A subsequent suit for specific performance is barred under Order II Rule 2 of the CPC if the plaintiff previously sought permanent injunction on the same cause of action and withdrew it without obtaining leave from the court to sue for specific performance.

PANKAJ JAIN, J.

1 Plaintiff is in second appeal. For convenience, parties hereinafter are referred to by their original position in the suit, i.e. the appellant as plaintiff and respondents as defendants.

2 Plaintiff filed suit seeking decree of possession by way of specific performance of agreement to sell dated 10.10.2000 and in the alternative prayer is for grant of a decree of recovery of Rs.4,73,500/- with the consequential relief of permanent injunction restraining defendants from alienating the suit property.

3 As per plaintiff, defendant No.1 agreed to sell 9K-13M of land in his favour vide written agreement dated 10.10.2000 for a total sale consideration of Rs.3,61,875/-. Rs.3,00,000/- was paid as an earnest money. Parties agreed to get the sale deed executed on or before 10.10.2003 i.e. after three years. Plaintiff claims that he always remained ready and willing to perform his part. Subsequently when plaintiff approached defendant No.1 he came to know that defendant No.1 has already alienated suit land in favour of defendant No.2 & 3 vide two different sale deeds dated 04.07.2003. The Government offices were closed from 10.10.2003 to 12.10.2003 on account of holidays. On 13.10.2003 the plaintiff appeared before the Sub Registrar. Defendant No.1 failed to come present to execute the sale deed. Plaintiff served legal notice calling upon defendant No.1 to execute the sale deed which remained un-responded. The present suit was instituted on 18.12.2003.

4 Suit was contested by defendants No.1 & 2 who filed joint written statements. Execution of agreement to sell by defendant No.1 in favour of plaintiff was denied. It was denied that defendant No.1 received Rs.3,00,000/- as earnest money. Defendant No.1 claimed that he was in need of money. Plaintiff lent him Rs.1,00,000/- and as a security got signatures of defendant No.1 on blank papers. The blank papers have been subsequently converted into agreement to sell. Defendants No.1 & 2 claimed that the land now stands further sold to defendant No.4. Alienation of land by defendant No.1 in favour of defendants No.2 & 3 by way of sale deeds dated 04.07.2003 was admitted. Defendants No.2 & 3 claimed themselves to be Bonafide purchasers.

5 Defendant No.4 was impleaded as party during the pendency of the suit. He claimed to be a bonafide purchaser and sought protection under Section 41 of the Transfer of Property Act, 1882.

6 Suit filed by the plaintiff was put to trial framing following issues :-

“1. Whether defendant No.1 entered into an agreement to sell the suit land on 10.10.2000 for a total sale consideration of Rs.3,61,875/- in favour of plaintiff? OPP

2. Whether defendant No.1 received Rs.3,00,000/- as earnest money on the date of execution for sale? OPP

3. Whether defendant No.1 received Rs.3,00,000/- as compensation from the plaintiff? OPP

4. Whether plaintiff has been ready and willing and is still ready and willing to perform his part of the agreement? OPP

5. Whether plaintiff is entitled for specific performance of the agreement to sell or in the alternative for recovery of Rs.3,61,875/- OPP

6. Whether plaintiff is entitled for permanent injunction as prayed for? OPP

7. Whether suit is not maintainable? OPD

8. Whether suit is bad for non-joinder of necessary parties? OPD

9. Whether the suit is barred by limitation? OPD

10.Whether the plaintiff has concealed the material facts by filing the present suit? OPD

11.Whether the plaintiff has got no cause of action to file the present suit? OPD

12.Relief.”

7 Plaintiff examined Jaswinder Singh, the attesting witness as PW1. Deed Writer Bhajan Singh was examined as PW2. Plaintiff appeared as PW3. Suman Rani, Record Clerk from the office of Sub Registrar was examined as PW-4.

8 The Court of the First Instance while deciding issues No.1 to 6 came to the conclusion that even though the plaintiff claims to have paid huge amount of Rs.3,00,000/- out of total sale consideration of Rs.3,65,000/- yet the date for execution of sale dee