Specific performance suit barred by prior injunction suit under Order 2 Rule 2

The suit for specific performance was found to be barred under Order 2 Rule 2 of the CPC due to the earlier suit for injunction, which had a complete identity of cause of action. The requirement of proving the plaint in the previous suit in evidence was upheld, and despite dismissing the appeal, the Court utilized its power under Article 142 to order the Defendant to refund the amounts paid by the Plaintiff with interest, ensuring complete justice between the parties. The judgment of the High Court was maintained.

---

---

Issues Involved:
1. Bar under Order 2 Rule 2 of the Code of Civil Procedure, 1908 (CPC).
2. Identity of cause of action in earlier and subsequent suits.
3. Requirement of proving the plaint in the previous suit in evidence.
4. Relief under Article 142 of the Constitution for refund of money paid.

Detailed Analysis:

1. Bar under Order 2 Rule 2 of the CPC:
The primary issue was whether the suit for specific performance was barred by Order 2 Rule 2 of the CPC. The courts below concluded that the suit was barred because the Appellant had previously instituted a suit for injunction without seeking leave of the Court under Order 2 Rule 2(3) CPC. The High Court upheld the findings of the Trial Court and the First Appellate Court, which held that the suit for specific performance was barred due to the earlier suit for injunction.

2. Identity of Cause of Action:
The facts revealed that the earlier suit for injunction included a recital of the agreement to sell, the payment of earnest money, and the demand for performance, all of which formed the basis of the subsequent suit for specific performance. The courts found that there was a complete identity of the cause of action between the earlier suit and the subsequent suit. The Plaintiff omitted to sue for specific performance when the earlier suit for injunction was instituted, thus attracting the bar under Order 2 Rule 2(3). The Plaintiff's claim for specific performance was available when the earlier suit was filed, and by not seeking leave of the Court, the Plaintiff was barred from subsequently suing for the omitted relief.

3. Requirement of Proving the Plaint in the Previous Suit in Evidence:
The Appellant argued that for the bar under Order 2 Rule 2 to be attracted, the plaint in the earlier suit must be proved in evidence. The Constitution Bench in Gurbux Singh v. Bhooralal held that the Defendant must file the pleadings in the previous suit in evidence to prove the identity of the cause of action. In the present case, the certified copy of the plaint in the earlier suit was marked as Exhibit 137 without any objection from the Plaintiff. The courts found that the Plaintiff was not deprived of an opportunity to explain the pleadings in the earlier suit, and there was no prejudice caused to the Plaintiff. Hence, the bar under Order 2 Rule 2 was upheld.

4. Relief under Article 142 of the Constitution for Refund of Money Paid:
Despite dismissing the appeal, the Court exercised its power under Article 142 to render complete justice. The Plaintiff had paid Rs. 1,50,000 to the Defendant at the time of the agreement and deposited the balance of Rs. 30,000 before the first appellate court. The Court directed the Defendant to refund the amount of Rs. 1,50,000 with interest at nine percent per annum and the Rs. 30,000 deposited with the Trial Court together with accrued interest, if any. Similar directions were given in the accompanying Civil Appeal, where the Plaintiff had deposited Rs. 1,40,000 as earnest money and Rs. 30,000 before the Trial Court.

Conclusion:
The appeal was dismissed, and the judgment of the High Court was maintained. However, the Court directed the Defendant to refund the amounts paid by the Plaintiff with interest, ensuring complete justice between the parties under Article 142 of the Constitution.

---