Karnataka High Court

Shri P. Devaraj vs Smt. Kamalamma on 9 June, 2023

Bench: P.S.Dinesh Kumar, C.M. Poonacha

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF JUNE, 2023

                      PRESENT

     THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                         AND

      THE HON'BLE MR. JUSTICE C.M. POONACHA

            R.F.A. No.1221 OF 2015 (SP)

BETWEEN:

1 . SHRI P. DEVARAJ
    S/O THIMMA REDDY
    AGED ABOUT 45 YEARS
    R/AT NO.115,6TH MAIN
    MICO LAYOUT, BEGUR ROAD
    VANGASANDRA
    BANGALORE-560 058

2 . SHRI S T ANJANA REDDY
    S/O THIMMA REDDY
    AGED ABOUT 56 YEARS
    R/AT SARJAPURA VILLAGE AND HOBLI
    OLD POST OFFICE ROAD
    ANEKAL TALUK 562106
    BANGALOER URBAN DISTRICT

3 . SHRI K A RAMAIAH REDDY
    S/O LATE ABBAIAH REDDY
    AGED AOBUT 80 YEARS

4 . SHRI SRINIVASA REDDY
    S/O K A RAMAIAH REDDY
    AGED AOBUT 45 YEARS

   BOTH ARE R/AT NO.357, 3RD CROSS
                              2




      CAMBRIDGE LAYOUT
      ULSOOR
      BANGALORE-560 008
                                           ... APPELLANTS
(BY SRI RAVI B NAIK, SENIOR ADVOCATE A/W
    SRI K B MONESH KUMAR, ADVOCATE)

AND

1 . SMT. KAMALAMMA
    W/O LATE GANESH
    AGED ABOUT 61 YEARS

2 . SMT. KUMARI
    D/O LATE GANESH
    AGED ABOUT 44 YEARS

3 . SHRI HARISH
    S/O RAMALINGAM
    AGED ABOUT 22 YEARS

4 . SHRI CHANDRASHEKAR
    S/O LATE GANESH
    AGED ABOUT 39 YEARS

5 . SHRI DINESH
    S/O LATE CHANDRASHEKAR
    AGED ABOUT 4 YEARS
    SINCE MINOR REP BY
    HIS MOTHER SMT. SAROJA
    NATURAL GUARDIAN

6 . SHRI SURESH
    S/O LATE GANESH
    AGED ABOUT 36 YEARS

7 . KUM RASHMI
    D/O SURESH
    SINCE MINOR REP BY HER
    MOTHER SMT. PRAMILA
    AS NATURAL GUARDIAN
                             3




   RESPONDENTS NO.1 TO 7 ARE
   R/AT NO.418, KUMBARA STREET
   KADUGODI VILLAGE
   BIDARAHALLI HOBLI
   BANGALORE EAST TALUK
   BANGALORE DISTRICT.

8 . SMT. SUDHA RAKESH V
    W/O RAKESHCHANDRA M S
    AGED ABOUT 36 YEARS
    R/AT MANDUR VILLAGE
    BIDARAHALLI HOBLI
    BANGALORE EAST TALUK
    BANGALORE DISTRICT

9. GAFFAR BAIG
   AGED ABOUT 46 YEARS
   S/O LATE ABDULLA BAIG
   R/AT NO.220/230
   RAHATH GARDENIA,
   VILLA NO.2B, OUTER CIRCLE
   WHITEFIELD
   BANGALORE 560066

10 MRS ABIDA BEGAUM
   AGED ABOUT 46 YEARS
   W/O SYED JAFFER
   R/AT NO.143, 2HM,
   KASTURINAGAR
   BANGALORE-560043

11 MR. SYED IMRAN
   AGED ABOUT 30 YEARS
   S/O MR. SYED JAFFER
   R/AT NO.143, 2HM,
   KASTURINAGAR
   BANGALORE-560043

12 MR. SYED TANFIQ
   AGED ABOUT 40 YEARS
   S/0 SYED MAHABOOB SAB
   R/AT 143, 2HM,
                             4




   KASTURI NAGAR
   BANGALORE 560043

13 M/S CANDEUR CONSTRUCTIONS
   REP. BY ITS DIRECTOR
   SY. 183/1A, 183/1B VARTHUR
   GUNJUR MAIN ROAD,
   VARTHUR BANGALORE
                                           ...RESPONDENTS
(BY SRI JAYAPRAKASH, ADVOCATE FOR C/R2
    SRI K K VASANTH, ADVOCATE FOR C/R8
    SRI SIDDHARTHA H M, ADVOCATE FOR R9 & R10
    SRI SUNIL S RAO, ADVOCATE FOR R11 & R12
    SRI RISHAB D DESAI, ADVOCATE FOR
    SRI. ARUN SRI KUMAR, ADVOCATE FOR R13
    V/O DATED 21.4.2016 R1, R3,R4,R5 R6, R7 SERVED AND
UNREPRESENTED)

      THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE ORDER DATED 12.08.2015 PASSED IN O.S NO.1216/2013
ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, REJECTING THE PLAINT AND
SUIT FOR SPECIFIC PERFORMANCE AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.3.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA, J., DELIVERED THE
FOLLOWING:

                       JUDGMENT

The above First Appeal is filed under Section 96 of

Code of Civil Procedure, 1908 (for short 'CPC') by the

Plaintiffs challenging the order dated 12.08.2015 passed

on I.A. No.8 in O.S. No.1216/2013 by the Prl. Senior Civil

Judge, Bengaluru Rural District, Bengaluru whereunder I.A.

No.8 filed under Order 7 Rule 11 (a), (b), (c) and (d) of

CPC has been allowed and the plaint has been rejected.

2. For the sake of convenience, the parties will be

referred to as per their rank before the Trial Court.

3. The case of the Plaintiffs, in brief, necessary

for consideration of the present Appeal is that, Defendant

Nos.1 to 7 are the absolute owners of land bearing Sy.

No.115 (new No.142) measuring 4 acres 10 guntas

situated at Channasandra, Bidarahalli Hobli, Bengaluru

East Taluk, Bengaluru (hereinafter referred to as 'suit

property'). That the Plaintiffs entered into an Agreement of

Sale dated 15.09.2011 with Defendant Nos.1 to 7 to

purchase the suit property for a total consideration of

Rs.3,82,50,000/- (Rs.90 lakhs per acre) and an advance of

Rs.10 lakhs was paid on the date of the Agreement. That

the sale transaction was required to be completed after the

revenue records in respect of the suit property was

transferred in the name of the Defendants. That although

the Plaintiffs were ready and willing to complete the sale

transaction, the Defendants stated that the revenue

records of the property have not been transferred in their

favour and due to pendency of certain litigations, were

postponing the execution of the Sale Deed. That after the

transfer of the revenue records in the names of

Defendants through MRH No.87/2011-12 dated

04.06.2012, the Plaintiffs approached them to receive the

balance sale consideration and execute the registered sale

deed but they have not come forward. However, on

01.02.2013 when the Plaintiffs went to the suit property,

they noticed Defendant Nos. 2 to 4 were negotiating with a

3rd party to sell the suit property.

3.1. That since the Defendants were making

attempts to alienate the suit property, the Plaintiffs filed

O.S. No.223/2013 for the relief of permanent injunction to

restrain Defendant Nos.1 to 7 from alienating the suit

property and an order of temporary injunction was passed

in the said suit restraining Defendant Nos.1 to 7 from

alienating the suit property in favour of 3rd parties vide

order dated 04.02.2013. That the Defendants, although

being aware of the suit filed by the Plaintiffs, evaded the

summons of the said suit.

3.2. It is the further case of the Plaintiffs that

subsequent to filing of the suit, they learnt that Defendant

Nos.1, 2 and 4 have entered into a registered Agreement

of Sale dated 05.10.2012 with Defendant No. 8 showing

the market value of the suit property as Rs.3 crores and

that the entire sale consideration has been paid as on the

said date. The Plaintiffs got issued a legal notice dated

21.05.2013 calling upon the Defendants to receive the

balance sale consideration of Rs.3,72,50,000/- and

execute a registered Sale Deed in favour of the Plaintiffs

within seven days. That Plaintiff Nos.1 and 2 have

executed an Assignment Deed dated 30.08.2014 in favour

of Plaintiff Nos.3 and 4 to deal with the suit property as

they deem fit and received a sum of `20 lakhs from the

Plaintiff Nos.1 and 2. That the Defendants have refused to

receive the legal notice dated 21.05.2013 and hence, the

Plaintiffs have filed a suit seeking for the following reliefs:

(i) For the relief of specific performance of agreement of sale dt. 15.09.2011 directing the defendants No.1 to 7 to execute proper, valid, registered sale deed in favour of the plaintiffs by receiving the balance sale consideration amount of `3,72,50,000/- (Rupees three crore seventy two lakh and fifty thousand only), in the event the defendants No.1 to 7 fail to do so, this Hon'ble Court may be pleased to execute a proper, valid registered sale deed in respect of the schedule property in favour of the plaintiffs by using the Court machinery;

(ii) Direct the defendant No.8 also to join with the defendants No.1 to 7 for execution of proper, valid, registered sale deed in favour of the plaintiffs No.3 and 4 in respect of the suit schedule property.

(iii) To declare that the registered agreement of sale dt. 05.10.2012, Document No.33l75/2012-13, which is registered at the Office of the Sub- Registrar, Indiranagar, Bangalore, entered into between the defendant No.1 to 7 and defendant No.8 is a collusive and sham document and the same is not binding on the plaintiffs herein to the extent of their share;

(iv) Restrain the defendant from alienating or encumbering the suit schedule property in favour of third parties either by themselves or their family members, GPA holders, henchmen, supporters, agents or any person's claiming any right under or through her, by granting permanent injunction;

(v) Direct the defendants to pay the cost of the suit, and

(vi) To grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case, in the interest of justice and equity.

4. The Defendants entered appearance in the suit

and contested the case of the Plaintiffs by filing Written

Statement. The Defendant No.8 filed I.A. No.8 under Order

7 Rule 11(a), (b), (c) and (d) of CPC to reject the plaint for

want of cause of action, for undervaluing the suit property

nor paying sufficient stamp duty on agreement of sale and

also as barred by law under Order II Rule 2 of CPC.

5. The Plaintiffs filed objections to I.A. No.8. The

Trial Court vide its order dated 12.08.2015 allowed I.A.

No.8 and rejected the plaint as the same is hit by Order II

Rule 2 of CPC. Being aggrieved the present appeal is filed.

6. Sri Ravi B. Naik, learned Senior Counsel

appearing for the Appellants / Plaintiffs contended that:

a) at the time of the earlier suit i.e., O.S.

No.223/2013, there was no cause of

action to file the subsequent suit and

hence, the suit is not barred under res

judicata as held by the Trial Court.

b) The Trial Court ought not to have

held that the subsequent suit is

barred by res judicata without

recording evidence in the matter.

c) The Trial Court ought not to have

entertained the application under

Order VII Rule 11 of the CPC while

considering the aspect of bar of suit

under Order II Rule 2 of the CPC.

7. In support of his contentions, he relied on the

averments of the plaint in the previous suit i.e., O.S.

No.223/2013 and plaint in the present suit i.e., O.S No.

1216/2013 as well as the finding recorded by the Trial

Court in the impugned order. He further relied on the

following judgments:

                  1) Inbasagaran             and   another         v.
                  S. Natarajan1;

                  2) Deva Ram and another v. Ishwar
                  Chand and another2;



    (2015) 11 SCC 12

    (1995) 6 SCC 733





               3) Rohit kumar              and     another      v.
               A S Chugh3;

               4) Srihari Hanumandas Totala v.
               Hemant Vithal Kamat and Others4;
               5) Dalip Singh v. Mehar Rathee and
               others5;

               6) Gurbux Singh v. Bhooralal6.

8. Per contra, Sri K.K.Vasanth, learned counsel

appearing for Respondent No.8, Shri. Siddhartha H.M.,

learned counsel for Respondent Nos.9 and 10 and Shri.

Sunil S. Rao, learned counsel for Respondent Nos.11 and

12 justifying the order passed by the Trial Court contend;

a) The cause of action for the earlier suit O.S. No.223/2013 as well as the present suit i.e., O.S. No.1216/2013 are same.

b) That O.S. No.223/2013 was withdrawn without granting liberty to the Plaintiffs to file another suit.

c) The Trial Court was justified in entertaining IA No.8 filed under Order VII Rule 11 of the CPC and considering the

CS(OS) 36/2007(Delhi HC DD.20.11.2008)

2021 SCC online Sc 565

(2004) 7 SCC 650

aspect regarding bar of suit under Order II Rule 2 of the CPC.

9. In support of their submission, they relied on

the following judgments:

1) Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited7;

2) Vurimi Pullarao v. Vemari Vyankata Radharani and another8;

3) Dahiben v. Arvindbhai Kalyanji Bhanusali9.

10. We have considered the submissions made by

both the learned counsels and perused the material on

record. The questions that arises for our consideration is:

"Whether the Trial Court was justified in rejecting the plaint on the ground that it is hit by Order II Rule 2 of the CPC?"

(1964) 7 SCr 831

(2013) 1 SCC 625

(2020) 14 SCC 110

(2020) 7 SCC 366

11. In order to consider the contentions by the

parties, it is necessary to notice the relevant statutory

provisions. Order 2 Rule 2 of CPC states as follows:

"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 relief:.- 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."

12. In the case of Gurbux Singh6 a Constitution

Bench of the Hon'ble Supreme Court considering the scope

of Order II Rule 2 of CPC has held as follows:

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

(emphasis supplied)

13. In the case of Virgo Industries (Eng.)

Private Limited7, the Hon'ble Supreme Court was

considering a case where the Plaintiff had filed two suits

for permanent injunction on 28.8.2005 and 9.9.2005 to

restrain the Defendant from alienating the suit properties.

The basis of the relief claimed in the suits were two

Agreements of Sale dated 27.7.2005 in respect of two

different properties. In the said suits, the Plaintiff had

stated that the period of six months for execution of the

Sale Deeds under the Agreements was not yet over and

the Plaintiff is not claiming specific performance of the

Agreements. The Plaintiff, accordingly sought leave of the

Court to omit to claim the relief of specific performance

with liberty to sue for the said relief at a later point of

time, if necessary. Subsequently, on 29.5.2007 the

Plaintiff filed two suits seeking for a decree against the

Defendant for execution and registration of the Sale Deeds

in respect of the same properties and for delivery and

possession. In the subsequent suits, it was stated by the

Plaintiff that in respect of the same properties the earlier

suits for injunction were filed and time for performance

had not lapsed and the Plaintiff being under a bona fide

belief that the Defendant would perform/execute the

Agreements, the relief of specific performance was not

claimed.

13.1 The Defendant filed an application before the

High Court to strike off the subsequent suits on the ground

that they were barred under Order II Rule 2 of CPC. The

High Court held that on the date of earlier suits, the time

stipulated for execution of the Sale Deeds having not

expired, the cause of action to seek the relief of specific

performance is not matured and held that Order II Rule 2

of CPC was not attracted and rejected the application filed

by the Defendant.

13.2 The Hon'ble Supreme Court set aside the

judgment of the High Court and held that the suits for

injunction as well as suits for specific performance were

based on the same cause of action and that the

subsequent suits were barred under Order II Rule 2 of

CPC. In the said case it was held as follows:

"11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. ...........

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 CSs 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. xxxx

14. The averments made by the plaintiff in CSs Nos. 831 and 833 of 2005, particularly the pleadings extracted above, leave no room for doubt that on the dates when CSs 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 along with the relief of permanent injunction that formed the

subject-matter of the 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 CSs 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. xxxx

16. In Vithalbhai (P) Ltd. case [(2005) 4 SCC 315] 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."

(emphasis supplied)

14. In the case of Inbasagaran and another1

the Hon'ble Supreme Court was considering a case where

consequent to an Agreement of Sale, the purchaser was

put in possession of the suit property and also put up

construction on the said property. After putting up

construction, since the vendor attempted to take

possession of the suit property, the purchaser filed a suit

for injunction on 11.9.1985 to restrain the Defendant from

taking forcible possession of the building constructed on

the suit property. Pending the said suit, on 25.4.1986 the

purchaser filed a suit for specific performance. The

Defendant (owner of the property), inter alia, took a

defence that the subsequent suit for specific performance

is barred under Order II Rule 2 of CPC. The Defendant

(owner of the property) had also filed a suit for injunction

to restrain the purchaser from interfering with his peaceful

possession and enjoyment of the suit property. The Trial

Court tried all the suits together and dismissed the suits

for injunction filed by the owner and purchaser and

decreed the suit for specific performance filed by the

purchaser.

14.1 The High Court held that the subsequent suit

for specific performance is barred under Order II Rule 2 of

CPC and set aside the judgment and decree passed by the

Trial Court. The Hon'ble Supreme Court, upon

consideration of the material on record held that the cause

of action and the relief sought for in the two suits are

distinct and not the same. It also considered the earlier

judgment rendered in the case of the Virgo Industries

(Eng.) Private Limited7 and noticed that the said

judgment was distinguishable on the facts of the case.

The Hon'ble Supreme Court set aside the judgment of the

High Court and remanded the matter to the High Court for

consideration on the merits of the case. While

distinguishing the said case from the case of Virgo

Industries (Eng.) Private Limited7 the Hon'ble

Supreme Court recorded the following findings:

"29. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement."

(emphasis supplied)

15. In the case of Vurimi Pullarao8 the Hon'ble

Supreme Court was considering a case where, consequent

to an Agreement of Sale, possession was alleged to have

been handed over to the purchaser. Alleging that the

owner sought to obstruct the possession, the purchaser

filed a suit for injunction on 30.10.1996 and no leave of

the Court was sought under Order II Rule 2 of CPC to

institute a suit for specific performance subsequently.

Subsequently, on 30.4.1997 the purchaser filed a suit for

specific performance. The Defendant contested the

subsequent suit raising the bar under Order II Rule 2 of

CPC. The Trial Court upheld the said contention and

dismissed the suit for specific performance. The first

Appellate Court reversed the said judgment and held that

bar under Order II Rule 2 of CPC was not attracted. The

High Court in second appeal set aside the judgment of the

first Appellate Court and remanded the matter to the first

Appellate Court by consent of the parties to decide the

appeals afresh. Subsequent to the remand, the first

Appellate Court held that the subsequent suit was barred

which was upheld by the High Court. The Hon'ble

Supreme Court considering the judgment in the case of

Virgo Industries (Eng.) Private Limited7 upheld the

judgment of the first Appellate Court.

16. It is clear from the aforementioned that the

principles contained under Order II Rule 2 of CPC and the

law as laid down by the Constitution Bench of the Hon'ble

Supreme Court in the case of Gurbux Singh6 has been

noticed and followed in the case of Virgo Industries

(Eng.) Private Limited7, Inbasagaran and another1

and Vurimi Pullarao8. In the cases of Virgo Industries

(Eng.) Private Limited7 and Vurimi Pullarao8 while

applying the settled proposition of law to the facts of the

respective cases, it was held that subsequent suit was

barred. However, in the case of Inbasagaran and

another1 while applying the settled proposition of law to

the facts of the said case, it was held that the subsequent

suits were not barred. The Hon'ble Supreme Court at

paras 28 and 29 of the judgment in the case of

Inbasagaran and another1 has clearly distinguished the

judgment in the case of Virgo Industries (Eng.) Private

Limited7. Hence, it cannot be said that the Hon'ble

Supreme Court in the case of Inbasagaran and another1

has overruled the ratio as held in the case of Virgo

Industries (Eng.) Private Limited7 .

17. In order to apply the settled proposition of law

with regard to Order II Rule 2 of CPC, the relevant facts of

the present case are required to be noticed.

18. The relevant paragraphs of the plaint in

OS.No.223/2013 are extracted herein below for ready

reference:

"14. It is respectfully submitted that in fact, on 1.2.2013 when the plaintiffs being an agreement holders of the schedule property went near the schedule property by that time the defendants No.1, 4 and 6 have brought third parties near the schedule property and have started to show them the schedule property with an intention to negotiate for alienation of the schedule property in favour of third parties whom they brought to the spot in persons of the plaintiffs itself immediately the plaintiffs who were present in the spot have objected and question the defendants of their acts stating that there is already an agreement of sale executed by the defendants in favour of the plaintiffs on 15.9.2011 agreeing to sell the suit property by receiving the advance amount and that now they cannot do any illegal acts but deprive the legal right accrued to the plaintiffs in pursuance of the agreement of sale executed by the defendants for which the defendants have started to proclaim that at the time of agreement of sale the market value of the schedule property was only Rs.3,82,50,000/- and now it is increased more and hence, they want to sell the schedule property to

the persons of their choice and they are not willing to sell the schedule property to the plaintiff for the rate fixed under the agreement of sale.

16. It is submitted that the plaintiffs have reserved their right to file a separate suit for the relief of relief of specific performance under the agreement of sale dtd.15.9.2011 and for consequential relief, but now in view of the urgency of the matter as the defendants are making all sorts of illegal attempts to alienate the suit property in favour of third parties with an intention to deprive the plaintiffs legal right accrued them under the agreement of sale. Having no alternative remedy the plaintiffs are constrained to file the above suit for the relief of permanent injunction to restrain the defendants from alienating the suit schedule property in favour of third parties. It is submitted that if the defendants are not restrained from alienating the suit property in favour of third parties, the defendants will take undue advantage of the situation and will sell the suit property in favour of the third parties, in such an event the plaintiffs will be put to great hardship, irreparable loss and injury, further more it will leads to multiplicity of proceedings. Hence, the above suit.

17. The cause of action for the suit arose on 1.2.2013 when the defendants have executed an agreement of sale on 15.9.2011 in favour of the plaintiffs by receiving advance sale consideration amount of Rs. 10,00,000/- and subsequently on all occasion when the plaintiffs have approached the defendants with a request to furnish the revenue documents to enable them for payment of balance consideration amount and to get registered the sale deed so also on 1.2.2013 when the plaintiff's were came near the schedule property by that time the defendant No.1, 4 and 6 came with third parties to show the property and were making negotiations for sale of the property which are within the jurisdiction of this Hon'ble Court."

(emphasis supplied)

19. The relevant paragraphs of the plaint in OS

No.1216/2013 are extracted herein below for ready

reference:

"10. It is submitted that to the shock and surprise of the plaintiffs No.1 and 2 on 01.02.2013, they being the agreement 9 holder, went to the schedule property, while the defendants No.1 to 4 came near the suit schedule property and negotiating with some third parties with an intention to sell the same in their favour even though the agreement of sale executed by them is subsisting and hence, the plaintiffs No.1 and 2 have objected for the same. Thereafterwards, having no alternative remedy, since the defendants No.1 to 7 are making illegal attempts to alienate the schedule property in favour of third parties, the the plaintiffs No.1 and 2 were constrained to file a suit in O.S. No.223/2013 on the file of the Hon'ble Principal Civil Judge, Bangalore Rural District Bangalore for the relief of permanent injunction restraining the defendants No.1 to 7 from alienating the suit schedule property in favour of third parties and for other consequential relief/s.

11. It is submitted that on considering the case of the plaintiffs No.1 and 2, the Hon'ble Court is pleased to pass an order of temporary injunction restraining the defendants No.1 to 7 from alienating the suit schedule property in favour of third parties by an order dt 04.02.2013. It is submitted that the Hon'ble Court is pleased to issue Summons, so also the plaintiffs No.1 and 2 have complied with the direction given by the Hon'ble Court. But in spite of passing of the order by the Hon'ble Court so also sending of plaint papers along with documents in the said suit, the defendants No.1 to 7 have intellectually evaded receiving the same and the RPAD sent to them have been returned un-served to the Advocate

of the plaintiffs No.1 and 2. Copy of the plaint and interim order dt 04.02.2013 are herewith produced for kind perusal of this Hon'ble Court as Document No.3 & 4.

17. The cause of action for the suit arose on 15.09.2011 when the defendants have executed the agreement of sale in favour of the plaintiffs and received a sum of Rs 10,00,000/- (Rupees ten lakh only) towards part performance of agreement of sale and further on 21.05.2013 when the plaintiffs have issued legal notice to the defendants calling upon them to execute proper, valid, registered sale deed in favour of the plaintiffs by receiving the balance consideration amount within 7 days from the date of receipt of legal notice, which are all within the jurisdiction of this Hon'ble Court."

(emphasis supplied)

20. It is clear from the averments made at para 14

of the plaint in OS.No.223/2013 that the Plaintiffs were

aware that the Defendants were not willing to sell the suit

property to the Plaintiffs.

21. It is relevant to note that the event

contemplated for completion of the sale transaction i.e.,

transfer of revenue records was admittedly completed

prior to filing of the earlier suit for injunction in O.S.

No.223/2013.

22. It is also relevant to note that although in the

cause of action for the earlier suit the date has been

mentioned as 15.11.2011 when the Agreement of Sale was

executed and on 1.2.2013 when the Plaintiffs allegedly

went near the suit property, the cause of action mentioned

in the subsequent suit is mentioned as 15.9.2011 when

the Agreement of Sale was executed and on 21.5.2013

when a legal notice was got issued by the Plaintiffs to the

Defendants.

23. Another aspect which is required to be placed

on record is that the Agreement of Sale was entered into

by Plaintiff Nos.1 and 2. Subsequently, they executed the

Assignment Deed on 13.8.2004 in favour of Plaintiff Nos.3

and 4 for a consideration of `20 lakhs and their right under

the said Agreement of Sale was assigned in favour of the

Plaintiffs.

24. Having regard to the aforementioned, the

Plaintiffs having averred in the earlier suit that the

Defendants were not willing to sell the suit property, they

ought to have sought for the relief of specific performance

when OS No.223/2013 was filed.

25. It is to be noticed that in the earlier suit OS

No.223/2013, at para 16 of the plaint, the Plaintiffs have

averred regarding reservation of their right to file a

separate suit for the relief of specific performance. It is a

matter of record that pursuant to a memo dated

16.08.2014, the said suit in OS No.223/2013 was

dismissed as withdrawn. Admittedly, no leave as

contemplated under Order II Rule 2(3) of the CPC has

been granted by the Court. Hence, a subsequent suit is

clearly barred by Order II Rule 2 of the CPC.

26. The contention of the learned Counsel for the

Appellants that the order of the Trial Court is liable to be

interfered with as the same has been passed before

recording of evidence is liable to be rejected in as much as

admittedly, the Plaintiffs themselves have filed a copy of

the plaint of the earlier suit in OS.No.223/2013 and the

same is a part of record. The plaint has also been referred

to by the Trial Court while passing the impugned order.

The observations, in Gurbux Singh6 made by the Hon'ble

Supreme Court that the evidence was not recorded before

the plea under Order II Rule 2 was considered, were made

having regard to the facts of the said case that while

considering the bar under Order II Rule 2 of the CPC the

Trial Court had only referred to the judgment rendered in

the earlier suit and the pleadings of the earlier suit were

not placed on record. This aspect of the matter also had

been noticed by the Hon'ble Supreme Court in the case of

Vurimi Pullarao8. Hence the said contention will not aid

the case of the Appellants/Plaintiffs.

27. It is a settled position of law that the Court

while adjudicating an application under Order VII Rule 11

of the CPC is required to consider only the averments

made in the plaint and the documents produced along with

the plaint. The Hon'ble Supreme Court in the case of

Dahiben9 has held as follows:-

"23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.

23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.

28. The Plaintiff at para 10 of the plaint has

specifically pleaded regarding the earlier suit filed in OS

No.223/2013. It is also forthcoming from para 11 of the

plaint that a copy of the earlier suit in OS.No.223/2013

was produced before the Trial Court. Hence, the Trial

Court was perfectly justified in entertaining IA No.8 filed

by Defendant No.8 under Order VII Rule 11 of the CPC.

29. The Trial Court considered all aspects of the

matter and has found that the suit filed by the Plaintiffs is

barred under Order II Rule 2 of the CPC. Upon a re-

appreciation of the material on record it is clear and

forthcoming that the Trial Court was justified in allowing