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107

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

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Reserved on 09.07.2025

Pronounced on : 01.10.2025

Ajit Singh ….Appellant

Versus

Shingara Singh & ors. ….Respondents

CORAM: HON’BLE MR. JUSTICE PANKAJ JAIN

*****

Present:- Mr. Atul Jain, Advocate

for the appellant.

Mr. Arshit Goel, Advocate for

Mr. Vikram Anand, Advocate

for respondent No.4.

*****

PANKAJ JAIN, J.

1 Plaintiff is in second appeal.

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2 Plaintiff filed suit seeking decree of possession by way of

specific performance of agreement to sell dated 10.10.2000 and in the

alternative prayer is for grant of a decree of recovery of Rs.4,73,500/- with

the consequential relief of permanent injunction restraining defendants from

alienating the suit property.

3 As per plaintiff, defendant No.1 agreed to sell 9K-13M of land

in his favour vide written agreement dated 10.10.2000 for a total sale

consideration of Rs.3,61,875/-. Rs.3,00,000/- was paid as an earnest money.

Parties agreed to get the sale deed executed on or before 10.10.2003 i.e. after

three years. Plaintiff claims that he always remained ready and willing to

perform his part. Subsequently when plaintiff approached defendant No.1 he

came to know that defendant No.1 has already alienated suit land in favour of

defendant No.2 & 3 vide two different sale deeds dated 04.07.2003. The

Government offices were closed from 10.10.2003 to 12.10.2003 on account

of holidays. On 13.10.2003 the plaintiff appeared before the Sub Registrar.

Defendant No.1 failed to come present to execute the sale deed. Plaintiff

served legal notice calling upon defendant No.1 to execute the sale deed which

remained un-responded. The present suit was instituted on 18.12.2003.

4 Suit was contested by defendants No.1 & 2 who filed joint

written statements. Execution of agreement to sell by defendant No.1 in

favour of plaintiff was denied. It was denied that defendant No.1 received

Rs.3,00,000/- as earnest money. Defendant No.1 claimed that he was in need

of money. Plaintiff lent him Rs.1,00,000/- and as a security got signatures

of defendant No.1 on blank papers. The blank papers have been subsequently

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converted into agreement to sell. Defendants No.1 & 2 claimed that the land

now stands further sold to defendant No.4. Alienation of land by defendant

No.1 in favour of defendants No.2 & 3 by way of sale deeds dated 04.07.2003

was admitted. Defendants No.2 & 3 claimed themselves to be Bonafide

purchasers.

5 Defendant No.4 was impleaded as party during the pendency of

the suit. He claimed to be a bonafide purchaser and sought protection under

Section 41 of the Transfer of Property Act, 1882.

6 Suit filed by the plaintiff was put to trial framing following

issues :-

“1. Whether defendant No.1 entered into an agreement to sell the suit

land on 10.10.2000 for a total sale consideration of Rs.3,61,875/- in

favour of plaintiff? OPP

2. Whether defendant No.1 received Rs.3,00,000/- as earnest money

on the date of execution for sale? OPP

3. Whether defendant No.1 received Rs.3,00,000/- as compensation

from the plaintiff? OPP

4. Whether plaintiff has been ready and willing and is still ready and

willing to perform his part of the agreement? OPP

5. Whether plaintiff is entitled for specific performance of the

agreement to sell or in the alternative for recovery of Rs.3,61,875/-

OPP

6. Whether plaintiff is entitled for permanent injunction as prayed for?

OPP

7. Whether suit is not maintainable? OPD

8. Whether suit is bad for non-joinder of necessary parties? OPD

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9. Whether the suit is barred by limitation? OPD

10.Whether the plaintiff has concealed the material facts by filing the

present suit? OPD

11.Whether the plaintiff has got no cause of action to file the present

suit? OPD

12.Relief.”

7 Plaintiff examined Jaswinder Singh, the attesting witness as

PW1. Deed Writer Bhajan Singh was examined as PW2. Plaintiff appeared

as PW3. Suman Rani, Record Clerk from the office of Sub Registrar was

examined as PW-4.

8 The Court of the First Instance while deciding issues No.1 to 6

came to the conclusion that even though the plaintiff claims to have paid huge

amount of Rs.3,00,000/- out of total sale consideration of Rs.3,65,000/- yet

the date for execution of sale deed was fixed three years beyond the date of

execution of agreement to sell. The conduct being unnatural fans suspicion.

The agreement to sell being shrouded by mysterious and suspicious

circumstance the plea for specific performance is not sustainable. Trial Court

further noticed that after defendant No.1 executed sale deed in favour of

defendants No.2 & 3 qua the land in question on 04.07.2003, plaintiff

instituted suit for permanent injunction on 16.07.2003 against defendant No.1.

The said suit was withdrawn without seeking liberty to pursue suit for specific

performance. Accordingly, the plaintiff having failed to incorporate relief of

specific performance of agreement to sell dated 10.10.2000 even though he

had a cause to sue for the same in earlier suit, the subsequent suit is bad being

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barred under Order II Rule 2 CPC. The plaintiff having failed to conclude

whole claim in the first suit and there being no liberty to file subsequent suit,

the suit deserves to be dismissed.

9 Unsuccessful plaintiff preferred appeal.

10 The findings recorded by the Trial Court stand reversed by the

Lower Appellate Court holding that there was no plea raised qua suit filed by

the plaintiff being bad under Order II Rule 2 CPC. No issue having been

claimed regarding the suit being barred under Order II Rule 2 CPC, the

findings recorded by the Trial Court cannot be sustained and need to be

reversed.

11 Lower Appellate Court, however, noticed that after execution of

agreement to sell propounded by way of present suit i.e. agreement to sell

dated 10.10.2000, another agreement to sell dated 12.10.2000 was executed

by plaintiff in favour of defendant No.1 pertaining to another piece of land

measuring 8 K for a total sale consideration of Rs.3,25,000/-. Under the said

agreement also plaintiff is claimed to have paid Rs.3,00,000/- and the parties

are claimed to have agreed to get the sale deed executed on 10.10.2003 i.e.

after three years. The Court found that instead of getting the instant

transaction completed by paying the balance amount of Rs.61,879/-, the

plaintiff opted to pay another amount of Rs.3,00,000/- for another agreement

to sell which is highly unnatural conduct. The plaintiff and defendant No.1

being close relatives, the defense raised by defendant regarding the agreement

to sell being loan transaction looks more probable. The Lower Appellate

Court accordingly decreed the suit filed by the plaintiff for alternate relief and

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granted him decree for recovery of Rs.3,00,000/- along with interest @ 9%

per annum from the date of execution of agreement to sell dated 10.10.2000

till the date of actual realization.

12 Counsel for the appellant-plaintiff has assailed the judgment

passed by the Lower Appellate Court. He contends that defendant No.1-

Shingara Singh appeared as DW1. From his testimony it is amply clear that

he admitted execution of agreement to sell. He also explained the reason for

fixing date for sale deed after three years. He admitted that the date of

execution of the sale deed was fixed keeping in view the fact that he wanted

to marry his daughters off before selling the land. He admitted of having

received the earnest money of Rs.3,00,000/-. In these circumstances the

Lower Appellate Court erred in denying main relief of specific performance

to the appellant-plaintiff.

13 Per contra learned counsel for respondent No.4 submits that the

conduct of the parties has been rightly appreciated by the Lower Appellate

Court. It is a case wherein the document procured as a security in a loan

transaction has been misused to manufacture agreement to sell. Defendant

No.1 was in dire need of money. Plaintiff and defendant No.1 being closely

related to each other defendant No.1 trusted plaintiff and agreed to sign blank

papers in lieu of money borrowed by defendant No.1. He further submits that

it has come on record that the plaintiff earlier filed suit for permanent

injunction which was withdrawn without seeking liberty to file suit for

specific performance. The Court of the First Instance rightly dismissed the

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suit filed by the plaintiff being barred under Order II Rule 2 CPC. He thus

submits that the suit needs to be dismissed.

14 I have heard learned counsel for the parties and have gone

through the records of the case.

15 Counsel for the plaintiff-appellant is right in contending that

Shingara Singh while appearing as DW1 admitted execution of the agreement

to sell. He also admitted that it was on his asking that the date of execution

of the sale deed was kept three years beyond the date of agreement to sell. He

admitted that his daughter as well as son-in-law had full knowledge about the

dispute between him and plaintiff. In view thereof, this Court finds that the

Lower Appellate Court has rightly held that the execution of agreement to sell

by defendant No.1 in favour of plaintiff stands proved. However, the counsel

for the appellant has not been able to point out how the plaintiff could maintain

the present suit having earlier filed a suit for permanent injunction on

16.07.2003 and withdrawn without seeking permission to pursue the present

plaint. Plaint of the earlier suit has been tendered in evidence by the plaintiff

himself as Ex.P-13. The statement suffered at the time of withdrawing the

said suit dated 28.04.2004 is Ex.P-8. The precise pleadings raised in the

earlier suit filed seeking decree of permanent injunction Ex.P-13 which read

as under :-

2.That the defendant executed an agreement to sell his land measuring

9Ks-13Ms in favour of the plaintiff on 10.10.2000 situated in the

Revenue estate of village Talwandi Tehsil District Kapurthala and

received Rs.3 1acs as earnest money and the date was fixed for

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executing the sale deed on 10.10.2003, the photo copy of the

agreement is attached herewith.

3. That now the plaintiff came to know that the defendant making

efforts to execute the sale deed of the suit land mentioned in the head

note of the plaint to some other persons which is illegally and wrong.

4. That on 25.06.2003 the defendant threatened the plaintiff that he

will execute the sale deed of the suit land mentioned in the head note

of the plaint to some other persons if the defendant succeeds to do so

then the plaintiff will suffer irreparable loss and injury which cannot

be compensated in shape of money.

5. That the plaintiff along with the respectables of the village went to

the defendant and requested the defendant that he should not execute

sale deed of the suit land to any other person except the plaintiff. The

plaintiff is ready to get to execute the sale deed of the suit land but the

defendant flatly refused to do so.

6. That the cause of action arose to the plaintiff on 10.10.2000 when

the defendant executed the agreement to sell the land mentioned in the

head note of the plaint and then on 25-6-2003 when the defendant

flatly refused to the plaintiff.”

16 From the pleadings raised in the plaint filed in the earlier suit it

is evident that the cause of action pleaded by the plaintiff was refusal by

defendant No.1 to perform his part of agreement to sell dated 10.10.2000.

Meaning thereby at the time the plaintiff filed earlier suit he was in the

knowledge of refusal by defendant No.1 to honour agreement to sell executed

by defendant in his favour. The precise issue regarding maintainability of suit

seeking decree of specific performance in the light of withdrawal of the earlier

suit in similar circumstances was dealt by Supreme Court in the case of Virgo

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Industries (Eng.) (P) Ltd., v. Venturetech Solutions (P) Ltd., (2013) 1 SCC

625 to lay down the following ratio :-

“8. The necessary discussions that will have to follow may be initiated

by extracting the provisions of Order 2 Rule 2 of the CPC:

2. Suit to include the whole claim. (1) Every suit shall include

the whole of the claim which the plaintiff is entitled to make in respect

of the cause of action; but a plaintiff may relinquish any portion of his

claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim-Where a plaintiff omits to sue in

respect of, or intentionally relinquishes, any portion of his claim he

shall not afterwards sue in respect of the portion so omitted or

relinquished.

(3) Omission to sue for one of several reliefs-A person entitled to

more than one relief in respect of the same cause of action may sue

for all or any of such reliefs; but if he omits, except with the leave of

the Court, to sue for all such reliefs, he shall not afterwards sue for

any relief so omitted.

Explanation-For the purposes of this rule an obligation and a

collateral security for its performance and successive claims arising

under the same obligation shall be deemed respectively to constitute

but one cause of action."

9. Order 2 Rule 1 requires every suit to include the whole of the claim

to which the plaintiff is entitled in respect of any particular cause of

action. However, the plaintiff has an option to relinquish any part of

his claim if he chooses to do so. Order 2 Rule 2 contemplates a

situation where a plaintiff omits to sue or intentionally relinquishes

any portion of the claim which he is entitled to make. If the plaintiff

so acts, Order 2 Rule 2 of Civil Procedure Code makes it clear that

he shall not, afterwards, sue for the part or portion of the claim that

has been omitted or relinquished. It must be noticed that Order 2 Rule

2 (2) does not contemplate omission or relinquishment of any portion

of the plaintiff's claim with the leave of the court so as to entitle him

to come back later to seek what has been omitted or relinquished.

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Such leave of the Court is contemplated by Order 2 Rule 2(3) in

situations where a plaintiff being entitled to more than one relief on a

particular cause of action, omits to sue for all such reliefs. In such a

situation, the plaintiff is precluded from bringing a subsequent suit to

claim the relief earlier omitted except in a situation where leave of the

Court had been obtained. It is, therefore, clear from a conjoint

reading of the provisions of Order 2 Rule 2 (2) and (3) of the Civil

Procedure Code that the aforesaid two sub-rules of Order 2 Rule 2

contemplate two different situations, namely, where a plaintiff omits

or relinquishes a part of a claim which he is entitled to make and,

secondly, where the plaintiff omits or relinquishes one out of the

several reliefs that he could have claimed in the suit. It is only in the

latter situations where the plaintiff can file a subsequent suit seeking

the relief omitted in the earlier suit provided that at the time of

omission to claim the particular relief he had obtained leave of the

Court in the first suit.

10. The object behind enactment of Order 2 Rule 2 (2) and (3) of the

Civil Procedure Code is not far to seek. The Rule engrafts a laudable

principle that discourages/prohibits vexing the defendant again and

again by multiple suits except in a situation where one of the several

reliefs, though available to a plaintiff, may not have been claimed for

a good reason. A later suit for such relief is contemplated only with

the leave of the Court which leave, naturally, will be granted upon

due satisfaction and for good and sufficient reasons. The situations

where the bar under Order 2 Rule 2 (2) and (3) will be attracted have

been enumerated in a long line of decisions spread over a century

now. Though each of the aforesaid decisions contain a clear and

precise narration of the principles of law arrived at after a detailed

analysis, the principles laid down in the judgment of the Constitution

Bench of this Court in Gurbux Singh v. Bhooralal, AIR 1964 Supreme

Court 1810 may be usefully recalled below :

"6. In order that a plea of a bar under Order 2, Rule 2 (3), Civil

Procedure Code should succeed the defendant who raises the plea

must make out(1) that the second suit was in respect of the same cause

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of action as that on which the previous suit was based, (2) that in

respect of that cause of action the plaintiff was entitled to more than

one relief,(3) that being thus entitled to more than one relief the

plaintiff, without leave obtained from the Court, omitted to sue for the

relief for which the second suit had been filed. From this analysis it

would be seen that the defendant would have to establish primarily

and to start with, the precise cause of action upon which the previous

suit was filed, for unless there is identity between the cause of action

on which the earlier suit was filed and that on which the claim in the

later suit is based there would be no scope for the application of the

bar."

The above principles have been reiterated in several later judgments

of this Court. Reference by way of illustration may be made to the

judgments Deva Ram & Anr. v. Ishwar Chand & Anr., 1995(3) R.R.R.

717 : 1995 (6) SCC 733 and M/s. Bengal Waterproof Ltd. v. M/s

Bombay Waterproof Manufacturing Co.& Anr., AIR 1997 Supreme

Court 1398.

11. The cardinal requirement for application of the provisions

contained in Order 2 Rule 2(2) and (3), therefore, is that the cause of

action in the later suit must be the same as in the first suit. It will be

wholly unnecessary to enter into any discourse on the true meaning

of the said expression, i.e. cause of action, particularly, in view of the

clear enunciation in a recent judgment of this Court in the Church of

Christ Charitable Trust and Educational Charitable Society,

represented by its Chairman v. Ponniamman Educational Trust

represented by its Chairperson/Managing Trustee, 2012(3) Recent

Apex Judgments (R.A.J.) 600 : 2012(3) RCR (Civil) 811 : JT 2012(6)

SC 149. The huge number of opinions rendered on the issue including

the judicial pronouncements available does not fundamentally detract

from what is stated in Halsbury's Law of England, (4th Edition). The

following reference from the above work would, therefore, be apt for

being extracted hereinbelow:

"Cause of Action" has been defined as meaning simply a

factual situation existence of which entitles one person to obtain from

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the Court a remedy against another person. The phrase has been held

from earliest time to include every fact which is material to be proved

to entitle the plaintiff to succeed, and every fact which a defendant

would have a right to traverse. 'Cause of action' has also been taken

to mean that particular action the part of the defendant which gives

the plaintiff his cause of complaint, or the subject-matter of grievance

founding the action, not merely the technical cause of action."

12. In the instant case though leave to sue for the relief of specific

performance at a later stage was claimed by the plaintiff in C.S. Nos.

831 and 833 of 2005, admittedly, no such leave was granted by the

Court. The question, therefore, that the Court will have to address, in

the present case, is whether the cause of action for the first and second

set of suits is one and the same. Depending on such answer as the

Court may offer the rights of the parties will follow.

13. A reading of the plaints filed in C.S. Nos. 831 and 833 of 2005

show clear averments to the effect that after execution of the

agreements of sale dated 27.7.2005 the plaintiff received a letter

dated 1.8.2005 from the defendant conveying the information that the

Central Excise Department was contemplating issuance of a notice

restraining alienation of the property. The advance amounts paid by

the plaintiff to the defendant by cheques were also returned.

According to the plaintiff it was surprised by the aforesaid stand of

the defendant who had earlier represented that it had clear and

marketable title to the property. In paragraph 5 of the plaint, it is

stated that the encumbrance certificate dated 22.8.2005 made

available to the plaintiff did not inspire confidence of the plaintiff as

the same contained an entry dated 1.10.2004. The plaintiff, therefore,

seriously doubted the claim made by the defendant regarding the

proceedings initiated by the Central Excise Department. In the

aforesaid paragraph of the plaint it was averred by the plaintiff that

the defendant is "finding an excuse to cancel the sale agreement and

sell the property to some other third party." In the aforesaid

paragraph of the plaint, it was further stated that "in this background,

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the plaintiff submits that the defendant is attempting to frustrate the

agreement entered into between the parties."

14. The averments made by the plaintiff in C.S. Nos. 831 and 833 of

2005, particularly the pleadings extracted above, leave no room for

doubt that on the dates when C.S. Nos. 831 and 833 of 2005 were

instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself had

claimed that facts and events have occurred which entitled it to

contend that the defendant had no intention to honour the agreements

dated 27.7.2005. In the aforesaid situation it was open for the plaintiff

to incorporate the relief of specific performance alongwith the relief

of permanent injunction that formed the subject matter of above two

suits. The foundation for the relief of permanent injunction claimed in

the two suits furnished a complete cause of action to the plaintiff in

C.S. Nos. 831 and 833 to also sue for the relief of specific

performance. Yet, the said relief was omitted and no leave in this

regard was obtained or granted by the Court.

15. Furthermore, according to the plaintiff, which fact is also stated

in the plaints filed in C.S. Nos. 831 and 833, on the date when the

aforesaid two suits were filed the relief of specific performance was

premature inasmuch as the time for execution of the sale documents

by the defendant in terms of the agreements dated 27.7.2005 had not

elapsed. According to the plaintiff, it is only after the expiry of the

aforesaid period of time and upon failure of the defendant to execute

the sale deeds despite the legal notice dated 24.2.2006 that the cause

of action to claim the relief of specific performance had accrued. The

above stand of the plaintiff found favour with the High Court. We

disagree. A suit claiming a relief to which the plaintiff may become

entitled at a subsequent point of time, though may be termed as

premature, yet, can not per se be dismissed to be presented on a future

date. There is no universal rule to the above effect inasmuch as "the

question of a suit being premature does not go to the root of the

jurisdiction of the Court" as held by this Court in Vithalbhai (P) Ltd.

v. Union Bank of India, 2005(1) RCR (Rent) 357 : 2005(2) RCR (Civil)

124 : 2005(4) SCC 315.

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16. In the aforesaid case this Court has taken the view that whether a

premature suit is required to be entertained or not is a question of

discretion and unless "there is a mandatory bar created by a statute

which disables the plaintiff from filing the suit on or before a

particular date or the occurrence of a particular event", the Court

must weigh and balance the several competing factors that are

required to be considered including the question as to whether any

useful purpose would be served by dismissing the suit as premature

as the same would entitle the plaintiff to file a fresh suit on a

subsequent date. We may usefully add in this connection that there is

no provision in the Specific Relief Act, 1963 requiring a plaintiff

claiming the relief of specific performance to wait for expiry of the

due date for performance of the agreement in a situation where the

defendant may have made his intentions clear by his overt acts.

17. The learned Single Judge of the High Court had considered, and

very rightly, to be bound to follow an earlier Division Bench order in

the case of R. Vimalchand and M. Ratanchand v. Ramalingam, T.

Srinivasalu & T. Venkatesaperumal (supra) holding that the

provisions of Order 2 Rule 2 of the Civil Procedure Code would be

applicable only when the first suit is disposed of. As in the present

case the second set of suits were filed during the pendency of the

earlier suits, it was held, on the ratio of the aforesaid decision of the

Division Bench of the High Court, that the provisions of Order 2, Rule

2(3) will not be attracted. Judicial discipline required the learned

Single Judge of the High Court to come to the aforesaid conclusion.

However, we are unable to agree with the same in view of the object

behind the enactment of the provisions of Order 2 Rule 2 of the Civil

Procedure Code as already discussed by us, namely, that Order 2

Rule 2 of the Civil Procedure Code seeks to avoid multiplicity of

litigations on same cause of action. If that is the true object of the law,

on which we do not entertain any doubt, the same would not stand

fully subserved by holding that the provisions of Order 2 Rule 2 of the

Civil Procedure Code will apply only if the first suit is disposed of and

not in a situation where the second suit has been filed during the

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pendency of the first suit. Rather, Order 22, Rule 2 of the Civil

Procedure Code will apply to both the aforesaid situations. Though

direct judicial pronouncements on the issue are somewhat scarce, we

find that a similar view had been taken in a decision of the High Court

at Allahabad in Murti v. Bhola Ram, (1894) ILR 16 Allahabad 165

and by the Bombay High Court in Krishnaji v. Raghunath, AIR 1954

Bombay 125.”

17 Applying the aforesaid ratio of law to the facts of the case in hand

this Court finds that the subsequent suit filed by the plaintiff seeking decree

of specific performance was rightly held to be not maintainable being barred

by Order II Rule 2 CPC by the Trial Court. The suit being barred could not

have been decreed. Needless to say the legal issue that goes to the root of the

lis questioning the maintainability of the suit is not dependent upon the

framing of issue. Non framing of issue is immaterial once the parties have led

their respective evidence knowing well the case of rival. Plaintiff who

approaches Court is under legal obligation to show that the suit is maintainable

in law. Duty casted is dehors the defence raised by the defendant in the written

statement. In the present case plaintiff himself brought on record the plaint

filed in the earlier suit as well as the order passed withdrawing

the same without seeking any liberty to pursue subsequent suit

for specific performance. Plaintiff was entitled to sue for specific

performance when he filed earlier suit for injunction. He however omitted to

include the prayer for specific performance in the earlier plaint. There is

an identity of cause of action in both the suits, thus Lower Appellate Court

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erred in reversing the findings recorded by the Trial Court regarding

maintainability of the plaint.

18 However, keeping in view the fact that the defendant has opted

not to file appeal against the judgment and decree passed by the Lower

Appellate Court, decree qua recovery of earnest money of Rs.3,00,000/-

granted by the Lower Appellate Court is ordered to be maintained though for

different reasons.

19 As a sequel of discussion held hereinabove, the present appeal is

without merit and is hereby ordered to be dismissed.

( PANKAJ JAIN )

01.10.2025 JUDGE

Pooja Sharma-I

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No