Order II Rule 2 and withdrawal liberty: later specific performance claim barred on same cause, yet fresh suit allowed on same subject matter.

A later suit for specific performance was barred where the earlier injunction suit disclosed the same foundational facts and the claim for specific performance was already available, attracting Order II Rule 2 CPC. However, withdrawal of the earlier suit with liberty to file afresh under Order XXIII Rule 1(3)(b) was held wide enough to permit a fresh suit on the same subject matter, even if it included the specific performance claim. The appellate court therefore set aside dismissal of the plaint and directed the suit to proceed to trial on the remaining issues.

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Issues: (i) Whether the subsequent suit for specific performance was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 in view of the earlier injunction suit. (ii) Whether the liberty to file a fresh suit granted on withdrawal of the earlier suit permitted inclusion of the claim for specific performance.

Issue (i): Whether the subsequent suit for specific performance was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 in view of the earlier injunction suit.

Analysis: The bar under Order II Rule 2 applies where the later suit is founded on the same cause of action and the plaintiff had omitted a relief which ought to have been claimed earlier. Reading the pleadings of both suits, the earlier suit was not a mere claim for possession protection in isolation, but alleged refusal to execute the sale deed and a threat to defeat the agreement to sell by dispossession and alienation. On those pleadings, the cause of action for specific performance was already available when the injunction suit was filed, and the later suit rested on the same foundational facts.

Conclusion: The subsequent suit was barred by Order II Rule 2 of the Code of Civil Procedure, 1908.

Issue (ii): Whether the liberty to file a fresh suit granted on withdrawal of the earlier suit permitted inclusion of the claim for specific performance.

Analysis: Permission to withdraw with liberty to file a fresh suit under Order XXIII Rule 1(3)(b) restores the parties to the position as if the withdrawn suit had not been filed, but the fresh suit must still be in respect of the subject matter of the earlier suit. The expression "subject matter" is wider than cause of action, and the liberty granted was not confined only to the identical relief earlier claimed. In the circumstances, the withdrawn injunction suit could be followed by a fresh suit including the claim for specific performance.

Conclusion: The liberty to file a fresh suit was wide enough to permit the claim for specific performance, and the suit was not defeated on that ground.

Final Conclusion: The appeal succeeded, the dismissal of the plaint was set aside, and the suit was directed to proceed to trial on the remaining issues.

Ratio Decidendi: Where a later suit for specific performance arises from the same foundational cause of action as an earlier injunction suit, Order II Rule 2 bars the later suit unless the later suit is saved by a valid withdrawal with liberty to sue afresh in respect of the same subject matter under Order XXIII Rule 1(3)(b).

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