CR No.3853 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3853 of 2010 (O&M) Date of Decision: 15.7.2010 Suraj Bhan and another ..Petitioners. Vs. Shiv Dutt and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Adarsh Jain, Advocate for the petitioners. RAKESH KUMAR JAIN, J. This revision petition is directed against the order of Additional Civil Judge (Sr.Division) Palwal dated 6.5.2010 by which an application filed by the defendants to decide issue regarding maintainability of the suit as a preliminary issue, has been dismissed. Briefly, the plaintiffs filed a suit for possession by way of specific performance of an agreement to sell dated 5.12.2005 in respect of land measuring 16 kanals situated in the revenue estate of village Mandkol, Tehsil Palwal District Faridabad on the ground that the aforesaid land was agreed to be sold by the defendants for a sum of Rs.13 lacs for which the plaintiffs had given earnest money of Rs.1,50,000/- at the time of said agreement. The sale deed was to be executed upto 1.3.2006. In the mid of December 2005, the plaintiffs came to know that defendants are negotiating with the strangers and were threatening to alienate the suit land, therefore, a CR No.3853 of 2010 (O&M) -2- suit for permanent injunction titled as Shiv Dutt and another Vs. Kewal Singh and others restraining them not to alienate the suit property which has been agreed to be sold to them was filed, in the said suit, written statement was filed by the defendants in which preliminary objection was taken that the suit is not maintainable in the present form; there is no cause of action available to the plaintiff; the suit has been filed with malafide intention unnecessary to harass the defendants and plaintiffs have no locus standi to file the suit. On merits, the agreement has been denied. On the pleadings of the parties, the trial court framed the following issues: (i)Whether the defendant entered into an agreement to sell the suit property on dated 5.12.2005 to the plaintiff? OPP. (ii)Whether the plaintiff was and is still ready and willing to perform his part of agreement? OPP. (iii)Whether the plaintiff is entitled to the specific performance of agreement dated 5.12.2005? OPD. (iv)Whether suit of the plaintiff is not maintainable in the present form? OPD. (v)Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD. (vi)Whether the plaintiff has concealed the material facts from the Court? OPD. (vii)Relief. The defendants filed an application praying for deciding the issue with regard to maintainability of the suit on the ground that it is totally barred under Order 2 Rule 2 CPC as the suit for injunction is still pending before the Court below; it is alleged that the plaintiff deliberately omitted though he had an opportunity to file the suit for specific performance in December 2009, therefore, he had no right to file the present suit. The said application was contested by the plaintiffs which has been dismissed by the CR No.3853 of 2010 (O&M) -3- learned trial Court observing that in the present case, plaintiffs have already examined two witnesses and at this stage, issue of maintainability cannot be treated as a preliminary issue. It was also observed that the fact whether the plaintiff is debarred to institute this suit on same cause of action, is a mixed question of law and facts which cannot be decided summarily. Aggrieved against the aforesaid order, the defendants have filed this revision petition in which learned counsel for the petitioner has vehemently argued that suit of the plaintiff was barred under Order 2 Rule 2 CPC and as per Order 14 Rule 2(2) issue No.4 should have been treated by the learned Court below as a preliminary issue as it goes to the root of the case. It is submitted that finding about the maintainability of the suit under Order 2 Rule 2 CPC is a finding of law, therefore, in terms of Order 14 Rule 2(2) which provides that the Court has a jurisdiction to dispose of issue of law as a preliminary issue if it bars the subsequent suit. I have heard counsel for the petitioner and perused the record with his assistance. Before adverting to the contention raised by the counsel for the petitioner, it would be appropriate to refer to the relevant provisions of CPC: Order 2 Rule 2(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.” Order 14 Rule 2(2) “Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be CR No.3853 of 2010 (O&M) -4- disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” Order 2 Rule 2 CPC is a part of frame of suit wherein it is provided that 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. Meaning thereby if at the time of filing of a suit the plaintiff has a right available to claim which he intentionally omits, he cannot be allowed to claim the same relief in the subsequent suit as it would unnecessarily waste the time of the Court. Insofar as Order 14 Rule 2(2) CPC is concerned it provides that where issues arise in the suit and issue of law could only be decided de hors the evidence, the Court can take up that issue as a preliminary issue if in case of decision of that issue it decides the claim of the plaintiffs in terms of a bar created by any law for the time being in force. There is a decision of the supreme Court in the case of S.Nazeer Ahmed Vs. State Bank of Mysore and others 2007(1) RCR(Civil) 705 that plea of bar under Order 2 Rule 2 of CPC can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. Admittedly in the present case, the evidence of the defendants has yet to start, therefore, pleadings of the previous suit filed in the present case has yet to come on record. This is also an admitted position that CR No.3853 of 2010 (O&M) -5- defendants have not taken a plea in his written statement that the suit is barred by Order 2 Rule 2 CPC nor there is any specific issue, therefore, once there is neither any plea nor specific issue then the defendants can not take up a plea that issue of maintainability would cover the issue of Order 2 Rule 2 CPC as well and for that purpose it may be taken up as a preliminary issue. In my view in order to take up the plea of Order 2 Rule 2 CPC, the plaintiff is not only required to take up that plea but also set up the pleadings of the earlier suit having been filed by the plaintiff against the same defendant and also the relief sought therein. In the absence of a specific issue pertaining to Order 2 Rule 2, to my mind, the Court cannot grant relief to the defendants. Thus, the present revision petition is found to be without any merit and is hereby dismissed. No costs. (Rakesh Kumar Jain) 15.7.2010 Judge Meenu