S KESAVAN Vs. M MOIDEENKUTTY ALIAS BAVA

JUDGEMENT

(1.) THE petitioner/respondent/plaintiff has filed this civil revision petition as against the order dated 27. 06. 2008 in I. A. No. 595 of 2007 in O. S. No. 118 of 2006 passed by the Learned Subordinate Judge, Udhagamandalam in allowing the application filed by the first respondent/petitioner/first defendant under Order 7, Rule 11 read with Order 2, Rule 2 of Civil Procedure Code praying the Court to reject the plaint.

(2.) THE trial Court while passing orders in I. A. No. 595 of 2007 dated 27. 06. 2008 has interalia observed that 'the plaintiff on the same cause of action has filed two suits and during the period of earlier case the plaintiff has known that a suit for specific performance has to be filed and the plaintiff has earlier filed a suit for permanent injunction alone and later has filed the present suit of specific performance and when he has not pressed the earlier suit, the present suit filed by the plaintiff is hit by the provision of Order 2, Rule 2 of Civil Procedure Code and therefore, the application has to be allowed and the plaint has to be rejected and resultantly, allowed the application without costs. '

(3.) THE learned counsel for the revision petitioner/first respondent/plaintiff submits that the suit property comprised in Resurvey No. 509/3 part in Patta No. 32 at Athippaly, of Gudalur Village for an extent of 12 cents including a house bearing No. 12/67e2, has been offered for sale by the first respondent/first defendant for a sale price of Rs. 1,25,000/- and that the revision petitioner/plaintiff has accepted the same and paid ready cash of Rs. 1,10,000 and by entering in to a written advance sale agreement dated 02. 06. 2003 and after the sale agreement on the same date itself the possession of the suit property has been handed over by the first respondent to the revision petitioner etc. , and further on 01. 11. 2006 the second respondent/second defendant visited the suit property along with first respondent/first defendant and the revision petitioner has come to know that the first respondent has been surreptitiously trying to sell the suit property to the second respondent/second defendant and hence, the revision petition has filed a suit O. S. No. 99 of 2006 seeking relief of bare injunction on 06. 11. 2006 and I. A. No. 404 of 2006 has been dismissed by the Learned District Munsif, Gudalur on 27. 11. 2006 for want of pecuniary jurisdiction and proper forum and later on 29. 11. 2006 the revision petition has filed a suit for injunction and specific performance O. S. No. 18 of 2006 on the file of Learned Sub Judge, Udhagamandalam and subsequently the revision petitioner has withdrawn O. S. No. 99 of 2006 filed before the District Munsif Court, Gudalur passed upon the instruction and permission of the said Court and the first respondent/first defendant has filed an I. A. No. 595 of 2007 dated 26. 12. 2007 under Order 2, Rule 2 of Civil Procedure Code stating that the suit should be rejected for the reason that O. S. No. 118 of 2006 is not maintainable and the cause of action in O. S. No. 59 of 2006 on the file of District Munsif Court, Gudalore and the cause of action in O. S. No. 118 of 2006 on the file of Sub Judge, Udhagamandalam are same and in fact, Order 2, Rule 2 is not applicable in as much as the surrounding circumstances and facts in both the suits mentioned supra are different.