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2018 (4) TMI 679 - SC - Indian LawsSuit for specific performance of the agreement - Respondent No.2 i.e. the alleged subsequent purchaser filed an application under Order 1 Rule 10 of the Code to become a party (defendant) in the suit - it was alleged that the suit in question (specific performance of agreement) is hit by the provisions of Order 2 Rule 2 of the Code because the relief of specific performance, which is claimed in the present suit could be and ought to have been claimed by the plaintiff - Sucha Singh in the previously instituted suit which he had filed for permanent injunction. Held that: - the Trial Court and the High Court erred in allowing the application filed by respondent No.2 under Order 7 Rule 11 of the Code and thereby erred in dismissing the suit as being barred by the provisions of Order 2 Rule 2 of the Code by taking recourse to the provisions of Order 7 Rule 11 of the Code. In our opinion, the provisions of Order 2 Rule 2 of the Code are not attracted to the facts of this case and, therefore, civil suit should not have been dismissed as being barred under Order 2 Rule 2 of the Code. It is clear from the reading of Order 2 Rule (1) of the Code that whenever the plaintiff files a suit on the basis of a cause of action pleaded in the plaint, he is under a legal obligation to include and claim all the reliefs against the defendant, which have accrued to him on the cause of action pleaded by him in his plaint - the sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff. Whether Sucha Singh (original plaintiff) could claim the relief of specific performance of agreement against the respondents/defendants in addition to his claim of permanent injunction in the previously instituted suit? - Held that: - the original plaintiff (Sucha Singh), in clear terms, had stated in the previous suit that he wants to withdraw the suit because he wants to file appropriate proceedings before the competent forum in relation to the subject matter of the suit. The Trial Court recorded his statement on 27.11.1998 and allowed withdrawal of the suit - reading of the statement of the original plaintiff (Sucha Singh) coupled with the permission granted by the Court to withdraw the suit satisfies the requirement of Order 23 Rule 1 (3) of the Code. Appeal allowed.
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