SURAJ BHAN Vs. SHIV DUTT

JUDGEMENT

(1.) This revision petition is directed against the order of Additional Civil Judge (Sr.Division) Palwal dated 6.5.2010 by which an application filed by the defendants to decide issue regarding maintainability of the suit as a preliminary issue, has been dismissed.

(2.) Briefly, the plaintiffs filed a suit for possession by way of specific performance of an agreement to sell dated 5.12.2005 in respect of land measuring 16 kanals situated in the revenue estate of village Mandkol, Tehsil Palwal District Faridabad on the ground that the aforesaid land was agreed to be sold by the defendants for a sum of Rs. 13 lacs for which the plaintiffs had given earnest money of Rs. 1,50,000/- at the time of said agreement. The sale deed was to be executed upto 1.3.2006. In the mid of December 2005, the plaintiffs came to know that defendants are negotiating with the strangers and were threatening to alienate the suit land, therefore, a suit for permanent injunction titled as Shiv Dutt and another v. Kewal Singh and others restraining them not to alienate the suit property which has been agreed to be sold to them was filed, in the said suit, written statement was filed by the defendants in which preliminary objection was taken that the suit is not maintainable in the present form; there is no cause of action available to the plaintiff; the suit has been filed with malafide intention unnecessary to harass the defendants and plaintiffs have no locus standi to file the suit. On merits, the agreement has been denied. On the pleadings of the parties, the trial court framed the following issues :

(3.) The defendants filed an application praying for deciding the issue with regard to maintainability of the suit on the ground that it is totally barred under Order 2 Rule 2 CPC as the suit for injunction is still pending before the Court below; it is alleged that the plaintiff deliberately omitted though he had an opportunity to file the suit for specific performance in December 2009, therefore, he had no right to file the present suit. The said application was contested by the plaintiffs which has been dismissed by the learned trial Court observing that in the present case, plaintiffs have already examined two witnesses and at this stage, issue of maintainability cannot be treated as a preliminary issue. It was also observed that the fact whether the plaintiff is debarred to institute this suit on same cause of action, is a mixed question of law and facts which cannot be decided summarily.