Dr. Mukundakam Sharma, J.:— This appeal is filed as against the judgment and decree dated 30.9.2003 passed by the Additional District Judge, Delhi in suit No. 56/2002.
2. By the aforesaid judgment and decree, the learned Additional District Judge recorded his findings on the preliminary issue, on the basis of which it was also held that the suit filed by the plaintiff is not maintainable and was accordingly dismissed. The said suit was filed by the appellant/plaintiff as against the respondents, who were arrayed as defendants seeking for a decree for specific performance of the contract. In the plaint filed of the present suit, cause of action for filing the suit has been stated thus:
“12. That the cause of action arose in favour of the Plaintiff and against the Defendants, firstly on 06.05.2002, when the Defendant No. 1 and the Plaintiff mutually and orally agreed (that) the Defendant No. 1 would Sell the suit property to the Plaintiff in lieu of the consideration of Rs. 6,00,000/- and acting on the Agreement to Sell, the Plaintiff purchased the stamp papers worth of Rs. 78,000/-. It further arose on 17.05.2002 when the Plaintiff gave the full consideration to the Defendant No. 1 and it further arose when the Plaintiff was given peaceful possession of the suit property by Defendant No. 1. The cause of action once again arose when the Defendant No. 1 (was) duly signed the Sale Deed in front of attesting witnesses on 17.05.2002 and it further arose when the Defendant No. 1 refused to execute the Sale Deed in front of Sub Registrar-VIII. The cause of action is still continue (ing).”
3. The relief, which is sought for by the plaintiff, is also stated in the prayer portion of the plaint, as follows:
“(a) grant a decree in favour of the Plaintiff and against the Defendants for the specific performance of contract; thereby directing the Defendant No. 1 to execute the Sale Deed in the office of Defendant No. 3 and perform and fulfill her part of the contract for Sale of the Suit Property.
(b) any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the Plaintiff and against the Defendants.”
4. The respondents herein, who were arrayed as defendants, filed their written statement and on the basis of the pleadings of the parties, the following issues were framed:
1 Whether the pltf. entered into the agreement to sell with deft. No. 1 on 28/2/2002 for sale of the suit property bearing No. 11, Ground Floor, measuring area 103 Sq. Yards out of Khasra No. 824 situated in the area of Vill. Chandrawali, East Krishan Ngr, Shahdra, Delhi-51 for a total sale consideration amount of Rs. 6 lakhs and subsequently entered into an oral agreement to sell for the sale of the said suit property on 17.5.2002? OPP.
2 Whether the pltf. has paid to def. No. 1 the total sale consideration amount of Rs. 6 lakhs on 17.5.2002? OPP.
3 Whether the signatures of deft. No. 1 on the sale deed prepared on the stamp paper worth of Rs. 78,000/- was obtained by the pltf. under fraud and threat and by misleading the deft. No. 1 as has been alleged in the W/S? OPD.
4 Whether the deft. No. 1 delivered the peaceful possession of the suit property to the pltf. On 17.5.2002 as alleged by the pltf? OPP.
5 Whether the deft. No 1 has refused to perform her part of the agreement by refusing to execute the Sale deed duly signed by her and the pltf. is entitled to specific performance of the agreement to sell as claimed in the suit? OPP?
6 Whether the pltf. has entered into an agreement to sell with deft. No. 1 for Rs. 36,50,000/- for the portion of ground floor, first floor and second floor upto roof and the said agreement was executed by deft. No. 1 in 2 in parts as alleged in para 1 in reply on merits in the W/S? OPD.
7 Whether this Court has no pecuniary jurisdiction to deal with the matter? OPD.
8 Relief.
5. Subsequently, however, the respondents/defendants filed an application seeking for amendment of the written statement. The prayer for amendment was allowed. In the said amendment, which was sought for and was allowed, the defendants raised a preliminary objection regarding the maintainability of the suit contending, inter alia, that the suit filed by the plaintiff is liable to be rejected under Order 2 Rule 2 of the Code of Civil Procedure as the plaintiff had failed to claim the reliefs claimed in the present suit in its previous suit for permanent injunction in respect of the same cause of action and thus had relinquished the relief claimed in the said suit. The said preliminary objection was allowed to be raised and, therefore, the written statement was amended. The plaintiff also filed an amended replication denying that the suit is liable to be rejected under Order 2 Rule 2 CPC. The plaintiff stated in the amended replication that he had not relinquished the relief claimed in the present suit and the relief claimed earlier was for permanent injunction and the present suit is for relief of specific performance of the agreement to sell and the plaintiff could not have claimed this relief in the earlier suit.
6. On the basis of the aforesaid pleadings of the parties, an additional issue was framed by the trial court on 10.2.2003, which is to the following effect:
“Whether the present suit is liable to be rejected under Order 2 Rule 2 CPC as claimed in preliminary objection No. 8 by defendants No. 1 and 2?”
7. Thereafter the parties led their evidence, during the course of which, the plaintiff examined six witnesses whereas in rebuttal the defendants examined four witnesses. The additional issue framed in the aforesaid suit was ordered to be treated as a preliminary issue.
8. The aforesaid additional issue came up for arguments, when the learned trial court heard the parties and thereafter by his judgment and decree upheld the aforesaid preliminary objection and held that the present suit is barred under the provisions of Order 2 Rule 2 CPC. Accordingly, the said preliminary issue was decided in favour of the defendants 1 and 2 and against the plaintiff by holding that the suit is barred under the said provisions. Consequently, the suit was dismissed as not maintainable. Being aggrieved, the present appeal is filed in this Court.
9. Counsel appearing for the appellant/plaintiff submitted that the suit cannot be said to be barred under the provisions of Order 2 Rule 2 CPC as the earlier suit was a suit only for permanent injunction and not for specific performance of the contract for sale.
10. The learned counsel for the appellant drew our attention to the judgment passed by the trial court in the earlier suit. It was also submitted by the counsel for the appellant that the earlier suit filed by the plaintiff was dismissed by the trial court holding the same to be not maintainable in the eye of law and also as barred under the provisions of Section 41(h) of the Specific Relief Act. It was further held that the plaintiff could have instituted the suit for recovery of money/damages subject to the fulfillment of requirements of law in that regard and also for specific performance thereby compelling the defendant No. 1 to execute the sale deed in his favour but the plaintiff preferred to sue only for injunction and has sought the reliefs which would have been available to him in the aforesaid legal remedies and, therefore, it was held that the suit of the plaintiff is misconceived and the same was dismissed as not maintainable. However, in paragraph 16 of the said judgment, it was observed by the learned trial court as follows:
“This dismissal of the suit does not confer any right on the defendant and the rights of the plaintiff to other legal remedies subject to the fulfillment thereto are not barred by this judgment.”
11. Relying on the aforesaid observations recorded by the learned trial court, counsel for the appellant has submitted that the present suit could not have been dismissed in the learned trial court under the provisions of Order 2 Rule 2 CPC in the light of the aforesaid observations in the earlier suit.
12. Counsel appearing for the respondents, however, submitted that the cause of action of the present suit as also the prayer of the present suit are identical and similar to the cause of action as also the prayer of the earlier suit and, therefore, the present suit was clearly barred under the provisions of Order 2 Rule 2 of Code of Civil Procedure. In support of his contention, the learned counsel relied upon the decisions of this Court in Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and another, (1997) 1 SCC 99 and also on the decision of this Court in Ashok Aggarwal.Plaintiff; v. Bhagwan Das Aroradefendant., AIR 2001 Delhi 107. He has also drawn our attention to the Division Bench decision of this Court in RFA No. 416/2004 titled Shri D.N Sondhi v. The Phosphate Company Ltd. & Ors. decided on 2nd August, 2004.
13. In the light of the aforesaid submissions of the counsel for the parties, we have considered the records of both the suits. The present appeal arises out of suit No. 56/2002 whereas the other suit was registered as suit No. 1767/2002.
14. In order to appreciate the contention of the counsel for the-parties and for easy reference, we have already extracted the cause of action pleaded and the reliefs that are sought for in the present suit. Since one of the contentions is that the causes of action for both the suits and the reliefs as pleaded by the appellant/plaintiff are identical, it would be necessary also to set out hereunder the causes of action and reliefs that were sought for by the plaintiff in the earlier suit:
“That the cause of action arose in the present suit in favour of the plaintiff and against the defendants, firstly arose on 6.5.2002 when the defendant No. 1 and the plaintiff mutually orally agreed that the defendant No. 1 would sell the suit property to the plaintiff in lieu of consideration of Rs. 6,00,000/- (Rupees six lacs only) and acting on the agreement to sell, the plaintiff purchased the stamp duty of Rs. 78,000/- (Rupees seventy eight thousand only).’ It further arose on 17.5.2002 when the plaintiff paid the full consideration amount to the defendant No. 1 and it further arose when the plaintiff was given peaceful possession of the suit property by the defendant No. 1. The cause of action again arose when the defendant No. 1 duly signed the sale deed in front of attesting witnesses and it further arose when the defendant No. 1 refused to execute the sale deed in front of the Sub Registrar-VIII and continued on 20.5.2002 when the defendant No. 1 called the police at the time when the plaintiff was trying to save his possession of the suit property by locking it from inside and the cause of action is still continuing.”
“Prayer:
It is, therefore, in the interest of justice most respectfully prayed that this Hon'ble Court may kindly be pleased to pass a decree of permanent injunction in favour of the plaintiff and against the defendant No. 1 and 2, thereby restraining the defendant No. 1 and 2, their agents, associates, attorneys, servants etc. to not to interfere in the peaceful possession of the plaintiff of the suit property and further directing the defendant No. 1 to execute the sale deed in the office of the Sub-Registrar-VIII {Proforma defendant herein) and on the refusal of the defendant No. 1 the proforma defendant may kindly be directed to execute the sale deed in favour of the plaintiff.
Any other or further order/direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendant No. 1 and 2.”
15. A comparative reading of the cause of action of both the suits and reliefs sought for in both the suits proves and establishes that the causes of action pleaded and the reliefs sought for are almost identical. The earlier suit was filed by the plaintiff on 9.9.2002 whereas the present suit was filed by the plaintiff on 17.7.2002 The earlier suit was dismissed by the trial court by judgment and order dated 1.11.2002 As per the averments made in the plaint of the present suit by the plaintiff, it was alleged that it was mutually agreed between the plaintiff and the defendant No. 1 that the sale deed would be executed on 25.5.2002 and the sale deed might be completed even before 25.5.2002 and a fresh cheque may be issued for the sale consideration. It was also the case of the plaintiff in this plaint that he and the defendant No. 1 orally agreed to execute the sale deed on 17.5.2002 and that the plaintiff gave a bearer cheque in the name of Smt. Bimla Anand, defendant No. 1 dated 15.5.2002 towards the full and final consideration of the sale i.e Rs. 6.00 lacs and the earlier given account payee's cheque was taken back by the plaintiff. It was alleged that the aforesaid cheque was towards full and final consideration amount and was tendered for payment by defendant No. 2 on behalf of defendant No. 1. Certified copy of the judgment has been placed on record, which is exhibited as EX.DW-1/8. The said judgment was delivered by the Civil Judge on 1.11.2002 and the suit filed by the present plaintiff was dismissed. It is an admitted position that no appeal was taken against the aforesaid judgment and decree. It is thus crystal clear from the aforesaid narration of facts that the earlier suit was pending in the trial court when the present suit, out of which this appeal arises, was filed on 17.7.2002 The relief claimed in the present suit is identical and repetition of the relief claimed in the earlier suit. In the said suit, along with the relief of permanent injunction the plaintiff also sought for a relief for further directing defendant No. 1 to execute the sale deed in the office of the Sub Registrar-VIII and on the refusal of defendant No. 1 it was prayed that Sub Registrar-VIII defendant No. 3 should be directed to execute the sale deed in favour of the plaintiff. The same relief is also sought for in the present suit.
16. It was sought to be submitted by the counsel for the appellant that except for the relief prayed for in the suit no. averments were made in the plaint of the earlier suit regarding specific performance of the contract.
17. We are however, unable to agree with the aforesaid contention as in several paragraphs of the plaint of the earlier suit, the plaintiff has referred to the alleged agreement between the parties regarding the sale of the property. In paragraph 14, it is specifically alleged that the plaintiff has acted in good faith and defendant No. 1 with her ulterior motives has misappropriated the consideration amount as well as refusing to execute the sale deed in front of the Sub-Registrar VIII in favour of the plaintiff in respect of the suit property. Similarly in paragraph 7, it was stated that the plaintiff approached the defendant No. 1 so that the sale deed could be duly executed and authenticated by the proforma defendant but defendant No. 1 when reached the office of Sub Registrar-VIII made an excuse that she was not feeling well and had to go back home and would come on some other date to execute the sale deed.
18. The aforesaid statements made in the plaint would clearly prove and establish that the present plaintiff had sought for not only a decree for permanent injunction but also a decree for specific performance of contract by issuing a decree for execution of the sale deed as well. It is already indicated that the present suit was filed during the pendency of the earlier suit. No leave was taken for bringing the suit for the relief of specific performance subsequently under Order 2 Rule 2 CPC. The earlier suit was dismissed on merits holding the aforesaid suit to be not maintainable. In the said suit also no right was reserved by the plaintiff to bring a fresh suit or to maintain the second suit which he had filed. So far the earlier suit was concerned, the appellant did not seek for any reservation or liberty. The said suit was dismissed by the learned trial court on the grounds firstly that the plaintiff had no right in the property and secondly that no relief could be granted to the plaintiff in view of Section 41(h) of the Specific Relief Act.
19. The second suit being suit No. 56/2002 was filed on 17.7.2002 On this date, the first suit for injunction was pending. The plaintiff accepted the dismissal of its prior suit on 1.11.2002 The order dated 1.11.2002 was not challenged and has admittedly attained finality. The plaintiff suppressed the material fact that it had filed suit No. 56/2002 from the court adjudicating on its prior suit on 1.11.2002 The plaintiff also did not seek enforcement of his second prayer on 1.11.2002 It is not open to the plaintiff to contend that his first suit failed only on account of a technical defect and such submission is untenable. The defendant has specifically urged the bar under Order 2 Rule 2 of the Code of Civil Procedure which we are considering. We may observe that it was purely on account of the concealment of the pendency of Suit No. 56/2002 that on 1.11.2002 the learned trial judge made the observations recorded in para 16 of the judgment dated 1.11.2002
20. The stand now taken before us is that in view of the fact that the second suit, namely, suit No. 56/2002 already stood filed and was pending, therefore, the plaintiff did not need to reserve any right or take any kind of permission from the Court for pursuing the same. The said contention is misconceived inasmuch as we are concerned with the maintainability of the second suit.
21. We have been taken through the records of the case and have given our considered thought to the submissions urged before us. Comparison of the reliefs sought in the two plaints make it crystal clear that they are based on the same cause of action. The reliefs sought for in the second suit were available and ought to have been sought in the earlier suit. There is no semblance of distinction between bundle of facts which are the basis of the reliefs sought in the two plaints. The second suit was filed during the pendency of the first suit. Therefore, the present suit for the same relief was barred under Order 2 Rule 2 of the Code of Civil Procedure on the date of its institution. The plaintiff was apparently precluded from bringing such suit as the reliefs sought for in the present suit are barred under the provisions of Order 2 Rule 2 of Code of Civil Procedure.
22. In coming to the aforesaid conclusion, we also derive support from the decision of the Supreme Court in Bengal Waterproof Limited (supra). It was held in the said decision by the Supreme Court that if it is shown by the defendants for supporting their plea of bar of Order 2, Rule 2(3) that the second suit of the plaintiff filed in 1982 is based on the same cause of action on which its earlier suit of 1980 was based, in that event the suit would be barred under the provisions of Order 2 Rule 2 CPC. It was also held that even if it had not obtained leave of the court, as required under Order 2 Rule 2 CPC, it cannot sue for that relief in the second suit. Reference may also be made to the decision of the Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 wherein it is held that in order that a plea of bar under Order 2, Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. In view of the aforesaid analysis it was held by the Supreme Court that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of bar.
23. We may also appropriately refer to a Division Bench decision of this Court in Kamal Kishore Sabu v. Nawab Zada Himayu Kamal Hassan Khan, AIR 2001 Delhi 220, delivered in similar facts. The circumstances did not change between the first suit and the second suit. In fact, the second suit therein was also based on some averments as the first suit. In this case, it has been held that the appellant has chosen to file the suit claiming relief of permanent injunction only when he could have also claimed the relief of specific performance. Once he had omitted to claim the relief of specific performance, the second suit for this relief on the same facts was clearly not maintainable.
24. In our considered opinion the ratio of the aforesaid decision is also applicable to facts and circumstances of the present case as it is already established that the cause of action as also the prayers' of both the suits are identical. We are of the considered opinion that the decision of this Court in Ashok Aggarwal (supra) particularly the findings recorded in paragraph 4 in the said case are also applicable to the facts and circumstances of the present case also.
25. In the light of the aforesaid conclusions, we are of the considered opinion that the learned trial court was justified in holding that the present suit is barred under the provisions of Order 2 Rule 2 CPC.
26. It would be appropriate to observe that the plaintiff has indulged in judicial adventurism and has attempted to avoid payment of court fees in filing first the suit for injunctions and then, after seeing the defence and objections of the defendants, filing the second suit. In our view, the plaintiff is himself responsible for the situation he has landed in and cannot avoid paying such price for his adventurism.
27. We find no infirmity in the aforesaid judgment and order. We also find no merit in the present appeal and the same is dismissed with costs.