[Cites 7, Cited by 0]
Karnataka High Court
M/S Varna Builders And Developers vs Sri G Rajappa on 12 February, 2026
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RFA No. 1899 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
REGULAR FIRST APPEAL NO.1899 OF 2012 (SP)
BETWEEN:
M/S.VARNA BUILDERS AND DEVELOPERS,
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.33,
SWISS COMPLEX, RACE COURSE ROAD,
BANGALORE-560 001, PRESENTLY AT NO.22/2,
1ST MAIN ROAD CROSS, JAYAMAHAL, BANGALORE.
REP. BY ITS MANAGING PARTNER,
SRI V.BHAKTHA KUMAR.
...APPELLANT
(BY SRI SHYAM KOUNDINYA. A.S, ADVOCATE)
AND:
1. SRI.G.RAJAPPA
SINCE DEAD BY LRS
1(a) SMT.LAKSHMI RAJAPPA,
W/O LATE G.RAJAPPA,
AGED ABOUT 65 YEARS,
1(b) SRI.G.R.PRADEEP,
S/O LATE G.RAJAPPA,
AGED ABOUT 39 YEARS,
1(c) SRI.G.R.SANDEEP,
S/O LATE G.RAJAPPA,
AGED ABOUT 36 YEARS,
R1(a) TO (c) ARE R/AT
NO.562, 20TH MAIN, 36TH CROSS,
4TH T BLOCK, JAYANAGAR,
BENGALURU-560 041
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RFA No. 1899 of 2012
2. SRI.JAGANNATHA V. PAI,
MAJOR,
R/AT NO.1319, SARAKKI LAYOUT,
2ND PHASE, J P NAGAR,
BANGALORE-560 078
...RESPONDENTS
(BY SRI.B.N.BALASUBRAMANYA, ADVOCATE FOR R1(a) & (c);
SRI PRABHUGOUD B TUMBIGI,ADVOCATE FOR R1(b);
R2 SERVED & UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
05.11.2011 PASSED IN O.S.NO.15935/2005 ON THE FILE OF XXXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE AND MESNE
PROFIT.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS
DAY, JAYANT BANERJI J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
and
HON'BLE MR. JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)
The plaintiff-appellant, which is a registered firm, filed a
suit for specific performance of the agreement dated
04.10.1994 directing first defendant to execute sale deed in
respect of the suit schedule 'C' property. The rent/mesne profit
in respect of the said property was claimed. Also sought was
vacant possession and costs.
2. For the sake of convenience, the parties are being
referred to by their ranking in the suit.
3. The plaintiff's case is that it is a partnership firm
registered on 18.08.1994. The objective of the firm is inter alia
to acquire the property in the name of the firm. In the year
1994, the plaintiff came across an offer made by first defendant
in respect of the property bearing No.1319 situated at Sarakki
Layout, II Phase, J.P.Nagar, Bangalore measuring 3600 square
feet which is suit schedule 'A' property. This property was
allotted by BDA1 and possession certificate was issued on
16.11.1992 with a condition of non-alienation for a period of
ten years. The offer of first defendant was that he did not have
funds to develop the property and exploit to its maximum
potential, as he was a Police Officer in the Government of
Karnataka and he was agreeable to share the property, the
plaintiff agreed and accepted the offer of the first defendant to
develop and share the schedule 'A' property.
4. The plaintiff had to bear the cost of developing the
property which thereafter had to be shared mutually to the
benefit of the plaintiff and first defendant. The plan was that
approximate development of the property would be upto
second floor. Based on that, it was agreed by both the parties
to share the properties after development. In the basement,
Bangalore Development Authority
three car parking space were required to be given to the land
owner, who is the first defendant, measuring 450 square feet.
Since the site was to have a showroom, it was agreed that 500
square feet would be given to the first defendant for showroom
purpose and in the first and second floor, 3450 square feet in
all was to be given to him. The rest of the area up to second
floor would go to the plaintiff, which the first defendant agreed
to convey in favour of the plaintiff or anybody the plaintiff
nominates. It was agreed that in the event any construction is
put up above the second floor, the same shall be shared
equally by the plaintiff and first defendant. However, conveying
the share of the plaintiff by the first defendant was agreed to
be done after completion of lease period, that is, ten years
from 16.11.1992. Until then, if the construction was completed,
only possession was to be delivered to the plaintiff of its share.
5. The first defendant had already obtained plan
sanctioned by the Competent Authority which was not meeting
the requirements of the parties. Therefore, it was agreed that a
new plan be made. The terms and conditions of the
construction, development and conveying of shares in the
property had been reduced in writing by an agreement dated
14.10.1994. First defendant had also executed GPA2 in favour
of the Managing Partner of the plaintiff. Reference has been
made to various clauses of the aforesaid agreement regarding
monetary aspects, obtaining permission from BDA for
commercial complexes etc., sharing of the building, exploitation
of the property described in scheduled 'A', the execution of
authorization in favour of the plaintiff by the first defendant,
obtaining of financial assistance etc.
6. It is stated that the first defendant was required to
get the lease cleared from the BDA and register the undivided
interest in the land of the plaintiff in lieu of the undivided
interest in favour of the plaintiff and handing over the original
documents, the plaintiff was required to handover the built up
area as provided in the Clauses 4 and 5 of the agreement. It is
stated that the first defendant did not deliver the original
documents of the property which would enable the plaintiff to
obtain financial assistance. Therefore the plaintiff was
compelled to stop construction in the third floor in the month of
March 1999 to enable him to get finance from other sources.
The first defendant, who was enjoying the portion of the
constructed building, got issued a notice dated 10.05.1999
General Power of Attorney
through his advocate, unilaterally cancelling the Agreement and
the GPA.
7. It is stated that a suit of 20003 was filed by the
plaintiff challenging the aforesaid unilateral act of the first
defendant and injunction was also sought. It is stated that at
the time when the unilateral action of notice of cancellation of
the agreement/GPA was made by the first defendant, the
plaintiff had completed 70% of the work spending ₹36,00,000/-
and another sum of ₹14,00,000/- to construct a total area of
15360 square feet building including the third floor. He had
used 80 metric tonnes of steel, 12,000 bags of cement and
other building materials worth a huge sum of money. It is
stated that the agreement entered into between the plaintiff
and the first defendant on 14.10.1994 is not a time bound
agreement and the terms and conditions and other
contingencies have been complied with, and the building is to
be registered in proportion to the shares agreed to be
registered in favour of the plaintiff. Therefore, with a view to
get the property registered in terms of the aforesaid
agreement, given the fact that the plaintiff was ready and
willing to register the property, asked the first defendant to do
the needful. But there was no response. Accordingly, a decree
for specific performance of the agreement dated '04.10.1994'
was sought and for directing the first defendant to execute a
sale deed in respect of suit schedule 'C' property and for other
reliefs including rents, mesne profit, and vacant possession of
suit scheduled 'C' property.
8. A written statement was filed by the first defendant
wherein inter alia, it was denied that the plaintiff is a registered
partnership firm. It was stated that the suit is for specific
performance of an agreement dated '04.10.1994'. However
instead of filing the suit for specific performance of that
agreement, the plaintiff filed suit of 2000 for vague relief of
declaration that the first defendant herein was not entitled to
cancel or rescind the GPA and the construction agreement
dated 14.10.1994 and other reliefs. It was stated that the first
defendant had entered appearance and filed a detailed written
statement in the aforesaid suit of 2000 stating that the GPA
and the alleged agreement dated 14.10.1994 were cancelled by
the first defendant and therefore the plaintiff had no right
under the said agreement. It was therefore stated that the
relief for specific performance and that too in respect of suit
schedule 'C' property is wholly untenable and totally barred by
law. It was stated that though the first defendant had
performed all the obligations cast upon him under the
agreement dated 14.10.1994, and executed GPA in favour of
the plaintiff's Managing Partner, yet the plaintiff chose not to
obtain the requisite building plan sanctioned from the
authorities concerned for putting up the construction of the suit
schedule property, even till 10.05.1999. Left with no option,
the first defendant terminated the contract dated 14.10.1994.
It was stated that to the legal notice sent by the first defendant
dated 10.05.1999, which was duly received by the plaintiff,
there was no reply sent by the plaintiff to the legal notice. The
other allegations made in the plaint were also denied. The pleas
of bar of limitation and bar of Order II Rule 2 of CPC were also
raised.
9. Second defendant also filed his written statement
denying all the averments made by the plaintiff in the plaint as
false, frivolous and vexatious. He denied being party to the
agreement entered into between the plaintiff and the first
defendant and stated that that agreement is not binding on
him. He pleaded ignorance regarding the revocation of earlier
agreement and GPA between the plaintiff and the first
defendant.
10. The trial Court framed the following issues and
additional issues:
(i) Whether plaintiff proves that it was always ready
and willing to perform its part of the contract dated
04.10.1994 and it was defendant No.1 who has
fallen back from the promise?
(ii) Whether plaintiff proves payment of consideration
amount as stated in the plaint?
(iii) Whether plaintiff proves that, the defendants are
bound to pay mesne profit concerning 'C' schedule
property, if so how much amount and at what rate?
(iv) Whether plaintiff is entitled to actual possession of
'C' schedule property?
(v) Whether plaintiff is entitled to the relief claimed?
(vi) What order or decree?
Additional Issues framed on 20.02.2010:
(i) Whether the suit is barred by law of limitation?
(ii) Whether the suit is barred under Order II Rule 2 of
CPC?
(iii) Whether the suit is undervalued? And the Court fee
paid is insufficient?
11. In support of the case of the plaintiff, the Managing
Partner of the plaintiff's firm got himself examined as PW.1 and
got marked 16 documents as Exs.P1 to P16 and closed his side.
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In support of the case of the defendants, learned Counsel for
the first defendant got exhibited four documents as Exs.D1 to
D4 and closed his side. The defendants did not appear before
the Court for giving their evidence, so their oral evidence was
taken as 'nil' and the recording of evidence was closed.
12. The points for determination in this appeal would
be:
(i) Whether the trial Court correctly decided that the
suit is barred under Order II Rule 2 of CPC?
(ii) Whether the trial Court correctly decided that the
suit is barred by law of limitation?
(iii) In case the answer to both the aforesaid points is in
the negative, then, whether the suit for specific
performance can be decreed?
13. The trial Court observed that the plaintiff who
appeared as PW.1, admitted filing of the suit of 2000 against
the first defendant seeking the reliefs of declaration and
injunction, but only xerox copy of its plaint was produced by
the plaintiff. In that plaint, though the terms and conditions of
the development agreement were narrated, but it was not
stated that the plaintiff had already completed construction of
that building up to second floor. As is stated in the plaint in the
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suit of 20054, if at the time of issuance of notice dated
10.05.1999 (Ex.D1), there was any document with the plaintiff
to demonstrate that he had completed the construction work of
the entire building, then in the suit of 2000 itself, the plaintiff
would have sought the relief which had been sought in the suit
of 2005. If the cause of action did arise after issuance of the
notice Ex.D1, then, if he had already completed the
development work of the property, he could have sought for
specific performance of contract claiming his share in the
construction etc. On failure of the plaintiff to prove the fact of
complete development work of that property, as per the
development agreement dated 14.10.1994 (Ex.P5), then the
plaintiff is not entitled for the discretionary relief of specific
performance of contract with respect to the suit schedule
property against the defendants.
14. The relief of specific performance of contract, being
a discretionary power vested with the Court, the plaintiff failed
to prove the fact of actual development work done over the suit
schedule property by expending amounts as reflected in
Exs.P12 to P14 and P16. The receipts prepared by the plaintiff
are undated and did not reflect on which dates the amounts
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were paid to the contractor. No photographs regarding the
construction work were produced by the plaintiff.
15. It was further observed that in the cross
examination of PW.1, he admitted that under the development
agreement, the plaintiff had not paid any amounts to the first
defendant. Therefore, there being no evidence, the fact of
payment made by the plaintiff to the first defendant is not
proved.
16. With regard to the relief of specific performance of
contract to the suit schedule 'C' property and for mesne profit
of the same, only when the plaintiff could have proved that he
has properly performed his part of development work
(contract), he could claim the same. Therefore, it was held that
the plaintiff is not entitled for mesne profit and possession of
the suit schedule 'C' property.
17. As regards limitation, it was observed that the time
prescribed for filing a suit for specific performance of contract is
within three years from the date of execution of document and
if date is not mentioned, then within three years from the date
of receipt of notice. The development work was required to be
completed within 24 months from the date of execution of
Ex.P5. But the same was not done. It was observed by the trial
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Court that since the plaintiff admitted filing of the suit of 2000
against the first defendant, he was at liberty to seek the relief
for which he was entitled. But in the suit of 2000, the relief of
specific performance was not sought. Therefore, he could have
sought leave of the Court in the suit of 2000 to file a fresh suit
in respect of the present relief, which he did not. Therefore, it
was held that the suit of 2005 is hit by Order II Rule 2 of CPC.
It was noted that the first defendant had revoked the
development agreement and the GPA by issuing the notice
Ex.D1 which is dated 10.05.1999. Therefore it was held that
the suit is filed beyond three years from the date of issuance of
the notice. The trial Court answered the issues and the
additional issues of the suit being barred by limitation and the
suit being barred under Order II Rule 2 of CPC in the
affirmative. Accordingly, the trial Court dismissed the suit of
the plaintiff.
18. It is seen from the record that on behalf of the
defendants, that a certified copy of the order passed on
I.A.Nos.I to III in the suit of 2000 was filed as Ex.D3 apart from
the following documents:
Ex.D1 Legal notice dated 10.05.1999
Ex.D2 Postal acknowledgement
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Ex.D4 Certified copy of the order passed in
M.F.A.No.4754/2004 (CPC)
19. Ex.D3 is an order passed on I.A.Nos.I to III on
31.03.2004 in the suit of 2000. I.A.No.I was filed seeking an
order of temporary injunction restraining the defendant from
interfering with the construction activities of the plaintiff on the
suit property pending disposal of the suit. I.A.No.II was filed
praying for an order of temporary injunction restraining the
defendant from entering into any agreement with third party
for putting up construction on the suit property. I.A.No.III was
filed by the plaintiff praying for temporary injunction restraining
the defendants from encumbering the suit property by way of
sale, mortgage, lease or creating any charge in respect of the
suit property pending disposal of the suit. The aforesaid
applications came to be rejected by means of the order of
31.03.2004.
20. Ex.D4 is a certified copy of the order passed in
M.F.A.No.4754/2004 (CPC) which was filed by the
plaintiff/appellant, challenging the order rejecting the
application seeking an order of injunction against the
respondent from alienating the property. The said appeal was
dismissed by the High Court.
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21. As is evident from the aforesaid, Ex.D1 is the legal
notice dated 10.05.1999 sent by the first defendant to the
plaintiff. No record of the suit of 2000 was filed by any party.
Neither the plaint, written statement nor the judgment and
decree of the suit of 2000 were filed. The trial Court has based
its finding regarding the bar of suit under Order II Rule 2 of
CPC based on the admission of PW.1 in its testimony. It was
held by the trial Court that non-production of earlier plaint and
evidence of the defendant is not necessary for considering the
plea of bar of Order II Rule 2 of CPC.
22. Order II Rule 2 of CPC reads thus:
"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.
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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."
23. The Supreme Court in Gurbux Singh v. Bhooralal5
referred to a conflict of judicial opinion on the question whether
a suit for possession of immovable properties and a suit for the
recovery of mesne profits from the same property are both
based on the same cause of action, and if only these two reliefs
are based on the same cause of action then the plea of Order II
Rule 2 of CPC could succeed. The terms of Order II Rule 4 of
CPC was also referred to by the Supreme Court as an aid to the
construction of the term 'cause of action', and the expression
'relief' based on the 'same cause of action' in Order II Rule 2 of
CPC, the Court held as follows:
"6. In order that a plea of a bar under 0. 2. r. 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 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
AIR 1964 SC 1810
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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. No doubt, a relief which is sought in a plaint could
ordinarily be traceable to a particular cause of action but this
might, by no means, be the universal rule. As the plea is a
technical bar it has to be established satisfactorily and
cannot be presumed merely on basis of inferential
reasoning. It is for this reason that we consider that a plea
of a bar under 0. 2. r. 2, Civil Procedure Code 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. It is
common ground that the pleadings in C.S. 28 of 1950 were
not filed by the appellant in the present suit as evidence in
support of his plea under 0. 2. r. 2, Civil Procedure Code.
The learned trial Judge, however, without these pleadings
being on the record inferred what the cause of action should
have been from the reference to the previous suit contained
in the plaint as a matter of deduction. At the stage of the
appeal the learned District Judge noticed this lacuna in the
appellant's case and pointed out, in our opinion, rightly that
without the plaint in the previous suit being on the record, a
plea of a bar under 0. 2. r. 2, Civil Procedure Code was not
maintainable. Learned counsel for the appellant, however,
drew our attention to a passage in the judgment of the
learned Judge in the High Court which read:
"The plaint, written statement or the judgment
of the earlier court has not been filed by any of the
parties to the suit. The only document filed was the
judgment in appeal in the earlier suit. The two court
have, however, freely cited for the record of the earlier
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suit. The counsel for the parties have likewise done so.
That file is also before this Court.""
(Emphasis supplied)
24. In yet another case of Rathnavathi v. Kavita
Ganashamdas6 one of the questions that was being considered
by the Supreme Court was whether under the facts and
circumstances of that case, the bar contained in Order II Rule 2
of CPC is attracted? In that case, the plaintiff has initially filed a
civil suit in the year 2000 against three defendants seeking
permanent injunction restraining them jointly and severally
from interfering in the plaintiff's possession over the suit house.
The case of the plaintiff was that for purchase of the suit house,
an agreement was entered into between the plaintiff and
defendant No.2, in which certain sums of money were
advanced towards the sale consideration. The plaintiff was
placed in actual physical possession of the suit house and was
continuing in possession. However, defendant No.2 did not
execute the sale deed despite having received the full sale
consideration from the plaintiff. When a total stranger,
defendant No.1 tried to interfere with the possession of the
plaintiff, the suit was filed. Later in the year 2000 itself the
plaintiff filed another suit against the defendants for specific
(2015) 5 SCC 223
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performance of the agreement in relation to the suit house. The
defendants, apart from denial of material allegations regarding
payment of the sale consideration, also contested the suit on
two legal grounds. First was on the ground of maintainability, in
view of the bar contained in Order II Rule 2 of CPC. That did
not permit the plaintiff to file the suit for specific performance
of agreement against the defendants when she had filed the
first suit for permanent injunction. Secondly, the bar of
limitation from the date of accrual of cause of action as
provided in Article 54 of the Limitation Act, 1963 was raised.
The suits were consolidated for trial and the issues were
framed. Evidence was led. While answering some issues in the
plaintiff's favour, the suits were eventually dismissed on the
ground that the plaintiff was not put in possession of the suit
house pursuant to the agreement in question; that the plaintiff
was not ready and willing to perform his part of the agreement;
that the suit is barred by limitation; that the plaintiff was not
entitled to claim the relief for specific performance; that the
plaintiff was not entitled to claim the relief for grant of
permanent injunction; that the suit was hit by the bar
contained in Order II Rule 2 of CPC because the plaintiff did not
obtain leave to file second suit for specific performance while
filing the first suit for grant of permanent injunction. While
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referring to its judgment in Gurbux Singh's case (supra) as well
as other judgments, the Supreme Court held that the bar of
Order II Rule 2 of CPC is not attracted because of the
distinction in the cause of action for filing of the two suits. It
was held that the ingredients to file the suit for permanent
injunction are different than that of the suit for specific
performance of the agreement. Therefore, both the suits were
found on different causes of action and hence could be filed
simultaneously. The Supreme Court held as follows:
"26. One of the basic requirements for
successfully invoking the plea of Order 2 Rule 2 CPC is
that the defendant of the second suit must be able to
show that the second suit was also in respect of the
same cause of action as that on which the previous suit
was based. As mentioned supra, since in the case on
hand, this basic requirement in relation to cause of
action is not made out, the defendants (appellants
herein) are not entitled to raise a plea of bar contained in
Order 2 Rule 2 CPC to successfully non-suit the plaintiff
from prosecuting her suit for specific performance of the
agreement against the defendants.
27. Indeed when the cause of action to claim
the respective reliefs were different so also the
ingredients for claiming the reliefs, we fail to appreciate
as to how a plea of Order 2 Rule 2 CPC could be allowed
to be raised by the defendants and how it was
sustainable on such facts.
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28. We cannot accept the submission of the
learned Senior Counsel for the appellants when she
contended that since both the suits were based on
identical pleadings and when cause of action to sue for
relief of specific performance of agreement was available
to the plaintiff prior to filing of the first suit, the second
suit was hit by bar contained in Order 2 Rule 2 CPC.
29. The submission has a fallacy for two basic
reasons. Firstly, as held above, cause of action in two
suits being different, a suit for specific performance could
not have been instituted on the basis of cause of action
of the first suit. Secondly, merely because pleadings of
both suits were similar to some extent did not give any
right to the defendants to raise the plea of bar contained
in Order 2 Rule 2 CPC. It is the cause of action which is
material to determine the applicability of bar under Order
2 Rule 2 CPC and not merely the pleadings. For these
reasons, it was not necessary for the plaintiff to obtain
any leave from the court as provided in Order 2 Rule 2
CPC for filing the second suit.
30. Since the plea of Order 2 Rule 2 CPC, if
upheld, results in depriving the plaintiff to file the second
suit, it is necessary for the court to carefully examine the
entire factual matrix of both the suits, the cause of
action on which the suits are founded, the reliefs claimed
in both the suits and lastly, the legal provisions
applicable for grant of reliefs in both the suits."
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25. The Supreme Court in Cuddalore Powergen
Corporation Ltd. v. Chemplast Cuddalore Vinyls Limited and
Another7 held as follows:
"47. On a conspectus of the aforesaid discussion,
what follows is that:
i. The object of Order II Rule 2 is to prevent the
multiplicity of suits and the provision is founded on
the principle that a person shall not be vexed twice
for one and the same cause.
ii. The mandate of Order II Rule 2 is the inclusion of the
whole claim arising in respect of one and the same
cause of action, in one suit. It must not be
misunderstood to mean that all the different causes
of action arising from the same transaction must be
included in a single suit.
iii. Several definitions have been given to the phrase
"cause of action" and it can safely be said to mean -
"every fact which would be necessary for the plaintiff
to prove, if traversed, in order to support his right to
the judgment of the Court". Such a cause of action
has no relation whatsoever to the defence that may
be set up by the defendant, nor does it depend upon
the character of the relief which is prayed for by the
plaintiff but refers to the media upon which the
plaintiff asks the Court to arrive at a conclusion in his
favour.
iv. Similarly, several tests have been laid out to
determine the applicability of Order II Rule 2 to a
suit. While it is acknowledged that the same heavily
depends on the particular facts and circumstances of
2025 SCC Online SC 82
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each case, it can be said that a correct and reliable
test is to determine whether the claim in the new suit
is in fact founded upon a cause of action distinct from
that which was the foundation of the former suit.
Additionally, if the evidence required to support the
claims is different, then the causes of action can also
be considered to be different. Furthermore, it is
necessary for the causes of action in the two suits to
be identical in substance and not merely technically
identical.
v. The defendant who takes shelter under the bar
imposed by Order II Rule 2(3) must establish that (a)
the second suit was in respect of the same cause of
action as that on which the previous suit was based;
(b) in respect of that cause of action, the plaintiff was
entitled to more than one relief; and (c) being thus
entitled to more than one relief, the plaintiff, without
any leave obtained from the Court, omitted to sue for
the relief for which the second suit had been filed.
vi. The defendant must also have produced the earlier
plaint in evidence in order to establish that there is
an identity in the causes of action between both the
suits and that there was a deliberate relinquishment
of a larger relief on the part of the plaintiff.
vii. Since the plea is a technical bar, it has to be
established satisfactorily and cannot be presumed
merely on the basis of inferential reasoning.
.................................................................................................
56. Order VII Rule 11(d) reads as - "where the suit
appears from the statement in the plaint to be barred
by any law". In light of the aforesaid, it follows that
before rejecting the plaint under Order VII Rule
11(d), the Courts must ensure that the plaint is read
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as a whole and its entire averments are looked into.
A few lines or passages must not be read in isolation
and it is imperative that the pleadings are read as a
whole for ascertaining the true import of the
averments therein. In performing such a holistic
reading, it must be deduced whether the causes of
action in both the suits are identical in substance in
order to sustain a successful plea under Order II Rule
2. It would be a reductive approach to only cull out
the cause of action paragraphs from the respective
plaints and decide that they disclose the same cause
of action on mere comparative overview.
..................................................................................................
86. It is established law that the principles governing the
applicability of the provisions of Order II Rule 2 do
not operate as a bar when the subsequent suit is
based on a cause of action different from that on
which the first suit was based and that the identity of
the causes of action in both the suits must be the
material consideration before the court which decide
the applicability of this provision to a second suit filed
by the plaintiff. It would be incorrect for us to hold
that merely because the pleadings in the plaint filed
in O.S. No. 28 of 2008 and the plaint filed in O.S. No.
122 of 2008 are similar to some extent, the causes of
action are also identical. Rejecting the plaint in the
second suit i.e., O.S. No. 122 of 2008 would result in
depriving the respondent no. 1 from claiming the
relief of specific performance of the agreement for
sale dated 24.01.2007 and the cancellation of the
sale deed dated 24.01.2008. In this regard, we have
examined the entire factual matrix along with the
causes of action on which both the suits were
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founded, through a holistic reading of the plaints
placed before us. In our opinion, the reliefs in the
subsequent suit are in fact founded on a cause of
action which is distinct from that which is the
foundation of the former suit. The facts which are
necessary to be proved and the evidence to support
the claims in the second suit are also different from
that of the first suit. Therefore, it cannot be said that
the respondent no. 1 could have prayed for the
reliefs claimed in the subsequent suit at an earlier
stage."
26. For the bar of Order II Rule 2 of CPC to operate, the
defendants 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 claim in the
later suit is based there would be no scope for the application
of the bar. The factual matrix has to be carefully examined in
both the suits. For that, the pleadings in the previous suit must
necessarily be on the record as held by the Constitution Bench
of the Supreme Court in Gurbux Singh's case (supra). In view
of the aforesaid, the finding of the trial Court in the affirmative
on the issue that the suit is barred under Order II Rule 2 of CPC
cannot be sustained and it is therefore set aside. Therefore, the
first point for determination is answered in the negative, that is
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to say, that the trial Court incorrectly decided that the suit is
barred under Order II Rule 2 of CPC.
27. Now coming to the second point for determination,
Article 54 of the Schedule to the Limitation Act provides
limitation for specific performance of a contract which reads as
under:
Article Description Period of Time from which period
of Suit limitation begins to run
54 For specific Three years The date fixed for the
performance performance, or, if no such
of a contract date is fixed, when the
plaintiff has notice that
performance is refused.
28. The legal notice sent by the first defendant dated
10.05.1999 is Ex.D1, which is admitted by the plaintiff.
Reference is made to the agreement dated 14.10.1994 in the
legal notice and it is stated that the first defendant had
performed all the obligations cast upon him under the contract
and although he had executed in favour of the plaintiff, in
terms of the contract, a GPA, so as to facilitate him to obtain
the requisite sanction on his behalf, the plaintiff had chosen not
to obtain the requisite sanction from the authorities concerned
in the matter of putting up of the constructions over the plot,
which is the subject matter of the agreement aforesaid.
Therefore, while reserving right of the first defendant to
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proceed against the plaintiff for damages sustained, the first
defendant terminated the contract dated 14.10.1994 regarding
construction and development of the suit schedule 'C' property.
Accordingly, the GPA dated 14.10.1994 was stated to be
terminated.
29. In the aforesaid legal notice dated 10.05.1999, it is
clearly mentioned that the aforesaid agreement stood
terminated. Ex.P5 the deed of agreement for construction and
development is dated 14.10.1994 which is an unregistered
document. Therefore, the notice of termination Ex.D1 is a
notice by which the first defendant has refused performance of
the agreement. Therefore, time of three years for filing a suit
for specific performance of a contract in a case where time is
not the essence of the contract, would run when the plaintiff
has notice that performance is refused. PW.1 has admitted
receipt of the notice in his examination-in-chief. Therefore even
prior to the suit of 2000 seeking declaration and injunction, the
legal notice dated 10.05.1999 Ex.D1 was admittedly received
by the plaintiff. Thus, the suit of 2005 is held to be barred by
limitation. The second point for determination is therefore
answered in the affirmative, that is to say, that the trial Court
has correctly decided that the suit is barred by limitation.
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30. Since the second point for determination has been
answered in the affirmative, therefore there is no need to
answer the third point for determination.
31. In view of the aforesaid, we pass the following:
ORDER
The appeal is dismissed with cost.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
KSR
