COMMON JUDGMENT

The issues involved in both these Second Appeals are common and hence they are taken up together, heard and disposed of through this Common Judgment.

2. The plaintiff is the appellant in both the Second Appeals.

3. The appellant filed O.S. No. 69 of 2003 seeking for the relief of permanent injunction and O.S. No. 25 of 2004 was filed seeking for the relief of specific performance.

4. The case of the plaintiff is that he entered into an agreement of sale with the defendant on 14.12.1998, marked as Ex.A1. As per the sale agreement, the total sale consideration was fixed at Rs.

3,00,000/- and the plaintiff paid a sum of Rs.2,00,000/- as advance on the date of the agreement. The agreement further provided that the balance sale consideration of Rs.1,00,000/- will be paid within 12 months i.e., on or before 14.12.1999 and on receipt of the same, the defendant agreed to register a sale deed in favour of the plaintiff. According to the plaintiff, through Ex.A3 receipt dated 15.9.2001, the defendant received a further sum of Rs.85,000/- and agreed to receive the balance amount of Rs.15,000/- from the plaintiff while executing the sale deed in favour of the plaintiff. The plaintiff claims that by virtue of this receipt, the time was extended without fixing any time period.

5. The grievance of the plaintiff is that he was ready and willing to pay the balance sale consideration and the defendant was evading the execution of the sale deed. Hence, a legal notice was issued on 2.5.2003, marked as Ex.A4, calling upon the defendant to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. On receipt of the same, a reply notice was given on 27.5.2003, marked as Ex.A5, wherein the defendant denied executing any sale agreement in favour of the plaintiff.

6. In the meantime, an attempt was made by the defendant to sell the property to third parties and hence the first suit was filed in O.S. No. 69 of 2003 seeking for the relief of permanent injunction. During the pendency of this suit, the next suit was filed in O.S. No. 25 of 2004 seeking for the relief of specific performance.

7. The defendant took a stand that the plaintiff’s father is a money lender and the brother-in-law of the defendant purchased a lorry under hire purchase and the defendant stood as a surety and had put her signature in blank stamp papers. Inspite of the repayment of the loan amount, the security given by the defendant was not cancelled. Those signed blank documents have been misused and the sale agreement has been fabricated by the plaintiff. The defendant also stoutly denied the execution of a receipt as claimed by the plaintiff. Accordingly, the defendant sought for the dismissal of the suit.

8. The Trial Court decreed both the suits through a Judgment and Decree dated 9.8.2007. It was also confirmed in the appeal through Judgment and Decree dated 30.4.2008. Aggrieved by the same, the defendant filed two Second Appeals before this Court in S.A. Nos. 1296 and 1297 of 2008. This Court through a Common Judgment dated 31.1.2011, remitted the case to the file of the Lower Appellate Court and the operative portion of the Judgment is extracted hereunder:

“20. In the result, both these second appeals are remitted back to the first appellate court with a direction to decide the newly framed issue, viz., "Whether the suit O.S.No.25 of 2004 for specific performance is barred by Order 2 Rule 2 of CPC in view of non obtention of leave to file such a suit, while filing the earlier suit, which was one for bare injunction?" after entertaining oral and documentary evidence relating to it. The first appellate court also shall hear the arguments on both sides comprehensively on all the issues and render its judgment strictly in accordance with Order 41 Rule 31 of CPC and not cryptically as it was done earlier.

21. Accordingly, both the parties are directed to appear before the first appellate court on 24.02.2011 and the appeals shall be disposed