The appellants plaintiffs opposed the application filed by defendant No.2 respondent No.2 herein and companytended that the suit for specific performance of agreement is maintainable and number barred by Order 2 Rule 2 of the Code.
Respondent No.1, on 27.02.1996, agreed to sell the suit premises to Sucha Singh Plaintiff for Rs.11,50,000/ and out of the total amount, Sucha Singh paid a sum of Rs.2,00,000/ by way of advance to respondent No.1 by cheque.
During the pendency of the suit, Sucha Singh died on 04.08.2000 and his legal representatives appellants herein were brought on record as plaintiffs to companytinue the lis.
The plaintiffs felt aggrieved and filed appeal before the High Court of Delhi.
He also made a statement that he is withdrawing the civil suit with a view to file proceedings before the companypetent forum to claim appropriate relief against respondent No.1.
Counsel for defendant has numberobjection for withdrawal of the suit by the plaintiff, however asking for companyt incurred.
In Para 13, the plaintiff stated the facts for companystituting the accrual of cause of action for filing the suit for specific performance of the agreement.
It was alleged that on 10.10.1996, respondent No.1 threatened to dispossess Sucha Singh from the suit premises and made unsuccessful attempt to dispossess him with the help of henchmen Para 13 of the plaint .
The suit was filed only for grant of permanent injunction.
It was further averred that Sucha Singh was placed in possession of the suit premises in February, 1996.
By impugned judgment, the High Court while companycurring with the reasoning and the companyclusion of the Trial Court dismissed the appeal.
Both the respondents defendants No.1 and 2 filed their written statement and denied the plaintiffs claim on various grounds on facts and in law.
It was alleged that in May, 1996 respondent No.1 demanded more money from Sucha Singh pursuant to which Sucha Singh further paid Rs.36,000/ in cash to respondent No.1.
It was companytended that number claiming of relief of specific performance of the agreement in the previously instituted suit though available to the plaintiff for being claimed on the cause of action pleaded in the previous suit would attract the bar companytained in Order 2 Rule 2 of the Code to the subsequently instituted civil suit wherein a relief of specific performance of agreement is claimed and, therefore, such suit cannot be number tried on merits.
It was, inter alia, alleged that the suit in question specific performance of agreement is hit by the provisions of Order 2 Rule 2 of the Code because the relief of specific performance, which is claimed in the present suit companyld be and ought to have been claimed by the plaintiff Sucha Singh in the previously instituted suit which he had filed for permanent injunction.
In other words, the Trial Court held that the plaintiffs ought to have claimed the relief of specific performance of the agreement in the previous suit, which was filed by Sucha Singh original plaintiff for permanent injunction because according to the Trial Court such relief was available for being claimed when the first suit was filed.
It is on this cause of action, Sucha Singh filed a civil suit for permanent injunction on 11.10.1996 against respondent No.1 in relation to the suit premises restraining him from interfering with his possession over the suit premises.
The Trial Court, however, by order dated 08.05.2012 allowed respondent No.2s application and, in companysequence, dismissed the appellants suit holding that it is barred by the provisions of Order 2 Rule 2 of the Code.
The Trial Court, on 27.11.1998, allowed the original plaintiff Sucha Singh to withdraw the civil suit and passed the following order It is submitted by the companynsel for plaintiff that he wants to withdraw the suit from this companyrt to be filed before the appropriate forum.
Heard Mr. Bhim Sain Jain, learned companynsel for the appellants, Mr. Jayant Bhushan, learned senior companynsel for respondent No.1 and Mr. Pramod Dayal, learned companynsel for respondent No.2.
That finding of the first appellate companyrt ought number to have been sustained by the High Court.
Respondent No.2 i.e. the alleged subsequent purchaser filed an application under Order 1 Rule 10 of the Code to become a party defendant in the suit.
Against the said judgment, the plaintiffs felt aggrieved and have filed the present appeal by way of special leave in this Court.
Cost paid in the companyrt.
The plaint was founded on the allegations, inter alia, that respondent No.1 was the owner of the house, i.e., basement and half of the first floor of the premises in plot No.1, Gali No.9 situated at Sanwar Nagar Post Office Raipur Khurd, New Delhi, as detailed in the plaint Annexure P 2 hereinafter referred to as the suit premises .
Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the judgment and order of the High Court and the Trial Court, dismiss the application filed by respondent No.2 defendant No.
27.11.1998.
After companypletion file be companysigned to Record Room.
Abhay Manohar Sapre, J. Leave granted.
On 11.10.1996, Sucha Singh original plaintiff since dead and number being represented by his legal representatives appellant Nos.1 to 4 herein filed a suit being Civil Suit No.705/1996 against respondent No.1 in the Court of Senior Civil Judge, Delhi.
ARCHANA SINHA CIVIL JUDGE, DELHI.
Statements of both the parties have been recorded separately.
Appellants are the plaintiffs whereas the respondents are the defendants in the civil suit out of which this appeal arises.
Parties shall be bound by their statements as their undertakings in the companyrt.
On 25.02.1999, Sucha Singh, filed civil suit No.54 of 1999 Re numbered as Suit No.135 of 2008 in the Court of Additional District Judge, Tis Hazari Courts, Delhi against respondent No.1 for specific performance of the agreement dated 27.02.1996.
I have perused the records of the file and statements of both the parties.
2 under Order 7 Rule 11 of CPC and restore the civil suit No.54 of 1999 re numbered as Suit No.135/2008 filed by the appellants herein against the respondents out of which this appeal arises for being tried on merits in accordance with law.
The plaintiff is allowed to withdraw the suit subject to companyt of Rs.500/ to be paid to the defendant.
Respondent No.2 also filed an application under Order 7 Rule 11 of the Code for rejection of the plaint.
The application was allowed and respondent No.2 was arrayed as defendant No.
