The maintainability of a suit for specific performance is barred under Order 2 Rule 2 CPC if a plaintiff omits to claim it in an earlier suit concerning the same cause of action.

JUDGMENT :

PANKAJ JAIN, J.

1. Defendant No.4 is in second appeal aggrieved of judgment and decree passed by the Lower Appellate Court decreeing the suit filed by plaintiff reversing the findings recorded by the Trial Court.

2. Plaintiff filed suit seeking decree of possession by way of specific performance of agreement to sell dated 12.10.2000 with an alternate prayer for grant of recovery of Rs.6 lakhs along with consequential relief of permanent injunction restraining the defendants from alienating the suit property.

3. As per the plaintiff, defendant No.1 agreed to sell 8 kanals of land as described in the headnote of the plaint in his favour vide written agreement dated 12.10.2000 for a valuable consideration of Rs.3,25,000/-. Rs.3,00,000/- was paid as earnest money on the date of agreement. Parties agreed to get the sale deed executed on or before 10.10.2003. Plaintiff claims that in order to safeguard his interest qua suit land, he filed civil suit against defendant No.1 seeking decree of permanent injunction restraining him from alienating the suit property on 27.06.2003. Defendant No.1 appeared and placed on record sale deed dated 04.07.2003 executed by him in favour of defendant No.2. The same is illegal, null & void and has no effect on the rights of plaintiff. He claims that from 10.10.2003 till 12.10.2003, the office of the Sub-Registrar was closed on account of holidays. Plaintiff appeared before the office of the Sub Registrar, Kapurthala on 13.10.2003 along with balance sale consideration and expenses. Defendant No.1 failed to turn up for execution of sale deed. Defendants No.2 and 3 had further sold the property in favour of defendant No.4. The same is illegal and has no effect on the rights of plaintiff. Plaintiff claims that he always remained ready and willing to perform his part. The present suit was instituted on 18.12.2003.

4. Suit was contested by defendants No.1 and 2. Preliminary objections was raised with respect to maintainability of the same. Defendant No.1 pleaded that he never executed agreement to sell in favour of plaintiff nor ever received earnest money as claimed. Plaintiff and defendant No.1 are close relatives. Defendant No.1 being in dire need of enough money confided in plaintiff regarding his needs. Plaintiff agreed to advance loan of Rs.1 lakh subject to execution of document as security. Defendant No.1 was made to affix his thumb impressions on a document. Inspite of obtaining thumb impressions the amount promised to be paid by plaintiff was never paid to defendant No.1. Upon protest raised by him, plaintiff told him that documents stand destroyed. It is only after the plaintiff filed the present suit, the defendant No.1 came to know that the same has been misused for creation of agreement to sell in question.

5. Defendants No.3 and 4 opted not to appear despite service.

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

(1) Whether the plaintiff is entitled to the relief of possession through specific performance of Agreement to Sell dated 12.10.2000? OPP

(2) Whether the plaintiff is entitled, in alternative, to recover any money from the defendants, if yes, then what amount and at which rate of interest? OPP

(3) Whether the plaintiff is entitled to the relief of permanent injunction, he has prayed for? OPP

(4) Whether the suit is not maintainable in the present form? OPD

(5) Whether the plaintiff has got no cause of action or locus- standi to file the present suit? OPD

(6) Whether the suit has been filed within the limitation period? OPP

(7) Whether the plain