advance consideration with defendants 1 to 3 is ₹ 17 lakhs. The suit OS 677/2010 was withdrawn, with leave of the Court, to prosecute the suit for specific performance.

4. Defendants 1 to 3 contended that the suit is barred under Order II Rule 2 of the Code of Civil Procedure (CPC). It was further contended that the plaintiff was not ready and willing to perform the agreement. The 4^th defendant contended that the agreement for sale would not bind him or his interest over the property. Defendants 5 and 6 claimed to be bona fide purchasers for value.

5. The trial court found that the plaintiff failed to prove his readiness to perform the agreement and held that he is not entitled for the relief of specific performance. Regarding the alternate prayer for return of advance sale consideration, it was found that an amount of ₹ 17 lakhs, being part of the advance sale consideration, is liable to be returned. However, it was held that the suit is barred under Order II Rule 2 CPC. Accordingly, the suit was dismissed.

6. We have heard the learned counsel on either side.

7. Before this Court, the parties confined their arguments to the finding of the trial court on the bar of the suit under Order II Rule 2 CPC.

8. The suit for specific performance is barred under Order II Rule 2 CPC, in the light of the earlier suit for prohibitory injunction, is the contention. Order II Rule 2 reads thus: -

“2. Suit to include the whole claim.-(1) Every suit shall include the wh