A plaintiff who omits to seek specific performance in a suit filed on the same cause of action earlier and later withdraws that suit without court leave is precluded from claiming specific performance subsequently.

JUDGMENT :

K. Murali Shankar, J.

The Second Appeal in S.A.(MD)No.519 of 2019 is directed against the judgment and decree made in A.S.No.25 of 2015 dated 11.07.2019 on the file of the Subordinate Court, Sankarankovil, confirming the judgment and decree passed in O.S.No.261 of 2007 dated 19.12.2014 on the file of the Additional District Munsif Court, Sankarankovil.

2. The Second Appeal in S.A.(MD)No.459 of 2021 is directed against the judgment and decree made in A.S.No.109 of 2017 dated 04.01.2021 on the file of the III Additional District Court, Tirunelveli, confirming the judgment and decree passed in O.S.No.47 of 2010 dated 25.07.2017 on the file of the Subordinate Court, Sankarankovil.

3. The appellant in S.A.(MD)No.459 of 2021 is the plaintiff in O.S.No.47 of 2010 and he filed the suit claiming the relief of specific performance of the sale agreement dated 10.12.2006 directing the respondents 1 to 4 / defendants 1 to 4 to receive the balance sale price and execute the sale deed in respect of the suit properties within the time stipulated by the Court.

4. The respondent in S.A.(MD)No.519 of 2019 (fifth respondent in S.A.(MD)No.459 of 2021) as plaintiff filed the other suit in O.S.No.261 of 2007 claiming the relief of declaration that the second schedule of the properties therein belongs to her and for direction to the appellant / defendant to hand over the vacant possession of the suit properties and for mesne profits.

5. It is pertinent to note that trial of both the suits were conducted at different Courts and the respective appeals were also heard and disposed by different Appellate Courts and challenging the judgments and decrees passed by the Appellate Courts, the present Second Appeals came to be filed.

S.A.(MD)No.459 of 2021

6. The case of the plaintiff in O.S.No.47 of 2010, in brief, is as follows:

(a) The suit properties belonged to the first defendant. The plaintiff and the first defendant entered into a sale agreement on 10.12.2006, whereunder, they have fixed the sale consideration at Rs.10 lakhs and on that day itself, the first defendant received a sum of Rs.1 lakh as advance. Prior to that, on 20.06.2002, the first defendant received Rs.70,000/- from the plaintiff by allowing him to reside in a northern portion of the suit properties. The first defendant received Rs.37,100/- on many dates, totalling Rs.2,07,100/- from the plaintiff as advance. The plaintiff has agreed to pay the balance sale consideration of Rs.7,92,900/- to the first defendant within 10.06.2007 and the first defendant had agreed to clear all the encumbrances attached to the suit properties and then to execute the sale deed.

(b) The plaintiff has always been ready and willing to pay the balance sale price and to get the sale deed executed, but the first defendant has been postponing the same on some pretext or the other. In the meantime, the plaintiff came to know that the first defendant had executed a sale deed in favour of the fifth defendant in respect of the second schedule of the suit properties on 04.04.2007. Hence, the plaintiff was constrained to send a legal notice to the first defendant on 06.06.2007 and 23.06.2007 but the same were returned as unserved. The plaintiff has sent a legal notice to the fifth defendant dated 09.06.2007 to the address of the fifth defendant's house and on 12.06.2007 to the address of the fifth defendant's office and the fifth defendant having the received the notice dated 12.06.2007 sent a reply notice on 11.07.2007 with false and untenable averments. The plaintiff sent a rejoinder notice dated 13.08.2007 to the fifth defendant.

(c) The sale deed executed by the first defendant in favour of the fifth defendant is a fraudulent document and is null and void. The fifth defendant is not a bonafide purchaser. Hence, the plaintiff was constrained to file the above suit seeking the relief of specific performance.

7. The first defendant and his legal heirs, the defendants 2 to 4 have remained ex-parte.

8. The defence of the f