D.Y. Chandrachud, Ajay Rastogi,J. - (1.)Leave granted.
(2.)This appeal arises from the judgment of a learned Single Judge dated 6 January, 2017 at the Nagpur Bench of the High Court of Judicature at Bombay in a Second Appeal. The High Court came to the conclusion that the suit for specific performance instituted by the appellant was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 1 since the appellant had instituted an earlier suit for injunction. The courts below have noticed that while instituting the earlier suit, it was in the contemplation of the appellant that a suit for specific performance of the agreement to sell would be instituted, in spite of which no leave of the Court was sought under Order 2 Rule 2(3) of the CPC. This appeal thus arises from the concurrent findings which have been recorded by the Trial Court, the First Appellate Court and by the High Court in Second Appeal holding the suit to be barred.
1 "CPC"

(3.)The facts on which the appeal arises are as follows (parties will be referred to by their descriptions in the suit):
The subject of the dispute is agricultural land bearing Gat.No.111 admeasuring 3 H 05 R situated at Mauje Nayegaon, Taluka Nandura, District Buldhana. On 26 October 1995, the original defendant entered into an agreement to sell in favour of the original plaintiff in respect of the suit land for a total consideration of Rs. 1,80,000. At the time of the agreement to sell, an amount of Rs. 1,50,000 was paid by way of earnest to the defendant. The agreement stipulated that the sale deed would be executed by 25 October 1996 against the payment of the remaining consideration in the amount of Rs. 30,000. On 11 October 1996, a notice was issued by the plaintiff to the defendant for performance of the contract. The plaintiff claims to have been present before the Sub-Registrar on 25 October 1996 for the registration of the sale deed. However, by a reply dated 13 October 1996, the defendant refused to execute the sale deed. In the meantime, it is alleged that on 16 October 1996, the defendant sought to obstruct the possession of the plaintiff over the suit land; the plaintiff claiming to have entered into possession in pursuance of the agreement to sell. A suit for injunction was instituted by the plaintiff, being Regular Civil Suit No. 216 of 1997 before the Civil Judge, Junior Division, Malkapur. Paragraph 2 of the plaint in the earlier suit for injunction contained the following averments:

"The property mentioned in clause 1 of the plaint totally belongs to the defendant for which the defendant had entered into a bargain to sale with the plaintiff on 26.10.95 at a total price of Rs.1,80,000/-. Against the said bargain the defendant had taken on the same day from the plaintiff a sum of Rs.1,50,000/- in cash and gave in writing the bargain letter in favour of the plaintiff. Regarding the remaining amount of Rs.30,000/- it was agreed by the defendant that the same would be paid at the time of execution of sale deed and thus the bargain letter was obtained in writing by the plaintiff from defendant. On 26.10.1995 itself the defendant had handed over possession of the agricultural land to the plaintiff. Since that time the agricultural property is in possession of the plaintiff. Since the date of 26.10.1995 till today all formalities in respect of this land such as cultivation and all agricultural processes are being done by the plaintiff. On the said farm the plaintiff had spent a lot of amount for the agricultural activities. Thereafter several times the plaintiff asked the defendant to execute the sale deed of the said land in favour of the plaintiff. The plaintiff is ready to behave as per the bargain. The plaintiff informed the defendant that by paying the remaining amount of Rs.30,000/- to the defendant the plaintiff is ready to get the sale deed of the said property; but the defendant kept on prevaricating. Hence as decided earlier between the plaintiff and on 11.10.96 the defendant the plaintiff asked by sending a notice to the defendant to execute the sale deed of the said farm on 15.10.96. That registered notice was received by the defendant on 11.10.96; but on 15.10.96 the defendant did not remain present in the office of Sub-Registrar Nandura and did not register the said sale deed in favour of plaintiff when the plaintiff was present there with a cash of Rs.30,000/- to be paid to the defendant. Hence for getting the fulfilment of the agreement took place between plaintiff and the defendant on 26.10.1995 the plaintiff will file a suit in the Court of Hon'ble Civil Judge Senior Division, Khamgaon."