JOSEY FRANCIS Vs. SUNJOY K BALAN

JUDGEMENT

(1.) The revision is filed by the defendant in O.S. No. 102/2006 on the file of the Sub Court, Kochi, for a decree of specific performance of an agreement of sale. Petitioner/defendant in his written statement, among other contentions, resisted the suit claim as barred under Order II Rule 2 of CPC. Such a contention was raised for the reason that before instituting the present suit, the respondent/plaintiff had instituted another suit basing his claim on the very same agreement of sale for a decree of perpetual prohibitory injunction. After settling of the issues in the suit and when it came up for evidence, the petitioner/defendant moved an application for framing an additional issue whether the suit is maintainable, The learned Sub Judge thereupon framed an additional issue and it was considered as a preliminary issue. After hearing both sides, the learned Sub Judge passed the order impugned in the revision holding that the suit is maintainable. Correctness and propriety of that order is challenged in the revision.

(2.) I heard the counsel for the petitioner. The learned Counsel for the petitioner argued before me that since the plaintiff had omitted to seek for specific performance of the agreement of sale in the earlier suit for injunction, the latter suit filed for specific performance is hit by Order II Rule 2 of CPC, and as such, it is not maintainable. I am afraid the challenge made against the maintainability of the suit for specific performance solely on the basis of the suit for injunction instituted earlier, which was rightly repelled by the learned Sub Judge, is unworthy of any merit. Unless there is identity of cause of action of which the earlier suit was filed and that on which the claim in the latter suit is based, there is no scope for application of bar under Order II Rule 2 of CPC. The earlier suit for prohibitory injunction as seen from the copy of the plaint in that suit, which is produced with the writ petition as ExtP2, indicate the cause of action for filing the suit was the apprehension entertained by the plaintiff that the defendant intended to alienate or encumber the property covered by the agreement of sale. Subsequent suit filed by the plaintiff though based on the agreement of sale is for enforcement of the contract entered by the parties alleging that he is ready and willing to perform his part of the contract and it could not be completed due to the laches and default of the defendant Cause of action for the two suits is entirely different Though in the previous suit to sustain the decree of injunction, plaintiff has traced his right on the basis of the agreement of sale to constitute a bar under Order II Rule 2(3) of CPC (i) it must be established that the second suit was in respect of the same cause of action as that of which the previous suit was based, (ii) in respect of that cause of action the plaintiff is entitled to more than one relief and (iii) that being so, the plaintiff, without leave obtained from the court, omitted to sue for the relief for which the second suit has been filed. Simply because the claim made by the plaintiff in the respective suits was based on the agreement of sale, the cause of action for both the suits are not one and the same. It has to be noted cause of action would be the facts which the plaintiff had alleged to support the right to relief that he claimed in the suit. In the earner suit, it is the apprehension entertained by the plaintiff that the property covered by the agreement of sale would be encumbered or alienated by the defendant gave rise to the cause of action for seeking a relief of decree Of prohibitory injunction. In the latter suit, the cause of action as already indicated is the default of the defendant to perform his part and complete the contract, when the plaintiff continued to be ready and willing for its fulfillment The provision under Order II Rule 2 of CPC has no application when the suits are based on separate and distinct cause of action. The findings entered by the learned Sub Judge on additional issue raised in the suit that the suit is maintainable overruling the objections raised by the defendant that it is hit by Order II Rule 2 of CPC, is proper, valid and correct The revision is devoid of any merit, and it is dismissed.