Specific performance suit not barred; withdrawal under Order 23 Rule 1(3) saves claim from Order 2 Rule 2 CPC

SC held that the plaintiff's subsequent suit for specific performance was not barred by Order 2 Rule 2 CPC. The earlier suit was for permanent injunction, and before withdrawal the plaintiff expressly stated that he intended to initiate appropriate proceedings regarding the same subject matter. The trial court permitted withdrawal, which the SC held satisfied Order 23 Rule 1(3), thereby preserving the right to file a fresh suit for specific performance. Consequently, the trial court and HC erred in allowing the subsequent purchaser's application under Order 7 Rule 11 and dismissing the suit. The appeal was allowed and the specific performance suit restored for trial.

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Issues Involved:
1. Whether the suit for specific performance of the agreement is barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908.
2. Whether the plaintiff was entitled to file a fresh suit for specific performance after withdrawing the previous suit for permanent injunction without explicit permission.

Detailed Analysis:

1. Bar Under Order 2 Rule 2 of the Code of Civil Procedure, 1908:
The central issue was whether the suit for specific performance was barred by the provisions of Order 2 Rule 2 of the Code. The Trial Court and the High Court had dismissed the suit under this provision, holding that the plaintiff should have claimed the relief of specific performance in the previous suit for permanent injunction.

The Supreme Court disagreed with this interpretation. It clarified that Order 2 Rule 2(1) mandates that every suit must include the whole of the claim based on the cause of action pleaded. However, Order 2 Rule 2(2) bars subsequent suits for omitted or relinquished claims only if those claims were available and should have been included in the initial suit based on the same cause of action.

The Court noted that the causes of action for a permanent injunction and specific performance are distinct and arise under different circumstances. A permanent injunction is sought to prevent dispossession, while specific performance is sought to enforce a contractual obligation. These claims are governed by different articles of the Limitation Act and have separate factual bases. Therefore, the relief of specific performance could not have been claimed in the initial suit for permanent injunction.

The Court cited the precedent set in Rathnavathi & Another vs. Kavita Ganashamdas (2015) and concluded that the bar under Order 2 Rule 2 did not apply in this case. The reliefs of permanent injunction and specific performance are not identical and cannot be claimed together based on a single cause of action.

2. Filing Fresh Suit Without Explicit Permission:
The second issue was whether the plaintiff could file a fresh suit for specific performance after withdrawing the previous suit for permanent injunction without explicit permission from the court.

The Supreme Court referred to the case of Gurinderpal vs. Jagmittar Singh (2004), where it was held that the absence of explicit permission to file a fresh suit does not necessarily bar the subsequent suit under Order 2 Rule 2. The Court emphasized that the plaintiff's statement in the previous suit, indicating the intention to withdraw and file appropriate proceedings, was sufficient to satisfy the requirements of Order 23 Rule 1(3) of the Code.

The Court found that the original plaintiff had clearly stated his intention to withdraw the suit to file appropriate proceedings, and the Trial Court had recorded this statement while allowing the withdrawal. This was deemed sufficient to permit filing a fresh suit for specific performance.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgments of the Trial Court and the High Court, and dismissed the application under Order 7 Rule 11 of the Code. The civil suit for specific performance was held maintainable and restored for trial on merits. The Trial Court was directed to expedite the trial and decide the suit within one year without being influenced by the Supreme Court's observations.

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