PICHAI IYER Vs. K SUBRAMANIAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order dated 09.10.2013 in I.A.No.581 of 2011 in O.S.No.167 of 2010 whereby the II Additional District and Sessions Judge, Thanjavur rejected the application filed by the revision petitioners to reject the plaint in O.S.No.167 of 2010.

(2.) The case of the revision petitioners is that the respondent/plaintiff had earlier filed O.S.No.72 of 2009 for a permanent injunction restraining the defendants/petitioners herein from alienating the suit schedule property and to direct the defendants to apply for approval from the Director of Town Planning. Subsequently, the said respondent/plaintiff filed O.S.No.167 of 2010 for specific performance of the agreement of sale dated 11.04.2005. According to the revision petitioners, the cause of action for both the suits is identical and, therefore, the second suit is barred under Order II, Rule 2(3) of Civil Procedure Code because leave was not obtained by the respondent/plaintiff to reserve his right to sue for specific performance.

(3.) On the other hand, the case of the respondent herein is that the respondent/plaintiff was not in a position to sue for specific performance when O.S.No.72 of 2009 was filed in view of the fact that D.T.P. approval was not obtained by the defendants. According to the respondent, a transfer petition was filed so as to hear both suits jointly and the revision petitioners did not object to the transfer on the ground that the second suit is barred by law. Therefore, the respondent states that the trial Court has correctly rejected the application to reject the plaint.