Judgment Intelligence
Petition Allowed- Court
- Supreme Court of India
- Date of Decision
- 29 September 2026
- Bench
- Justice J.B. Pardiwala and Justice K. Vinod Chandran
- Relevant Acts & Sections
- Code of Civil Procedure, 1908 — Order II Rule 2, Order XXIII Rule 1(3)
Appeal allowed. The trial court's decree and the High Court's judgment were set aside and the suit for specific performance dismissed; as no payment of advance was proved, no refund arises. Parties bear their own costs (paras 39-40).
Key holdings
- The Order II Rule 2 bar applies where the same cause of action entitled the plaintiff to specific performance in the earlier suit (paras 8-9, 24).
- Leave must be obtained when the first suit is instituted; liberty to file afresh on withdrawal does not cure its absence (paras 25-27).
- Order XXIII Rule 1(3) allows a fresh suit for the same subject matter, not a new relief (para 26).
- An oral agreement to sell needs strict proof of a concluded contract; an unpresented advance cheque points the other way (paras 3, 33).
- Evasive answers by defence witnesses cannot establish the plaintiff's case, and a witness's status adds no weight (paras 35-36).
Brief Facts
Court's Findings
Legal Principle
Precedents Relied Upon
- Brij Mohan & Ors. v. Smt. Sugra Begum & Ors. (1990) 4 SCC 147
An agreement to sell immovable property need not be in writing, but a plaintiff relying on an oral agreement bears a heavy burden to prove a concluded contract on all vital terms.
- K. Nanjappa (Dead) by LRs v. R.A. Hameed @ Ameersab (Dead) by LRs & Anr. (2016) 1 SCC 762
Reiterates Brij Mohan; a concluded contract must be strictly proved and cannot be inferred.
- Gurbux Singh v. Bhooralal 1964 SCC OnLine SC 101
Constitution Bench: the Order II Rule 2(3) bar needs the same cause of action, entitlement to more than one relief, and omission without leave; it must be established, not inferred.
View all precedents (11)
- Gurinderpal v. Jagmittar Singh (2004) 11 SCC 219
Inferred leave from a withdrawal to file a fresh suit; that inference runs contrary to the Constitution Bench in Gurbux Singh.
- Vurimi Pullarao v. Vemari Vyankata Radharani (2020) 14 SCC 110
Where the cause of action for specific performance had arisen when the injunction suit was filed, the later suit is barred by Order II Rule 2(3).
- Vimlesh Kumari Kulshrestha v. Sambhajirao & Anr. (2008) 5 SCC 58
Concerned Order XXIII Rule 1(3)(b) where the second suit was filed before withdrawal of the first; no application here.
- Cuddalore Powergen Corporation Ltd. v. M/s Chemplast Cuddalore Vinyls Ltd. & Anr. 2025 INSC 73
Explains "cause of action" for Order II Rule 2; the bar was not applied where specific performance was legally unavailable when the first suit was filed.
- Virgo Industries (Eng.) Pvt. Ltd. v. Venturetech Solutions Pvt. Ltd. (2013) 1 SCC 625
Injunction suits based on facts furnishing a complete cause of action for specific performance bar later specific performance suits filed without leave.
- Inbasagaran v. S. Natarajan (2015) 11 SCC 12
The bar did not apply where the cause of action for specific performance arose only after the first suit was filed.
- Rathnavati v. Kavita Ganashamdas (2015) 5 SCC 223
The bar did not apply where the sale to a third party was first disclosed in the written statement in the injunction suit.
- Sucha Singh Sodhi (Dead) through LRs v. Baldev Raj Walia (2018) 6 SCC 733
Order II Rule 2(2) applies only if the omitted relief was available on the cause of action pleaded in the earlier suit.
