Bhagawath Devi vs Aswin C. Jain

S. Rajeswaran, J.—The above Civil Revision Petitions are filed against the Orders dated 21.09.2007 and 23.11.2007 passed in I.A. Nos.

11433 of 2007 and 5773 of 2007 in O.S. No. 1959 of 2007 on the file of the VI Assistant Judge, City Civil Court, Chennai. The defendant in

O.S. No. 1959 of 2007 is the revision petitioner in both the revision petitions. As parties and the dispute involved in both the Civil Revision

petitions are one and the same, a common order is being passed, to dispose of the revision petitions.

O.S. No. 1959 of 2007 has been filed by the respondent/plaintiff, for:

a. directing the revision petitioner/defendant for specific performance of the agreement dated 15.02.2006;

b. Permanent injunction restraining the defendant from alienating the suit premises covered in the agreement dated 15.02.2006 to any third parties;

and

c. for other reliefs and cost.

The case of the respondent/plaintiff in O.S. No. 1959 of 2007 is that, he was a lawful tenant of one Mr. K.L.R. Niranjan in respect of a shop

measuring 650 sq.ft. at south-west direction under the name and style of Sri Jeet Enterpirses, at door No. 124, Audiappan Naicken street,

Chennai 79 for the past 19 years. The above said Niranjan sold the suit shop and the abutting building to the revision petitioner/defendant. The

previous landlord also duly informed the respondent/plaintiff about the selling of the above said shop to the revision petitioner/defendant. The

revision petitioner/defendant also sent a letter to the respondent/plaintiff on 30.1.2006 recognising the respondent/plaintiff as her tenant. The

revision petitioner/defendant expressed her intention of demolishing and reconstructing the existing building and in the new portion, the

respondent/plaintiff was offered a shop measuring 650 sq.ft. on a monthly rent of Rs. 4500/-. Hence, the revision petitioner/defendant requested

the respondent/plaintiff to deliver the property to her custody to enable her to carry out the demolition and reconstruction work. The revision

petitioner/defendant executed an agreement dated 15.02.2006 agreeing to complete the construction and handing over the reconstructed shop

within four months from the date of delivery of vacant possession. According to the agreement, the respondent/plaintiff is entitled to have an extent

of 650 sq.ft. of carpet area i.e., 325 sq.ft. in ground floor and 325 sq.ft. in mezzanine floor at south-west direction already occupied by the

respondent/plaintiff for a monthly rent of Rs. 4500/-. Only on the basis of the agreement dated 15.02.2006, the respondent/plaintiff handed over

the possession of the suit property. But, the revision petitioner/defendant breached the terms and conditions of the said agreement and delayed the

handing over of the constructed shop. To protect himself, the respondent/plaintiff earlier filed a suit in O.S. No. 7549 of 2006 on the file of the VI

Assistant City Civil Court. In that suit, an application in I.A. No. 16784 of 2006 was filed seeking the relief of interim injunction, restraining the

revision petitioner/defendant from putting up any construction except as per the provisions contained in the agreement. In that suit, the learned VI

Assistant Civil Judge observed that only a suit for specific performance would lie as per Sec. 41(h) of the Transfer of Property Act and

accordingly, the respondent/plaintiff has filed this suit in O.S. No. 1959 of 2007 for the aforesaid reliefs.

Pending O.S. No. 1959 of 2007, the revision petitioner/defendant filed an application in I.A. No. 11433 of 2007 under Order VII Rule 11

C.P.C. to reject the plaint. In the affidavit filed in support of I.A. No. 11433 of 2007, the revision petitioner/defendant stated that already a suit in

O.S. No. 7549 of 2006 has been filed by the respondent/plaintiff restraining him from putting up any construction in violation of the alleged

agreement dated 15.02.2006. No leave was obtained by the respondent/plaintiff in O.S. No. 7549 of 2006, to sue the relief of specific

performance, in future. In such circumstances, as the cause of action for both the suits is one and the same, the present suit filed in O.S. No. 1959

of 2007 is clearly barred by the provisions of Order II Rule 2 of C.P.C. Hence, the revision petitioner prayed for rejecting the plaint in O.S. No.

1959 of 2007.

This application was resisted by the respondent/plaintiff by filing a counter affidavit stating that the cause of action for filing the present suit is

totally different from the cause of action for filing the earlier suit. According to him, the cause of action in the earlier suit is not for reducing the area

of construction at foundation level. But, the cause of action in the present suit is totally different. After the completion of the construction, since

there is a delay in handing over the possession, the present suit for specific performance was filed. It is further stated that at the time of filing the

earlier suit in O.S. No. 7549 of 2006, he was never denied giving possession. Hence, he prayed for the dismissal of I.A. No. 11433 of 2007. The

trial court by order dated 21.09.2007 dismissed the application and aggrieved by the same, C.R.P.(PD). No. 369 of 2008 has been filed by the

defendant in the suit.

The respondent/plaintiff has also filed an application in I.A. No. 5773 of 2007 under Order XXVI Rule 9 C.P.C. for appointment of an

advocate Commissioner to inspect the suit property to verify whether the revision petitioner/defendant constructed as per the terms of the

agreement dated 15.02.2006 and to measure the extension of completion of the suit shop to fix up a date for delivery of shop to the revision

petitioner/defendant.

In the affidavit filed in support of I.A. No. 5773 of 2007, the respondent/plaintiff stated that to ascertain the extension of completion of the shop

and to fix time for the delivery of the shop, the appointment of an advocate Commissioner is warranted to inspect the suit shop. This application

was resisted by the revision petitioner/defendant by filing a counter statement wherein it is stated that when the suit itself is barred by Order II Rule

2 C.P.C., the respondent/plaintiff is not entitled to file an application for appointment of an advocate Commissioner.

The trial court by order dated 23.9.2007 allowed I.A. No. 5773 of 2007 after finding that the revision petitioner/defendant was not willing to

argue the petition. Aggrieved by the said order, the C.R.P.(PD) No. 2347 of 2008 has been filed by the defendant in the suit.

I have heard the Learned Counsel appearing for the revision petitioner and the Learned Counsel appearing for the respondent. I have also gone

through the documents and judgments filed in support of their submissions.

First, let met consider C.R.P.(PD) No. 369 of 2008 to decide whether the trial court is right in dismissing I.A. No. 11433 of 2007 filed by the

revision petitioner under Order VII Rule 11 C.P.C. to reject the plaint.

Under order II Rule 1 C.P.C., every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in

dispute and to prevent further litigation concerning them. Under Order II Rule 2 (1) C.P.C., every suit shall include the whole of the claim which

the plaintiff is entitled to make in respect of the cause of action, but the plaintiff may relinquish any portion of his claim in order to bring the suit

within the jurisdiction of any court. Under Order II Rule 2(2) C.P.C., where a plaintiff omits to sue in support or intentionally relinquishes any

portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. As per Order II Rule 2(3) C.P.C., a person

entitled to more than one relief in respect of the same cause of action, may sue for all or any of such reliefs, but, if he omits, except with the leave of

the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

In Tamil Nadu Electricity Board and another Vs. The Tamil Nadu Alloy Foundry Co. Ltd., Plots No. 21 and 33, SIPCOT Complex, Hosur

and 3 others, a Division Bench of this Court, held that the plaintiff has a duty to claim for relief arising from the same cause of action and he can

relinquish any portion of the claim in order to bring the suit within the jurisdiction of the court.

In AIR 2001 DEL 107 (Ashok Aggarwal Vs Bhagwan Das Arora), the Delhi High Court held that in a breach of sale agreement, the plaintiff

who is not seeking the relief of specific performance of the said agreement, in the earlier suit, is debarred from filing the second suit, seeking for the

relief of specific performance. The relevant portion reads as under:

It is not in dispute that by the time Suit No. 673/89 came to be filed, four months time for execution of sale deed of property bearing No. CU/1,

Pitampura by the defendants provided in the agreement dated 30th June, 1989 had elapsed and it was thus open to the plaintiff to have filed suit

for specific performance of the said agreement and in alternative for refund of amount of Rs. 2 lakhs paid by way of earnest money as also for

damages against the defendant. However, in said Suit No. 673/89 neither relief for specific performance of said agreement was sought nor any

application filed under Order II Rule 2 (3) seeking leave of the Court to sue for the relief of specific performance afterwards. In this background,

present suit is clearly barred by said Order II Rule 2(3) C.P.C. As urged on behalf of defendant.

In AIR 2001 DEL 220 (Kamal Kishore Saboo Vs N. Hymayun Kamal Hasan Khan), a Division Bench of the Delhi High Court held that

when the earlier suit has been filed only for the purpose of a permanent injunction restraining the defendant from alienating the suit properties and

the averments in the suit disclosed that the defendant was not willing to perform his part of contract, the second suit for specific performance is

maintainable.

In N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, , the Hon''ble Supreme Court held that under

Order VII Rule 11(2) C.P.C., a plaint is liable to be rejected where the suit appears from statement in the plaint to be clearly barred by law.

In 2006(2) C.T.C. 799 (Raptakos Brett and Company Pvt. Ltd. Vs Modi Business Centre (Pvt.) Ltd.), a learned Judge of this Court after

finding that cause of action for specific performance was available to the plaintiff on the date of filing the earlier suit, held that the second suit is

barred by Order II Rule 2 C.P.C. and the plaint is to be rejected. The relevant portion reads as under:

A reading of the causes of action in both the suits would clearly refer to the agreement in question. The contention put forth by the learned

Senior Counsel for the plaintiff that the first suit before the City Civil Court was filed not on the basis of an agreement of the year 1995, but only on

the basis of an agreement of 1999 cannot be countenanced for the simple reason that the cause of action paragraph in the earlier suit would clearly

refer to the agreement of the year 1995. Apart from that, it is an admitted position that the property belonged to the defendant. Without an

agreement entered into between the parties in 1995 as averred in the plaint, the defendant would not have allowed the plaintiff to get into the

property and to raise these two sheds. Even the cause of action paragraph in the earlier suit would speak of the breach of the agreement by the

defendant. Even at the time of the filing of the earlier suit, the very same facts and circumstances were attendant, and the cause of action for filing a

suit for specific performance though not stated in the later point, was very well available. Apart from that, it remains to be stated that the averment

in the present plaint as if the cause of action for filing the instant suit arose on the denial of the agreement by the defendant, was only invented for

the purpose of filing the present suit, and in short, it can even be stated as a camouflage.

Now, it is pertinent to point out that even at the time of the filing of the first suit, there were exchange of notices and police complaints. The

parties were before the police station, and thus, it would be quite clear that there was strained relationship between the parties at that time itself.

The act of the parties even before the filing of the suit, would clearly reveal that there was a breach of the terms in the agreement as understood

between the parties then itself. Even the first plaint seeking declaration of title in respect of two sheds, would speak about the breach of the

contract by the defendant. Not only the averments but also the conduct of the parties that time would clearly speak that there was a breach of the

agreement. It would be quite evident that the plaintiff instead of filing a suit for specific performance on the available cause of action, has filed a suit

seeking a declaratory relief in respect of the two sheds situated on the defendant''s land. At this juncture, this Court is of the considered opinion

that the judgment of the Apex Court relied on by the defendant''s side and reported in (2005) 5 Supreme Court Cases 548 (N.V. Srinivasa

Murthy v. Mariyamma), has got application to the present facts of the case. In the earlier case, there was a permanent injunction asked for, and

pending that suit, now the plaintiff has brought forth the instant suit for specific performance. In the second suit, the plaintiff claims the relief with the

same facts and the same cause of action which were very well available that time, though not specifically stated.

The real test should be whether the causes of action now urged for the present suit, were available at the time of the filing of the first suit or not.

In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non-mentioning

of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of Order 2 Rule 2 of C.P.C.

That apart, the relief what has been now asked for, should have been asked that time itself, but omitted to be done. Allowing the contention put

forth by the learned Senior Counsel for the plaintiff that the defendant should be allowed to file the written statement raising such a defence plea;

that issues have to be framed; that the parties must be allowed to let in evidence on that issues; and that the Court should decide on the same

would be against the provisions under Order 2 Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to

undergo the ordeal of trial. Apart from that, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his

convenience, would also be against the public policy.

From the materials available, it is quite clear that those causes of action were very well available on the stated facts at the time of the filing of

the earlier suit. It remains to be stated that both the causes of action refer only to the agreement in question, and it is not a new agreement entered

into in 1999 as put forth by the plaintiffs side; but, it is only a confirmation of the earlier agreement, as per the plaint averments. Hence, it would be

abundantly clear that cause of action was very well available, but knowingly and deliberately omitted to be mentioned. this Court is of the view that

here is a clear case where Order 2 Rule 2 has got to be applied, and accordingly, the plaint has got to be rejected.

In 2007(4) M.L.J. 1145 = 2007 4 L.W.319 (Kumarayee Ammal Vs M. Ramanathan), this Court held that if the plaintiff in the former suit

failed to avail of the cause of action to claim a larger relief, he cannot be allowed to maintain a second suit for the said relief. The relevant portions

read as under:

Following the above judgment of the Hon''ble Supreme Court, this Court in a case involving facts similar to the facts involved in the case on

hand has held that a subsequent suit is barred under order 2 Rule 2 of the causes of action for filing a suit for specific performance were very well

available at the time of the first suit. In para 12 and 13 of the said judgment in Raptakos Brett and Company Pvt. Ltd. Vs Modi Business Centre

(Pvt.) Ltd. (supra), has held as follows at pp.417 & 418 of M.L.J.

The real test should be whether the causes of action now urged for the present suit, were available at the time of the filing of the first suit or not.

In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. Non mentioning

of certain facts on the cause of action which was very well available, cannot be a reason to come out of the clutches of order 2, Rule 2 of C.P.C.

That apart, the relief what has been now asked for, should have been asked mat time itself, but omitted to be done. Allowing the contention put

forth by the learned Senior counsel for the plaintiff mat the defendant should be allowed to fide the written statement raising such a defence plea;

that issues have to be framed; that the parties must be allowed to let in evidence on that issues; and mat the Court should decide on the same

would be against the provisions under Order 2, Rule 2 of C.P.C. If allowed to be done so, it would be nothing but directing the defendant to

undergo the ordeal of trial. Apart from mat, it would be against the public policy. Allowing a party to ask a relief in piecemeal, according to his

convenience, would also be against the public policy.

From the materials available, it is quite clear that those causes of action were very well available on the stated facts at the time of the filing of

the earlier suit. It remains to be stated that both the causes of action refer only to the agreement in question, and it is not a new agreement entered

into in 1999 as put forth by the plaintiffs side; but, it is only a confirmation of the earlier agreement, as per the plaint averments. Hence, it would be

abundantly clear mat cause of action was very well available, but knowingly and deliberately omitted to be mentioned. this Court is of the view that

here is a clear case where Order 2, Rule 2, has got to be applied, and accordingly, the plaint has got to be rejected.

As found by me in me previous paragraphs of this judgment, the respondent had cause of action to file a comprehensive suit for specific

performance and other reliefs. So, I have no hesitation to hold that the suit in O.S. No. 126 of 2005 is barred under Order 2 Rule 2 C.P.C.

Yet another judgment of the Hon''ble Supreme Court relied on by the Learned Counsel for the petitioners is the one reported in Sidramappa

Vs. Rajashetty and Others, the Hon''ble Supreme Court has held as follows:

The requirement of Order 2, Rule 2, C.P.C. is that every suit should include me whole of the claim which the plaintiff is entitled to make in respect

of a cause of action. ''Cause of action'' means the ''cause of action for which the suit was brought''. It cannot be said that the cause of action on

which the present suit was brought is the same as mat in the previous suit. Cause of action is a cause of action which gives occasion for and forms

the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot

afterwards seek to recover the balance by independent proceedings.

The Learned Counsel for the petitioner placed reliance on a judgment of the Bombay High Court in Gajanan R. Salvi Vs. Satish Shankar

Gupte and Others, In paragraph 6 of the judgment Bombay High Court has held as follows:

The Learned Counsel for the appellant vehemently urged that the present suit of the plaintiffs to claim specific performance of the agreement

coupled with the relief of possession, but the earlier suit was for injunction simplicitor. In this way, it was sought to be urged that plaintiff cannot be

prevented by the bar of Order 2, Rule 2 C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment

because in the eye of law, while considering the bar of Order 2, Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere

comparison of the reliefs of variance in few allegation here or there would have no relevance. On the other hand, in substance, what is to be seen

is, whether the foundation in the previous suit as well as the present suit is one and the same and further what type of rulings would have been there

available for seeking relief in this previous suit that was prayed.

In this regard, time and again, this Court as well as the Apex Court have decided this issue on many occasions. The material principles laid down in

various rulings can be summarised thus-

(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that

which was the foundation for the former suit.

(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.

(3) If the evidence to support the two claims is different then the cause of action are also different.

(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.

(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the

relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the Court to arrive at a conclusion in his favour.

A perusal of all the above judgments of the Hon''ble Supreme Court, this Court and the Bombay High Court would show that the consistent

legal position is that having failed to avail the cause of action for filing a suit for a larger relief such as suit for specific performance and for other

reliefs in the earlier suit one cannot be allowed to maintain a second suit for the said relief as Order 2 Rule 2 is a clear bar. In the instant case, as I

have already held, Order 2 Rule 2 operates against the respondent and as a result, the suit in O.S. No. 126 of 2005 is liable to be rejected and the

order of the lower Court in I.A. No. 39 of 2006 is liable to be set aside.

In 2008(3) M.L.J. 821 (M. Somasundaram and another Vs District Collector cum Accommodation Controller, Chennai and others), this

Court held that in order to attract the bar under Order II Rule 2 C.P.C., the earlier suit should be founded on the same cause of action on which

the subsequent suit is based and if in the earlier suit, the plaintiff has omitted to sue in respect of any portion of his claim, he will not subsequently be

entitled to sue in respect of the portion of his claim which was omitted or relinquished. The relevant portions read as under:

In order to make Order 2, Rule 2 applicable, the defendant must satisfy the following three conditions:

(a) The previous and second suit must arise out of the same cause of action.

(b) Both the suits must be between the same parties; and

(c) The earlier suit must have been decided on merits.

Even when earlier suit O.S. No. 2411 of 2000 was reserved for judgment, judgment could not be pronounced since the plaintiffs have withdrawn

the suit.

In order to attract the bar of Order 2, Rule 2 the earlier suit should be founded on the same cause of action on which the subsequent suit is

based, and if in the earlier suit, the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not

subsequently be entitled to sue in respect of the portion of his claim so omitted or relinquished.

Placing reliance upon Shri Inacio Martins, Deceased through LRs. Vs. Narayan Hari Naik and others, and Union of India Vs H.K. Dhruv,

(2005) 10 SCC 218, Learned Counsel for the plaintiffs submitted that when the earlier suit in respect of same cause of action, was not decided on

merits Order 2 Rule 2 C.P.C. Would not apply. This contention does not merit acceptance. The earlier suit was not decided on merits only

because the plaintiffs have withdrawn the suit. Order 2, Rule 2 C.P.C. is directed in securing to exhaustion of reliefs in respect of a cause of action.

The plaintiff is bound to include his whole claim by asking for all the reliefs in respect of the cause of action on which the suit is brought. The

plaintiffs having omitted to seek for declaration of second plaintiffs title in the earlier suit, the subsequent suit is barred by Order 2, Rule 2 C.P.C.

The plaintiff can seek of the Court under Order 2, Rule 2, sub Rule (3) C.P.C. at any time before the date of decree in the first suit and the

Court would grant leave provided the plaintiff is seeking any relief omitted and not in respect of any portion of the claim which was deliberately

omitted or intentionally relinquished at the time of institution of the first suit. Permission relinquishing the relief and reserving right to file another suit

ought to have obtained in the earlier suit and not in the subsequent suit. As noted earlier in O.S. No. 2411 of 2000 case was reserved for

judgment. Petitions were filed for reopening and recalling P.W. 1 and also to amend the plaint. After so delaying the pronouncement of judgment in

the earlier suit, the present suit was filed on 27.3.2007. After obtaining interim order from the High Court in this suit, O.S. No. 2411 of 2000 was

withdrawn on 7.6.2007. Any amount of mentioning of the earlier suit in the subsequent suit would not amount to granting of permission to file a

fresh suit.

Permission to withdraw the suit ought to have been obtained in the earlier suit by filing application under Order 23, Rule 1(3) C.P.C. When a

suit is withdrawn without leave to file a fresh suit, filing of second suit on the same allegations and for same relief is barred. The consequence of not

obtaining permission to bring a fresh suit at the time, of withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit. To

avoid such objection, plaintiffs appear to have adopted tactics in filing the subsequent suit and thereafter withdrawing the earlier suit. De hors

Order 23 C.P.C. on the ground of public policy and for administration of justice such repeated attempts by litigants filing suit after suit and attempts

to re-agitate the same matter should be prevented.

In Gangabai Ammal Vs. S. Kalyanasundaram, the judgment debtor filed several applications to thwart execution proceedings. Observing that

the respondent should not be allowed to re-agitate the same matter again, S.S. Subramani, J. has observed as under at p.729 of M.L.J.

26..........But he is re-agitating the same issue. It is mot the case that he has got independent right only now. The alleged independent right was

available to him even at the time when he was agitating matter-earlier. Present application is also barred by res judicata. Once it is found that

present application is hopelessly barred and the intention is only to re-agitate the same, Court has to view such conduct seriously and immediately

action will have to be taken to save the precious time of public and Court from being wasted, by not permitting such an application being

presented. Such action must be immediately stopped.

Citing the above mentioned judgments, the Learned Counsel for the revision petitioner contends that, even at the time of filing O.S. No. 7549

of 2006 itself, the cause of action arose for filing the specific performance suit. But, the respondent/plaintiff has only prayed for a decree of

injunction and did not obtain leave to file a fresh suit for the portion of the claim omitted in the earlier suit. Therefore, according to the Learned

Counsel for the revision petitioner, the provisions of Order II Rule 2 C.P.C. will squarely apply and the suit is to be rejected under Order VII Rule

11 C.P.C.

In S. Nazeer Ahmed Vs. State Bank of Mysore and Others, the Hon''ble Supreme Court held that when the earlier suit is for recovery of

money based on minimum term loan transaction simplicitor or in enforcement of hypothecation agreement, the subsequent suit for enforcement of

an Equitable Mortgage is not barred under Order II Rule 2 C.P.C. as causes of action are different, though they might have been a part of the

same transaction and the ultimate relief is for the recovery of term loan.

In The Periyar Nagar Christian Association Vs. Periyar Nagar CSI Church Diocese of Madras and The Church of South India Trust

Association (C.S.I.T.A.), rep. By its President, Mr. Frank Moses Vs Periyar Nagar CSI Church, Diocease of Madras, rep, by its Presbyster-in-

Charge and others), a learned Judge of this Court after finding that there is no final adjudication in previous suit and the earlier and latter suits are

based on separate and distinct causes of action, held that bar under Order II Rule 2 C.P.C. is not applicable.

Citing the above judgments, the Learned Counsel for the respondent/plaintiff submits that the cause of action for both the suits, in the present

case, are different and therefore, the bar contemplated under Order II Rule 2 C.P.C. is not applicable. The Learned Counsel pointed out that the

cause of action in the earlier suit is for not reducing the area of construction at the foundation level and the cause of action for the latter suit is not

handing over possession of the property. Therefore, according to him, the earlier suit and the latter suit are based on separate and different causes

of action and therefore, the trial court has rightly dismissed the application filed by the revision petitioner/defendant to reject the plaint.

A perusal of the plaint filed in O.S. No. 7549 of 2006 reveals that an agreement dated 15.02.2006 was entered into between the revision

petitioner and the respondent. As per the terms and conditions of the above said agreement, the respondent/plaintiff agreed to deliver the

possession of the suit shop in the ground floor to the revision petitioner/defendant on or before 28.02.2006 for reconstruction of the building on

condition that the revision petitioner/defendant shall redeliver the suit shop to the respondent/plaintiff containing an extent of building not less than

650 sq.ft. in the newly constructed building. As per the terms and conditions of the agreement, the revision petitioner/defendant agreed to complete

the construction within four months from the date of delivery of vacant possession of the property and agreed to re-deliver the shop to the

respondent/plaintiff, containing an extent of 650 sq.ft. carpet area, i.e., 325 sq.ft. in the ground floor and 325 sq.ft. in the mezanine floor for a

monthly rent of Rs. 4500/-. Only on the basis of the above agreement, the respondent/plaintiff handed over possession of the suit property to the

revision petitioner/defendant. The revision petitioner/defendant breached the terms and conditions of the said agreement and tried to reduce the

area of construction as 200 sq.ft. at ground floor level and put up a dealer by which he could not run the Grossery shop. Such violation of terms

will cause much loss to his business. He cannot run his Grossery shop in such a small place. There is every possibility of closure of the shop in

breaching the conditions by the revision petitioner/defendant. Therefore, every action of the revision petitioner/defendant is contrary to the terms of

the agreement made at the time of handing over of the possession of the suit property causing much business loss to the respondent/plaintiff. It is

further averred in the plaint that the action of the revision petitioner/defendant is nothing but an illegal removal of the respondent/plaintiff indirectly

by reducing the area of the shop after construction. On the basis of the above pleadings, the respondent/plaintiff filed O.S. No. 7549 of 2006 to

pass a judgment and decree of permanent injunction restraining the revision petitioner/defendant from putting up any construction in violation of the

alleged agreement dated 15.02.2006.

Along with the plaint, an application in I.A. No. 16784 of 2006 has been filed under Order 39 Rule 1 & 2 C.P.C. for temporary injunction.

The trial court by order dated 27.10.2006 dismissed the injunction application after observing that the respondent/plaintiff could act by filing a suit

for specific performance as per clause V contained in the agreement dated 15.02.2006. Only thereafter, the respondent/plaintiff filed the latter suit

in O.S. No. 1959 of 2007 for specific performance of the agreement. The plaint averments in O.S. No. 1959 of 2007 are one and the same as

stated in the plaint in O.S. No. 7549 of 2006 upto the filing of the earlier suit. Thereafter, it was stated in the plaint that on the basis of the order

dated 27.10.2006, made in I.A. No. 16784 of 2006 in O.S. No. 7549 of 2006, the latter suit has been filed for the relief of specific performance.

From the above facts, it is very clear that the cause of action for filing the specific performance suit already arose even at the time of filing the

previous suit in O.S. No. 7549 of 2006. In fact, only on the basis of the observations made by the court in O.S. No. 7549 of 2006 that as per the

clauses contained in the agreement dated 15.02.2006, the relief of specific performance could be asked for, the latter suit has been filed by the

respondent/plaintiff in O.S. No. 1959 of 2007. It is an admitted fact that no appeal has been filed against the order dated 27.10.2006 made in I.A.

No. 16784 of 2006 in O.S. No. 7549 of 2006. It is also an admitted fact that before filing the latter suit in O.S. No. 1959 of 2007, no leave has

been obtained by the respondent/plaintiff from the court where O.S. No. 7549 of 2006 is pending. In such circumstances, having failed to claim

larger relief at the time of filing the earlier suit, and having failed to obtain leave for filing a fresh suit for the omitted claim before filing the latter suit,

it is not open to the respondent/plaintiff to claim the relief of specific performance in the latter suit. As rightly pointed out by the Learned Counsel

for the revision petitioner, the entire facts as narrated above would clearly prove that the provisions of Order II Rule 2 C.P.C. get attracted and

therefore, the suit is barred by Order II Rule 2 C.P.C. But, the trial court has failed to advert to the facts in the proper perspective and wrongly

held that causes of action are different without realising that even at the time of filing the earlier suit, there was a cause of action for the

respondent/plaintiff to claim the relief of specific performance.

Therefore, I am inclined to interfere with the order of the trial court and accordingly, the order dated 21.9.2007 made in I.A. No. 11433 of

2007 is set aside and consequently, I.A. No. 11433 of 2007 is allowed.

In the result, the C.R.P.(PD) No. 369 of 2008 is allowed and the plaint filed in O.S. No. 1959 of 2007 is rejected. No costs. Consequently,

connected miscellaneous petition is also closed. In view of the fact that the plaint itself is rejected in O.S. No. 1959 of 2007, no further order is

necessary in C.R.P.(PD) No. 2347 of 2008 filed by the revision petitioner/defendant challenging the appointment of an advocate Commissioner.

Therefore, C.R.P.(PD) No. 2347 of 2008 is closed as no orders are necessary. No costs.