RAJIV NARAIN RAINA, J. - (1.) THIS is a revision against the order dated February 7, 2014 passed by the Additional Civil Judge (Sr. Division) Faridkot dismissing the application filed by the defendants under Order 7 Rule 11, CPC read with Order 2 Rule 2, CPC. Some of the petitioners are defendants before the trial Court in a suit for possession by way of specific performance of an agreement to sell dated December 16, 2004. The suit was instituted on May 6, 2008. The agreement was executed by defendant No.1 Bhajno (deceased) in favour of the plaintiffs agreeing to sell land for a sale consideration of Rs.2.45 lacs per acre for a parcel of land measuring 18 kanals as described in the head note to the plaint after having received an advance amount of Rs.1.5 lacs as earnest money with the promise to execute the sale deed on May 20, 2005.
(2.) AFTER the agreement to sell was drawn on December 16, 2004 the plaintiffs after a few days thereof filed a suit for permanent injunction impleading Bhajno praying for restraining her from alienating the suit property. Bhajno appeared and filed written statement contesting the suit. Issues were framed and evidence was led. It was only when the case was fixed for rebuttal evidence that on September 7, 2010, one of the plaintiffs suffered a statement that Bhajno had died but had sold during her lifetime the suit property to a third party and, therefore, no useful purpose would be served to continue with the suit for permanent injunction till the end of the proceedings in the trial. That suit was got dismissed as withdrawn. However, tandem proceedings were instituted against Bhajno etc. on April 5, 2008 when she was alive and before May 20, 2005, the date fixed for execution of the conveyance deed. This suit was based on the agreement to sell dated December 16, 2004 praying for its specific performance. The plaintiffs concluded their evidence and the stage was set for defendants' evidence and arguments on application for leading secondary evidence. The defendants meanwhile filed an application under Order 7 Rule 11 CPC read with Order 2 Rule 2 claiming that the previous suit for permanent injunction was filed on the same cause of action and it was thus barred by law and by the principles of estoppel. It was pleaded that a suit for specific performance can be brought even before the stipulated date of execution of sale deed when circumstances justify. The defendants objected that such pleas were not taken in the written statement filed by the defendants. The defendants in their application under Order 7 Rule 11 read with Order 2 Rule 2 CPC prayed that the suit is barred by law and that the cause of action arose when Bhajno made her intention clear not to perform her part of the contract which led to the filing of the suit for specific performance of the agreement. The cause of action is said to have arisen there and then. Order 2 Rule 2 CPC makes it mandatory for the plaintiffs to include the whole of the claim which they are entitled to make in respect of the cause of action. If they once omit to sue in respect of the claim or intentionally relinquish any portion of their claim, they shall not afterward sue in respect of that claim. This principle is to avoid multiplicity of proceedings. The stipulated date for registration and execution of agreement to sell was May 20, 2005 whereas the previous suit for permanent injunction was filed on December 21, 2004. The present suit was filed on April 5, 2008 i.e. within the period of three years from the date of expiry of the stipulated date and was therefore within the prescribed period of limitation. The cause of action in the previous suit was the apprehension that Bhajno may alienate the suit land to third parties whereas at the time of filing of the second suit, she had already parted with rights to the suit property to someone else. Therefore, the learned trial Judge held and quite rightly that it can no longer be said that the cause of action to file the present suit had arisen to the plaintiffs at the time of filing of the previous suit. In the previous suit, the claim was contested by the defendants. There was nothing on record to suggest that any such objection or plea as taken in the application under Order 7 Rule 11 read with Order 2 Rule 2 CPC was taken by any of them at any stage of the previous suit which was withdrawn by the plaintiffs on coming to know that Bhajno had sold the suit property to third parties during the pendency of the suit. Both the suits remained pending trial in parallel proceedings. The provisions of Order 2 Rule 2 apply only if the first suit is disposed of and the principles would not apply in a situation of this kind when the second suit had been instituted during the pendency of the first suit. For these reasons, the trial Court dismissed the application finding no merit in it and has continued with the trial.
(3.) MR . Bhullar appearing for the petitioner has relied on the decision of the Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd. vs. M/s. Venturetech Solutions P. Ltd., 2013(1) SCC 625 in continuation of reliance placed on the judgment before the trial Court to contend that this was a case meriting interference.The judgment is duly noticed but distinguished by the learned trial Judge as one which is not applicable to the facts of the case. It is urged that a premature suit for specific performance of a contract to sell is maintainable and can be brought before the expiry of the date fixed in the agreement where defendant has made his intention clear by overt acts or by resiling from the agreement and backing out of the deal. However, whether a premature suit is required to be entertained or not is a question of discretion and unless there is a mandatory bar created by statute the suit may not be dismissed. The Supreme Court held that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to await expiry of the due date for performance of the agreement where the defendant has made its intention clear not to execute the sale deed. The Court went further into the question arising under Order 2 Rules 2(2) and 2(3) and found that a suit should include the whole relief but where the civil suit is instituted for permanent injunction restraining a party from alienating the property then during the pendency of the first suit, a suit filed by the aggrieved person for specific performance is maintainable and not hit by the provisions of Order 2 Rule 2(2). The provisions of Order 2 Rule 2 of the CPC will apply only if the first suit is disposed of and would not apply to a situation where the second suit has been filed during the pendency of the first suit. The underlining objective of Order 2 Rule 2 is to avoid multiplicity of proceedings on the same cause of action. If the plaintiffs had no knowledge of sale of property pending the first suit and came to know of it later then the second suit would lie on the same cause of action by introduction of third parties to claim right for specific performance against them and especially when the two proceedings ran parallel for a substantial period. The Supreme Court relied on its earlier constitution bench decision in Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810 and usefully quoted from its text which is reproduced: - "In order that a plea of a bar under O. 2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out(1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar." ;