A subsequent suit for specific performance is maintainable only if the prior suit does not relinquish that right; withdrawal of the first suit does not bar the right to initiate a subsequent suit.

JUDGMENT

The defendants in a suit for specific performance have come up with the appeal against the concurrent findings rendered by the courts below on the ground that the present suit is hit by the provisions of Order II Rule 2 of the Code of Civil Procedure .

2. The brief facts necessary for the disposal of the appeal are as follows:-

An agreement of sale was entered into between the plaintiff and the defendants on 15.07.2009 fixing 8 months for performance. An extent of 17 ¼ cents of land included in Re-survey No.313/5/2 of Ezhukone Village was the subject matter of the agreement for the sale for a total sale consideration of Rs.12,75,000/-. Defendants 1 and 2 received a sum of Rs.4 lakhs as advance from the plaintiff and thereafter, did not show their willingness to execute the sale deed. Hence, the plaintiff filed O.S.No.568/2009 before the Munsiff Court, Kottarakkara seeking for injunction to restrain the defendants from alienating the plaint scheduled property. Later, on 02.07.2010, the said suit was not pressed. In the meantime, on 19.03.2010, the present suit was filed for specific performance. It appears that, after filing the second suit, the first suit was not pressed by the plaintiff. The defendants entered and contested the suit. The receipt of advance money was admitted. But, it was submitted that the plaintiff has not shown his readiness and willingness to perform the contract. It was also pointed out that the plaintiff abandoned the earlier suit and therefore, the present suit cannot be maintained. On behalf of the plaintiff, PW1 and PW2 were examined and Exts.A1 to A12 documents were marked. On behalf of the defendants, DW1 and DW2 were examined and Ext.B1 was marked. The Trial Court, on an appreciation of the oral and documentary evidence, came to the conclusion that the plaintiff is entitled to succeed and accordingly, decreed the suit and directed defendants 1 and 2 to execute the sale deed in respect of the plaint schedule property on depositing the balance sale consideration by the plaintiff within two months. Aggrieved, the defendants preferred A.S.No.88/2017, which was also dismissed by the Additional District Court-V, Kollam by judgment dated 16.08.2023 and hence, the appeal.

3. On 12.06.2025, this Court admitted the appeal on the following substantial questions of law:-

“i) Whether the First Appellate Court is justified in not accepting the plea of the defendants that the bar under Order II Rule 2 of the Code of Civil Procedure is applicable in this case when the plaintiff intentionally relinquished his claim for specific performance in the earlier suit especially when the earlier suit was filed after the issuance of Lawyer’s notice demanding specific performance of the agreement for sale?

ii) Whether the First Appellate Court is justified in refusing to accept the documents produced by the defendants as additional evidence in order to substantiate their plea of bar under Order II rule 2 of the Code of Civil Procedure ?

iii) Whether the decision of this Honourable Court in Sasidharan Nair vs Kunju Mohammed Unni (reported in 2017 (3) KLT 751 ) and the decision of the Honourable Supreme Court inInbasegaran and another vs Nadarajan (dead) through Lrs (reported in 2014 KHC 4696) are squarely applicable to the present set of facts and circumstances of this case?”

4. Heard Smt.K.G.Bindu, the learned counsel for the appellants and Sri.Alexander George, the learned counsel appearing for the respondent.

5. The learned counsel for the appella