BY AD vs SRI.P.M.JOSHI

whereby it is alleged that the defendant has agreed to execute sale deed in respect of the plaint schedule property, having an extent of 7 ¼ cents, at the rate Rs.55,000/- per cent. According to the plaintiff, at the time of execution of the agreement, Rs.50,000/- was paid to the defendant as advance and thereafter on 06.10.2010, Rs.15,000/- was also given being part of the sale consideration. Even though, the plaintiff has been ready and willing to perform his part of the contract in the matter of execution of the sale deed by paying the balance consideration, the defendant failed to execute the sale deed. Accordingly, the plaintiff sought the relief of execution of the agreement or in the alternative, to get back the advance amount.

5. Defendant filed written statement and resisted the suit, disputing execution Ext.A1 agreeing to sell the plaint schedule property. According to the defendant, her husband had borrowed Rs.50,000/- from the plaintiff on 26.08.2010 for the construction of residential building and as demanded by the plaintiff Ext.A1 agreement was executed as a security R.F.A. No. 82 of 2017 4 document. The defendant also raised contention that the suit is barred under Order II Rule 2 of CPC, in view of filing of earlier suit vide O.S. No.340/2011 by the plaintiff, seeking the relief of injunction and filing of the present suit, after withdrawing the same, without seeking permission of court to file a fresh suit for specific performance.

6. The trial court raised necessary issues and tried the matter. PWs 1 to 3 were examined and Exts.A1 to A5 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B3 were marked on the side of the defendant.

7. Finally, in paragraph No.11 of the judgment, the trial court found that the second suit filed by the plaintiff seeking the relief of specific performance, based on Ext.A1 agreement is clearly hit by Order II Rule 2 of CPC. Thereafter, on finding proof of execution of Ext.A1, the trial court granted the alternative relief of return of advance amount, with 12% interest from the date of the suit till realization.

8. While assailing the verdict of the trial court, the learned counsel for the plaintiff submitted that, the finding of the trial court, holding the view that the present suit is R.F.A. No. 82 of 2017 5 hit under Order II Rule 2 of CPC is wrong. He submitted further that, as per the evidence tendered by the plaintiff as PW1, supported by the evidence of PW2, the scribe and PW3, the document writer, the execution of Ext.A1 agreement is proved. That apart, readiness and willingness on the part of the plaintiff also is proved. Therefore, the relief of specific performance ought to be granted by the trial court. The learned counsel for the plaintiff has placed decision of the Apex Court reported [MANU/SC/0979/2014 : (2015) 11 SCC 12] Inbasegaran v. S. Natarajan, to contend that, since the cause of action for filing the first suit seeking the relief of injunction is not the cause of action for filing the second suit for specific performance, the present suit is not hit under Order II Rule 2 of CPC.

9. Whereas, the learned counsel for the defendant strongly supported the finding of the trial court holding the view that, the suit is barred by Order II Rule 2 of CPC, while conceding that even now also the defendant is ready to pay the advance amount ordered to be returned by the trial court. The learned counsel for the defendant has placed R.F.A. No. 82 of 2017 6 decision of the Apex Court reported in [2019 ICO 3246 :