VIKAS AHUJA Vs. JAIPRAKASH JOSHI AND ORS.

JUDGEMENT

(1.) This appeal is directed against impugned judgment and decree dated 06/10/2010 passed by the 10th Additional District Judge, Raipur in Civil Suit No.3A/2009, by which, the plaintiff's suit has been dismissed as barred under Order 2, Rule 2 CPC.

(2.) Relevant facts necessary for decision in this appeal are that the plaintiff filed a suit seeking a decree of specific performance of contract on the pleadings inter alia that under an agreement dated 02/12/2005, the defendant agreed to sell the property in dispute for a consideration of Rs. 4,00,000.00 in favour of the plaintiff and received advance of Rs. 51,000.00. According to the plaintiff, even though the plaintiff was ready and willing to perform his part of contract, the defendant was avoiding and despite notice, the defendant did not execute the sale deed, therefore, the plaintiff had to file suit. Pleading was also made that earlier, the plaintiff filed a suit seeking permanent injunction that despite agreement between the parties, the defendants are proceeding to sell the property in dispute. Therefore, the decree, as prayed for, may be granted. During the pendency of the suit, another suit for grant of decree of specific performance had to be brought under the changed circumstances.

(3.) Respondent / defendants filed a written statement and took a specific plea, founded under the provisions of Order 2, Rule 2 of CPC, regarding maintainability of the suit on the ground that the plaintiff, having omitted to seek relief of specific performance of contract, which he could have sought in the earlier suit, subsequent suit for such relief was barred under the law. Learned Trial Court on the basis of the pleadings of the parties framed issue with regard to maintainability as well as limitation. On the issue of maintainability, learned Trial Court held that the suit was barred as the plaintiff had earlier filed a suit seeking declaration and permanent injunction on the same cause of action as in the present suit. As the plaintiff could have asked for that relief, but he having not sought that relief in the earlier suit, subsequent suit was barred under the law.