Summary
The Supreme Court restored the specific-performance suit rejected under Order VII rule 11. On the pleaded facts, the earlier injunction suit concerned threatened dispossession and a distinct cause of action, so Order II rule 2 did not bar the later contractual claim. The withdrawal order, read with the plaintiff’s recorded intention to seek appropriate relief before the competent forum, also permitted the fresh suit. Merits were left for trial, preferably within one year.
Issues
- Whether omission of specific performance from the earlier possession-injunction suit attracted Order II rule 2.
- Whether the withdrawal order and recorded statement permitted a fresh suit.
- Whether the Supreme Court should decide the contract merits.
Provisions considered
- Order II rule 2(1) and (2), Code of Civil Procedure, 1908The quoted provisions concerning inclusion and relinquishment of claims required comparison of the causes of action and reliefs available on the earlier pleaded cause. The bar was not attracted on these facts. (¶¶ 23, 24, 25, 26, 27, 28, 31, 35, 37)
Held
- The later relief had to have been available on the cause of action pleaded in the earlier suit for the asserted bar to operate. Here the injunction addressed threatened dispossession, whereas specific performance depended on the contract’s performance becoming due or being refused. The Court treated the causes and essential facts as distinct. (¶¶ 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37)
- The absence of formulaic liberty language in the withdrawal order was not decisive. Read together, the plaintiff’s statement seeking withdrawal to pursue appropriate proceedings and the court’s permission met Order XXIII rule 1(3) in this case. (¶¶ 38, 39, 40, 41, 42, 43, 44)
- The Court rejected the Order VII rule 11 application and restored the suit. It refused to determine substantive contract issues, directing the trial court to decide them independently and expeditiously, preferably within one year. (¶¶ 21, 22, 45, 46, 47, 48, 49)
Result
Appeal allowed; rejection of plaint set aside and Order VII rule 11 application dismissed. Specific-performance suit restored for trial on merits, preferably within one year.