In RSA-5703-2015 (O&M)-PUNJ HC- Causes of action to institute suit for permanent injunction and specific performance of agreement are two different and distinct causes: P&H HC
Justice Tribhuvan Dahiya [01-02-2023]

Read Order: Anil Kumar v. Rajiv Chopra and Another

Monika Rahar

Chandigarh, February 2, 2023: The High Court of Punjab and Haryana has recently held that merely because the plaintiff’s earlier suit for permanent injunction was with respect to the land in question, it cannot be held that it was on the same cause of action on which the subsequent/instant suit for specific performance was filed by him

The bench of Justice Tribhuvan Dahiya held, “... normally causes of action to institute a suit for permanent injunction and specific performance of the agreement, are two different and distinct causes”.

The pleaded facts of the case are that the plaintiff filed a suit for specific performance of the agreement to sell with regard to the suit land. 

The defendant argued that there was collusion between the plaintiff and the second defendant, who were close relatives and that the agreement to sell was completely false and fabricated. It was further averred that the general power of attorney given to the second defendant was to supervise the plot and defend any litigation. 

The second defendant-GPA holder of the first defendant filed a separate written statement and admitted the plaintiff's claim. He, however, submitted that after the receipt of earnest money, the general power of attorney was revoked by the first defendant, therefore, the sale deed could not be executed. 

The trial Court partly decreed the plaintiff's suit with costs, granting the alternative relief of recovery of earnest money against both the defendants along with interest at the rate of 6% per annum. The plaintiff, as well as the first defendant, filed appeals against the judgment and decree of the Trial Court which was affirmed and both the appeals were dismissed. The instant regular second appeal was filed only by the first defendant. 

The question of law before the Court was whether the provision of Order II Rule 2 CPC will bar the filing of the instant suit for specific performance by the plaintiff since his earlier suit for permanent injunction with respect to the suit land was dismissed as withdrawn.

At the very outset, the Court perused the case of Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, (2013) 1 Supreme Court Cases 625 and observed that the cause of action of the earlier suit for a permanent injunction has to furnish the cause to institute the subsequent suit for specific performance also, to hold that the latter is barred under Order II Rule 2 CPC. 

Therefore, the Bench opined in the present case it has to be specifically established that the cause of action upon which the earlier suit was filed by the plaintiff, was the same on which he filed the subsequent/instant suit. However, in the present case, the Court observed that there was nothing on record to establish what was the cause of action of the plaintiff’s earlier suit for a permanent injunction. 

“In the absence of any evidence regarding the previous suit, its plaint, or the order of dismissal being on record, it cannot be said that the foundation to claim the relief of permanent injunction, earlier sought by the plaintiff, is the same as that of the suit in question, later filed by him claiming the relief of specific performance, though both the suits are with respect of the suit land”, the Bench opined. 

Still further, the Court held that it cannot be lost sight of that normally causes of action to institute a suit for permanent injunction and specific performance of the agreement, are two different and distinct causes. 

The Bench also opined that merely because the plaintiff’s earlier suit for permanent injunction was with respect to the land in question, it cannot be held that it was on the same cause of action on which the subsequent/instant suit for specific performance was filed by him. 

At the cost of repetition, it was stated that there was no evidence on record to establish what was the cause based upon which the earlier suit for permanent injunction was filed by the plaintiff, and in the absence whereof no presumption can be raised against him. 

“It cannot be said he could have claimed the relief of specific performance also at the time of filing the earlier suit of permanent injunction, which was withdrawn to file the instant one. Cause of action arises on a set of facts which need to be pleaded in a suit”, the Court held. 

Therefore, the plaintiff’s suit for specific performance was held by the Court to be not barred under Order II Rule 2 CPC. 

In view of the above discussion, the appeal was dismissed.