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2016 (7) TMI 1569 - HC - Indian LawsMaintainability of suit - specific performance while filing the earlier suit not filed - fresh injunction suit - whether owing to the appellant/plaintiff having omitted to sue for the relief of specific performance while filing the earlier suit, the appellant/plaintiff was precluded from afterwards suing for the relief of specific performance? - HELD THAT:- As per the own case of the appellant/plaintiff, (i) the date fixed in the bayana agreement of which specific performance was sought, was end of January, 2012; (ii) the appellant/plaintiff had approached the respondent/defendant for performing her part of the agreement to sell but the respondent/defendant had refused; (iii) the appellant/plaintiff had also got issued a legal notice to the respondent/defendant to perform her part of the agreement and in response thereto also the respondent/defendant had refused to perform her part of the agreement; (iv) that the respondent/defendant had become dishonest and was wanting to evict the appellant/plaintiff from the suit property of which possession had been given in pursuance to the agreement to sell and to sell the suit property to defeat the agreement of sale thereof in plaintiff's favor - It is not the case of the appellant/plaintiff that after the institution of the earlier suit for injunction she had approached the respondent/defendant to perform her part of the agreement or that the respondent/defendant had refused or that anything else had happened after the institution of the suit for injunction which may have furnished a cause of action for the suit for specific performance - Rather it is the express case of the appellant/plaintiff that she was filing the suit for specific performance after withdrawing the earlier suit for permanent injunction with liberty to file a fresh suit. The question is answered in favour of the respondent/defendant and against the appellant/plaintiff and also it is held that the suit from which this appeal arises was barred by Order II Rule 2 of CPC. Whether the liberty granted "to file fresh suit" at the time when the earlier suit was withdrawn is confined to a fresh suit for the same relief which was claimed in the earlier suit or entitles the appellant/plaintiff to in the fresh suit also add the relief of specific performance of agreement to sell? - HELD THAT:- The suit from which this appeal arises was being taken up along with a suit for ejectment of the appellant/plaintiff from the premises filed by the respondent/defendant. The agreement to sell of which the appellant/plaintiff claims specific performance is not a registered one. The appellant/plaintiff cannot thus be said to be in possession of the premises in part performance of the agreement to sell and benefit of Section 53A of the Transfer of Property Act, 1881 would thus not be available. Thus, while allowing the appeal, it is clarified (i) that the pendency of the suit for specific performance will not come in the way of the suit for ejectment filed by the respondent/defendant against the appellant/plaintiff and/or in execution of the decree therein; and, (ii) it will be open to the respondent/defendant to apply to the Trial Court for an order that the provisions of Section 52 of the Transfer of Property Act, 1881 and the principle of lis pendens would not be attracted by the pendency of the suit for specific performance. Appeal allowed.
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