DAULAT RAM Vs. HARI RAM

JUDGEMENT

(1.) THIS regular second appeal has been filed by plaintiff appellant Daulat Ram, against judgments and decrees of the Courts below whereby the suit filed by the plaintiff was dismissed by the trial Court and the appeal filed by him was also dismissed by the learned Addl. Distt. Judge.

(2.) PLAINTIFF had filed a suit for possession by way of specific performance of the agreement to sell dated 12.11.1988. As per the said agreement to sell, the defendant was required to execute the sale deed on 31.1.1989. As per the plaintiff, he was always ready and willing to perform his part of the agreement, whereas defendant had failed to execute the sale deed. Hence, suit for possession by way of specific performance of the said agreement was filed by the plaintiff on 23.12.1989. In the written statement, the defendants took preliminary objection that the suit was barred under Order 2 Rule 2 CPC. It was alleged that previous suit filed by the plaintiff against defendants in respect of the suit land was dismissed on 22.3.1990. It was alleged that the power of attorney executed by defendant No. 2 Smt. Surti in favour of defendant No. 1 Hari Ram, was revoked on 20.1.1989 and due notice of the revocation was also sent and that defendant No. 1 had entered into the agreement to sell in favour of the plaintiff without the permission of the defendant No. 2 Smt. Surti.

(3.) LEARNED counsel for the plaintiff appellant submitted before me that the courts below erred in law in holding that the suit was barred under Order 2 Rule 2 CPC. It was further submitted that previous suit filed by the plaintiff was a suit for mandatory injunction and it was filed on 25.1.1989, whereas the sale deed was to be executed on 31.1.1989. It has been submitted that at the time when the plaintiff filed the previous suit, suit for specific performance was not maintainable and as such present suit for specific performance could not be dismissed on the ground that it was barred under Order 2 Rule 2 CPC. Reliance has been placed on the law laid down by this Court, in the case reported as Sukhdev Mittar v. Rameshwar Dass Gupta, 1999(2) PLJ 208 : 1999(4) RCR(Civil) 196 (P&H). On the other hand, learned counsel appearing for the defendants respondents submitted before me that the courts below rightly found that the suit filed by the plaintiff was barred under Order 2 Rule 2 CPC.