- (1.) Present petition is challenge to the order dated 11.7.2014, whereby application filed by present petitioners under Order 7 Rule 11 CPC, raising the plea of maintainability of civil suit as per provisions of Order 2 Rule 2 CPC, was dismissed.
(2.) Relevant facts of the case that plaintiffs Mahesh Garg and another had filed a suit for permanent injunction on 21.12.2015 on the ground that agreement of sale of suit land was executed on 18.7.2005 and the target date for execution of sale deed was 30.11.2005. The said target date was extended upto 29.12.2005. Suit for permanent injunction was filed on 21.12.2005. An application for amendment of plaint so as to convert the suit for permanent injunction into suit for specific performance was filed on 16.1.2006 and the same was dismissed on 16.8.2010. Thereafter, revision petition was filed before this Court and the same was allowed from the date of application i.e. 16.1.2010. On 17.8.2012, amended plaint was filed. Written statement was filed taking objection that suit is barred.
(3.) Learned senior counsel representing the petitioners took the plea that as the main suit was not maintainable, the same was to be rejected. As per learned counsel for the petitioners, Order 2 Rule 1 CPC requires that plaintiffs to include whole of the claim and where plaintiffs chose to relinquish his claim, the same shall be treated having been given up. Learned counsel for the petitioners mainly submitted that at the time of filing of the suit for permanent injunction, plaintiffs were to file suit for specific performance as defendants had made their intentions clear by the overt act. On this point, reliance was placed upon judgment rendered by the Hon'ble Supreme Court in case M/s Viirgo Industries (Eng.) P. Ltd. V. M/s Venturetech Solutions P. Ltd.,2012 4 CivCC 307(SC), wherein such a view was taken.;