Maintainability of second suit and certainty in sale agreements: Order XXIII Rule 1 did not bar withdrawal-based refiling, but specific performance failed for vagueness.

Order XXIII Rule 1 CPC did not bar a second suit instituted before the earlier suit was withdrawn, and permission to file afresh could be inferred from the withdrawal application, the order, and the parties' conduct. The objection to maintainability therefore failed. The agreement of sale was also held too vague for specific performance because, read as a whole, it did not sufficiently identify the property: no plan was proved, boundaries alone did not make the subject matter certain, and the surrounding circumstances did not cure the uncertainty. The High Court's reversal of the trial court was sustained on both maintainability and merits.

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Issues: (i) Whether Order XXIII Rule 1 of the Code of Civil Procedure barred the second suit filed during the pendency of the earlier suit, and whether permission to institute a fresh suit could be inferred from the withdrawal order and surrounding conduct; (ii) Whether the agreement of sale was too vague and uncertain to be specifically enforced.

Issue (i): Whether Order XXIII Rule 1 of the Code of Civil Procedure barred the second suit filed during the pendency of the earlier suit, and whether permission to institute a fresh suit could be inferred from the withdrawal order and surrounding conduct.

Analysis: The second suit was instituted before the first suit was withdrawn, so the prohibition contemplated by Order XXIII Rule 1 did not operate on its terms. The withdrawal of the first suit was sought because of an objection regarding court fee, and the record showed awareness of the earlier suit, objection only as to costs, and an order allowing withdrawal. On that footing, permission to proceed with a fresh suit could be inferred from the application, the order, and the conduct of the parties.

Conclusion: Order XXIII Rule 1 did not bar the second suit, and the objection to maintainability failed.

Issue (ii): Whether the agreement of sale was too vague and uncertain to be specifically enforced.

Analysis: The agreement had to be read as a whole to ascertain the true intention of the parties. The evidence showed that the appellant was only a tenant in part of the premises, that no plan forming part of the agreement was prepared or proved, and that the description of the property could not be made certain merely from the boundaries. The surrounding circumstances indicated that only the portion occupied by the appellant was intended to be sold, but the document did not clearly and sufficiently identify the subject matter for specific performance.

Conclusion: The agreement was uncertain and vague, so no decree for specific performance could be granted.

Final Conclusion: The appeal failed on both maintainability and merits, and the High Court's reversal of the trial court was sustained.

Ratio Decidendi: Order XXIII Rule 1 of the Code of Civil Procedure does not bar a second suit instituted before the earlier suit is withdrawn, and a contract will not be specifically enforced if, read as a whole and in its surrounding circumstances, the subject matter is not sufficiently certain.

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