HIGH COURT OF GUJARAT (D.B.

KAMLESHBHAI ATMARAM PATEL

Date of Decision: 11 August 2017

Hon'ble Judges: Anant S Dave, A Y Kogje

Acts Referred:
Code Of Civil Procedure, 1908 Sec 96, Or 2R 2, Or 7R 11
Transfer Of Property Act, 1882 Sec 3
Bombay Tenancy And Agricultural Lands Act, 1948 Sec 43
Gujarat Land Revenue Code, 1879 Sec 43, Sec 84(c)

Final Decision: Appeal allow ed

Advocates: Mihir Thakore, B B Naik, Parthiv B Shah, Abhisst K Thaker, Niral R Mehta, P C Kavina, Amrish K Pandya

Cases Referred in (+): 6

Judgement Text:-

A.Y. Kogje, J.

[1] The present appeal under Section 96 of Civil Procedure Code is preferred against the order dated 19.11.2015 passed by Civil Judge (Senior
Division), Ahmedabad (Rural) below application Exh.13 in Special Civil Suit No. 495 of 2015.
[2] The appellant is the original plaintiff w ho preferred a Suit for specific performance of contract and permanent injunction, w here defendant nos.
6 and 7 filed an application Exh.13 under Order-7 Rule-11 of Code of Civil Procedure (hereinafter referred to as 'the CPC' for the sake of brevity).
By the impugned order, 3rd Additional Senior Civil Judge, Ahmedabad (Rural) rejected the plaintiff's interim injunction application Exh.5 and at the
same time, granted the application Exh. 13 under Order-7 Rule-11 of CPC filed by defendant nos.6 and 7 thereby the suit of the plaintiff w as
rejected w ith costs. The appellant (hereafter referred to as 'the plaintiff' and respondents as 'the defendants' for the sake of brevity).
[3] The facts in brief are as under:-
3.1 The dispute is w ith regard to an agricultural land bearing Block No. 104 admeasuring 53369 sq.mtrs. situated at Village: Jagatpur, Tal.:
Daskroi, Dist.: Ahmedabad and w hich is now covered under Tow n Planning Scheme No. 65 bearing Final Plot No. 208 admeasuring 3217
sq.mtrs.
3.2. The suit is filed on the strength of an agreement to sale dated 25.08.2009 executed by the defendant no. 1 to 3 w ith the consent of
defendant no. 4 in favour of the plaintiff for a consideration of Rs.58,98,200/- and at the time of agreement to sale an amount of
Rs.11,00,000/- w as paid tow ards the part consideration. Alongw ith the agreement to sale, a declaration-cum-Indemnity bond w as also
executed by defendant no. 1 to 4, supplementary-cum- possession agreement w as also executed on the same day. It is the case of the
plaintiff that, under aforementioned document, the possession of the suit property w as handed over to him. The present Civil Suit being
Special Civil Suit No.495 of 2015 is filed for specific performance of contract.
3.3. Despite the above, the defendant no.1 to 4 executed a registered sale deed dated 13.07.2015 in favour of defendant no. 6 to 7 for
w hich Regular Civil Suit No. 589 of 2015 w as filed by the plaintiff for the protection of the possession of the plaintiff.
3.4 An application Exh.13 came to be filed by the defendant no.6 and 7 contending that the suit is barred under Order-2 Rule-2 of CPC, in
view of filing of Regular Civil Suit No. 589 of 2015 w hich is the suit for similar nature and also the suit is barred by law of limitation and Specific
Relief Act.
3.5 The 3rd Additional Senior Civil Judge, Ahmedabad (Rural) by an order dated 19.11.2015 rejected the application Exh.5 filed by the plaintiff
and allow ed application Exh.30 of the defendant no.6 and 7, thereby rejecting the plain under Order-7 Rule-11 of CPC.
[4] Relevant facts.
4.1. The Appeal from Order No. 357 of 2015 is also filed by the appellant against the same order, by w hich application Exh.5 of the plaintiff is
rejected. Therefore, by a separate order dated 27.01.2016, the Appeal from Order is appears to have been placed alongw ith the First Appeal.
Both the parties have no objection, if the First Appeal as w ell as the Appeal from Order are heard and disposed of together. That on
30.12.2005, the original ow ners i.e. defendant no.1 to 3 executed a registered sale deed in favour of one Patel Girishbhai Prahladbhai and
Patel Keshavlal Somdas in connection w ith the same land (Page no. 272 of the paper book).
4.2 The suit land being of restricted tenure, required permission under Land Revenue Code and since the same w as not taken, the
proceeding under Section 84 (C) of the Land Revenue Code w ere undertaken and by an order dated 21.12.2009 the transfer of the suit land
under the registered sale deed w as canceled and directions w ere given to put the land back its its original position w ithin a period of three
months. On 25.08.2009, Banakhat in favour of the plaintiff in connection w ith the suit land w as executed and alongw ith Banakhat, a
possession deed and declaration and indemnity bond w ere executed and general pow er of attorney of the same date w as executed in favour
of the plaintiff.
4.3 The defendant nos. 1 to 3 thereafter executed a registered Banakhat in favour of defendant no.6 (Page No. 374) and in favour of
defendant no. 5 (Page No. 136) in the year 2010.
 4.4 On 29.10.2011, a cancellation deed w as executed by Girishbhai Patel in w hose favour defendant nos. 1 to 3 had executed a registered
sale deed in the year 2005/2006.
4.5 On 19.05.2015, the Collector, Ahmedabad passed an order of declaring the suit land as non-agriculture, on the basis of the application by
defendant No.1 and others dated 29.02.2012 under Section 43 of the Land Revenue Code. Thereafter, on 08.06.2015, the sale deed w as
executed by the defendant nos. 1 to 4 in favour of defendant nos. 6 and 7 w hich became the subject matter of challenge of the suit filed by
the plaintiff being Regular Civil Suit No.589 of 2015.
4.6 On 22.08.2011, a draft tow n planning scheme w as formed, by w hich, the Suit land w as given Plot No. 104 Plan (page no. 337 and 342)
show s the existence of Plot No. 104. Referring to this plot, a letter addressed by the defendant no.7 to the tow n planning officer dated
24.08.2015 (Page no. 500) refers too and admits the possession of the plaintiff in the form of existence of some cabins w hich is also show n in
the photographs (Page no. 227).
[5] Contentions of the plaintiff
5.1. It is submitted that the trial Judge has committed error in applying Order-2 Rule-2 of CPC and holding that the present Suit being Special
Civil Suit No. 495 of 2015 is hit by Order-2 Rule-2, in view of filing of Regular Civil Suit No. 589 of 2015. It is contended that, plain reading of
the Plaint in both the suits, w ould reveal that, cause of action for filing of the suit and the relief prayed for are quite distinct and separate. As
the plaintiff appellant w as put in possession, since long under valid document, there w as no reason for the plaintiff to institute any
proceedings, but on getting the know ledge of the execution of sale deed of the suit land, the first and foremost step of the plaintiff w as to
protect his possession from bing dispossessed on the strength of the execution of the sale deed of w hich the know ledge w as received by the
plaintiffs, w hereas the 2nd Suit w as filed for specific performance on the strength of document executed in the year 2009 in favour of plaintiff.
5.2 It is submitted that the cause of action and prayer clause in Special Civil Suit No.495 of 2015 is quite different from that of Regular Civil
Suit No.589 of 2015. Learned Senior Advocate took this Court through the relevant clauses of both the plaints pertaining to cause of action as
w ell as prayer clause. It is submitted that w hen the appellant received information about sale deed dated 20.09.2015 by defendant No.1 to 4
in favour of defendant Nos.6 and 7, that w as the cause of action as the plaintiff apprehended disturbance in his continuing possession and
occupation of the suit land and hence, Regular Civil Suit No.589 of 2015 w as filed w hereas in the present suit, w hich is for specific
performance of contract, cause of action is different and based on "Banakhat", the terms of w hich w ere sought to be specifically performed
upon failure of defendant Nos.1 to 3 to perform their part after the suit land w as declared NA.
5.3 It is further submitted that w hile passing the impugned order, Civil Judge has failed to consider the ratio of the judgment of the Apex
Court in the case of Rathnavathi & Anr. Vs. Kavita Ganashamdas , 2015 5 SCC 223, w herein the Apex Court has held that bar contained in O-2,
R-2 of the Civil Procedure Code is not attracted w here there is distinct and separate cause of action of filing of tw o suits. It is submitted that
the defendants have failed to show that the second suit w as also in respect of the same cause of action w hich is the basic requirement for
invoking O-2, R-2 of the Civil Procedure Code.

5.4 The other contentions of the plaintiff is that the learned Civil Judge has misinterpreted Article-54 of the Limitation Act, w hich is reproduced
herein-below :-

Description of suits Period of limitation Time from which period begins to run
54. For specific performance of a Three years The date fixed for the performance, or, if
contract no such date is fixed, w hen the plaintiff
has noticed that performance is
refused.

5.5 It is contended that Article-54 provides for tw o contingencies, viz. (i) w here the date is fixed for the performance of a contract, then the
period of limitation is three years from the date fixed, and (ii) w here no such date is fixed then the period is of three years w hen plaintiff
notices that performance is refused. In this case, the date of specific performance of the contract w as stipulated to be 3 months from the date
on w hich the land is converted from new tenure to old tenure and hence w hen the order of conversion from new tenure to old tenure is dated
19.05.2015 and the suit is filed on 06.10.2015, the Civil Judge ought to have held that the suit w as filed w ithin the limitation.
5.6 It is submitted that the Civil Judge has erroneously concluded that the date of registration deed is to be considered as date of deemed
know ledge and that is the date w hich is considered as the date of refusal on the part of the defendants to perform their part of contract to
start period of limitation. Referring to Section 3 of interpretation clause of the Transfer of Property Act, it is submitted that agreement to sale
cannot be termed as a transaction and therefore, Section 3 of the Transfer of Property Act w ould apply only to a "transaction". This contention
is erroneously concluded w ithout appreciating the same in true perspective and hence, error is committed w hen the transaction w ith
defendant No.5 dated 29.08.2011 w as treated to be the date on w hich know ledge of the plaintiff regarding refusal to part perform the
contract as per the agreement to sale is considered by the Civil Judge.

5.7 It is also contended that the learned Civil Judge has erroneously considered the ratio laid dow n in the case of Dilbu in interpreting the
date of deemed know ledge and has erroneously held that w hen transaction of 29.08.2011 w as w ithin the know ledge of the appellant
plaintiff, then that date ought to have considered as the date of know ledge of refusal to perform the part of their contract by the defendants,
the limitation therefore w ould start running from 29.08.2011 and hence the filing of the suit in the year 2015 w ould be beyond the period of
limitation prescribed.
5.8 Learned Senior Advocate for the appellant relied upon follow ing judgments in support of his argument regarding application of O-2, R-2 of
the Civil Procedure Code:-

I. In the case of Rathnavathi & Anr. Vs. Kavita Ganashamdas , 2015 5 SCC 223. It is submitted that similarity of ingredients for claiming reliefs
in the tw o suits is relevant over and above the cause of action, reliefs claimed and legal provisions applicable for grant of relief w ith factual
matrix of both the suits. Mere similarity in pleadings in the tw o suits is not relevant for avoiding bar of O-2, R-2.
II. In the case of Panchanan Dhara & Ors. Vs. Monmatha Nath Maity (Dead) through LRs. & Anr. , 2006 5 SCC 340, on the point of limitation
prescribed under Article 54 of the Limitation Act. It is contended that plea of limitation is a mixed question of law and fact especially
applicability of first part of the second part of Article 54 of the Limitation Act as the same w ould depend upon not only the nature of the
agreement but also on the conduct of the parties and also as to how the terms and conditions have been understood by the parties to the
agreement and hence, such an issue cannot be decided at the thrash hold to non-suit the plaintiff.
III. In the case of S.Brahmanand & Ors. Vs. K.R.Muthugopal (D) & Ors. , 2006 AIR(SC) 40, to submit that expression "date fixed for
performance" is a crystallized notion and the time from w hich period begins to run contemplated in part-2 in Article 54 refers to the cases
w here no such date is fixed. Therefore, for second part of Article 54 also, stress is on, w hen the plaintiff has noticed that the performance is
refused, w hich also requires ascertaining of definite point of time, w hich requires evidence to be led.

[6] As against this, learned Senior Advocate Mr.P.C.Kavina for respondent Nos.6 and 7 contented that the registration of Banakhat in the year
2010 is rightly to be considered and is considered as a notice to the plaintiff about the refusal of performance as contemplated under Article-54,
and therefore, period of limitation w as rightly considered to start running from that date and for that reason also, the Suit w as beyond the period
of limitation. It is submitted that, w hen the plaintiff's claim of 03.11.2010 some transaction took place w ith the defendant no.5 in connection w ith
the suit land and till 29.08.2011 w hen the cancellation of sale deed executed in favour of one Girishbhai took place, at least, betw een these tw o
dates, the plaintiff had the know ledge that the original ow ner (defendant nos. 1 to 4) have acted against the promises made by them in the
document executed in the year 2009, and therefore, know ledge of refusal to perform betw een the aforementioned tw o days w ould take the filing
of the suit beyond the prescribed limitation.
[7] It is submitted that, on the happening of the aforesaid events, i.e. to say execution of the registered Banakhat w ith the parties other than the
plaintiff, corresponding cancellation deed of the earlier registered sale deed w ould render the condition of the Banakhat in favour of the plaintiff
pertaining to conversion of the tenure of the land by an order from the Collector insignificant and it is feeble attempt of the plaintiff to base their
cause of action of the happening of the event i.e. the conversion of the tenure of the land.

[8] It is submitted that, the issue of possession as claimed by the plaintiff is not supported by any pleadings, no pleadings are found on record as
to how the plaintiff came in possession, the date on w hich, he gave the possession and his connection w ith the construction w hich is existing on a
particular survey number w hich vaguely the plaintiff's contended put on the survey number, for w hich the transaction has taken place in his favour.
[9] In so far as, Order-2 Rule-2 of CPC is concerned, the submission is made on behalf of defendants that, having failed to receive any permission
from the court, w here previous suit in connection w ith the same cause of action w as filed, the Civil Court w ould be precluded from entertaining the
subsequent suit. He submits that, on the basis of Section-10 of CPC that, the prayer and relief w hich w as available to the plaintiff at the time of
filing of first Suit, if not made, should necessarily be considered have to be relinquished for w hich no 2nd Suit can be permitted. Even if the sale
deed or "Banakhat" is entered, still, plaintiff w ill not have cause of action as the restricted tenure of the land w as not changed even w hen
subsequent documents w ere executed.

9.1 Learned Senior Advocate for the respondents relied upon the judgment of the Apex Court in the matter of Fatehji & Company Vs.
L.M.Nagpal, 2015 AIR(SCW ) 3401 and submitted that on the facts of the case before the Apex Court, w hich appeared to be similar to the facts
of the present case, the Apex Court has held the suit to be barred by limitation under Article 54 of the Limitation Act.

9.2 To the contention regarding applicability of O- 2, R-2 of the Civil Procedure Code, learned Senior Advocate Mr.Kavina relied upon judgment
of the Apex Court in the case of Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions Pvt. Ltd., 2013 1 SCC 625 and in the case of State
Bank of India vs. Gracure Pharmaceuticals Limited, 2014 3 SCC 595.
[10] Heard rival submissions of the parties.

[11] From the facts on record, follow ing chronology appears insofar as transaction of the suit land is concerned:-
I. The sale deed by defendant Nos.1 and 2 in favour of the plaintiff w ith confirmation of defendant No.4 is dated 25.08.2009 along w ith
declaration-cum-indemnity bond and supplementary-cum-possession agreement of the even date.
II. Prior to this "Banakhat", there existed a sale deed of 30.12.2005, registered on 13.01.2006 by defendant No.1 to 4 in favour of one Girish
Patel and Keshav Somdas. The procedure for cancellation of the deed of 2005 w as undertaken and by cancellation deed dated 29.08.2011,
sale deed of 30.12.2005, registered on 13.01.2006 w as cancelled. This w as on account of the order of the Mamlatdar & ALT dated 21.09.2009
in Tenancy Case No.17 of 2007, w hich cancelled the sale deed dated 30.12.2005, registered on 13.01.2006 in connection w ith the suit land as
the same w as in contravention w ith Section 43 of the Tenancy Act considering the suit land being of restricted tenure.
III. At the time of cancellation of deed, it appears that the amount w as paid to said Girish Patel and others by cheque draw n by the plaintiff in
favour of said Girish Patel.
IV. Another agreement to sale is executed by defendant No.1, 2 and 3 in favour of defendant No.5 dated 03.11.2010 and the Pow er of
Attorney of the even date in favour of defendant No.5.

V. Thereafter, on 19.05.2015, order of the Collector converting the suit land from new tenure to old tenure is passed.
VI. Thereafter, sale deed dated 08.06.2015 is executed by defendant Nos.1 to 4 in favour of defendant Nos.6 and 7. This sale deed is
executed by defendant Nos.1 to 4 themselves and not through Pow er of Attorney (defendant No.5). The first suit, i.e. Regular Civil Suit
No.589 of 2015 came to be filed first in point of time, w here the cause of action and the prayer clause are as under:- Cause of action:

"Though the occupancy and actual possession of the property has been handed over to the plaintiff on the basis of earnest money deed
dated 25/08/2009 executed in his favour as w ell as the w rite ups like declaration cum indemnity bond, supplementary cum possession
agreement and general pow er of attorney executed in that regard in his favour, the plaintiff came to know on 20/09/2015 about the act of the
respondents No. 1 to 4 against his procedure to get the titles of the property as marketable and clear and in connection w ith the same, they
carried out the procedure of cancelling the sale deed dated 29/08/2011 and carried out the procedure of executing the sale deed in favour of
the respondents No. 6 and 7 on 08/06/2015, thereby, their intention w as to usurp plaintiff's actual possession unlaw fully and therefore, the
cause has arisen for the plaintiff to file the present suit before the Hon'ble Court.
(13) Thus, it is prayed that :-

(A) Be pleased to pass decree in the form of declaration that since the agricultural land / property, as described in para-1 of suit application,
located in mauje village Jagatpur, in registration district subdistrict Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt,
upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., has been under direct
possession of the Plaintiff, that the sale deed executed, in collusion w ith each other, by the Respondents nos.1 to 4 and the Respondents
nos. 6 and 7, and registered vide sr.no.1185 on 08/06/2015 is illegal, null and void and not tenable.
(B) Be pleased to grant relief directing to execute the decree in the form of declaration in favour of Plaintiff in the case of agricultural land /
property located in mauje village Jagatpur, in registration district sub-district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring
5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., since the act of
the Respondents nos.1 to 4 and the Respondents nos. 6 and 7, in collusion w ith each other, to execute the sale deed in favour of the
Respondents nos. 5 and 6 and get the same registered vide sr.no.1185 on 08/06/2015 is illegal, therefore the Respondents nos.1 to 4 and
the Respondents nos.6 and 7 be restrained to act unlaw fully to snatch aw ay the said property w ithout due procedure from direct possession
occupancy of the Plaintiff, and despite the Respondents nos.6 and 7 do not have any right by virtue of their ow nership through the sale deed
executed in their favour, they, their relative and agents may be restrained to act in any manner to sell the said property.

(C) Be pleased to pass decree in the form of permanent injunction in the case of the land located in mauje village Jagatpur, in registration
district sub-district Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65
and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., w hich has been under ow nership right of the Plaintiff, by virtue of the
part performance of the Agreement executed by the Respondents nos.1 to 4 since 25/08/2009, therefore, the Respondents and their agents,
employees, relatives, be restrained from entering the said property jointly or individually and further restrain them from using or creating any
obstacle in the said property.
(D) Be pleased to pass the order as to costs from the Respondents of this case.

(E) Be pleased to grant any other relief as deemed fit and proper in the interest of justice."
 W hereas Special Civil Suit No.495 of 2015 came to be filed subsequently w here the cause of action and the prayer clause read as under:-
"(11) Cause of the Suit:- Though the plaintiff has occupancy and actual possession of property as an ow ner in accordance w ith earnest
money deed dated 25/08/2009 executed in his favour as w ell as the declaration cum indemnity bond, supplementary cum possession
agreement and general pow er of attorney executed in w riting in that regard and though the plaintiff has paid the consideration amount to
the respondent No- 5 for cancellation of the w rite up executed in favour of the respondent No-5 by the respondents No- 1 to 4 in connection
w ith the property in question, the plaintiff has received information that the respondent No-5 has uselessly spent time under the pretext of
cancelling the w rite up executed in his favour and the cause also arose, w hen the plaintiff received information that the respondents No. 1 to
4 and respondents No. 6 and 7, in collusion, have carried out the procedure w ith respect to the sale deed dated 13/07/2015 w ith an intention
not to implement earnest money deed executed in favour of the plaintiff. Therefore, the cause has arisen for the plaintiff to file this suit in the
jurisdiction of this Court for specific implementation of agreement and permanent relief in connection w ith the property in question.
(15) Thus, it is prayed that:-
(A) Be pleased to grant relief that, in connection w ith the agricultural land located in mauje village Jagatpur, in registration district sub-district
Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P. Scheme No.65 and thereby allotted
the Final Plot No.208 admeasuring 3217 sq.mt., by passing the order and decree, direct the Respondents nos.1 to 4 that in pursuance of the
Earnest Money Deed dated 25/08/2009 executed in favour of the Plaintiff, the Respondents nos.1 to 4 may jointly execute the Sale Deed in
favour of the Plaintiff, by accepting rest of the consideration amount from the Plaintiff, get the said sale deed registered in the office of the
Sub Registrar, and / or the Respondents nos.5 and 6 and 7 and / or the Respondents nos.6 and 7 may join as the consenting party regarding
execution of the said sale deed in favour of the Plaintiff.
Alternatively, if the Respondents nos.1 to 4 and the Respondents nos.5 and 6 and 7 and / or the Respondents nos.6 and 7 deny complying
w ith the decree executed, be pleased to pass the order and execute the decree appointing the Court Commissioner, w ho may comply w ith
the order of the Court to complete the procedure of accepting rest of the consideration amount, get the sale deed registered in the office of
the Sub Registrar, after executing in favour of the Plaintiff, and hand over direct possession occupancy of the property to the Plaintiff.
(B) Be pleased to pass decree in the form of permanent stay order in connection w ith agricultural land located in mauje village Jagatpur, in
registration district subdistrict Ahmedabad, taluka Daskroi, bearing Block No.104 admeasuring 5336 sqmt, upon being included in the T.P.
Scheme No.65 and thereby allotted the Final Plot No.208 admeasuring 3217 sq.mt., against the Respondents nos.1 to 4 and the Respondent
no.5 and 6 and 7 restraining them not to carry out any procedure of executing sale deed against sale of said property, Earnest Money Deed,
Development Agreement, W rite up in the form of Possession Receipt and any act to assign or transfer the said property, further restrain them
not to make modification in site condition of the suit property, get any procedure done in connection w ith its direct possession occupancy.
(C) Be pleased to pass the order as to costs from the Respondents of this case.
(D) Be pleased to grant any other relief as deemed fit and proper in the interest of justice."

[12] O-2, R-2 of the Civil Procedure Code bars second suit w ithout the leave of the Court for the reliefs w hich the plaintiff is entitled to make in
respect of the cause of action and that the suit shall include w hole of the claim w hich the plaintiff is entitled to make in respect of cause of action.
Sub-rule (3) of R-2 refers to entitlement of a person to claim more than one relief in respect of the same cause of action to sue for all or any of
such reliefs, but the reliefs w hich are omitted then to sue for such reliefs, leave of the Court is mandatory. In the instant case, w hat appears from
the relevant paras of the pleadings and the prayers, is that the subject matter of the suit is the same, i.e. the land in question is the same.
How ever, cause of action is different as w ell as relief claimed is also different.
[13] The Apex Court in the case of Rathnavathi has held that the basic requirement for invoking plea of O-2, R-2, burden is primarily on the
defendant to show that the second suit w as also in respect of the same cause of action, as on w hich the previous suit w as based. It is held that
w hen the cause of action to claim reliefs w as different and so also ingredients for claiming reliefs, plea of O-2, R-2 cannot be allow ed to be raised
by the defendants. The Apex Court has also held that pleadings of tw o suits, even if identical, w ould not be relevant for the purpose of attracting
O-2, R-2 and it is the cause of action w hich is material to determine applicability of O-2, R-2. In the instant case, in the first suit, the prayer is for
permanent injunction as the plaintiffs apprehended damage to their continuing and peaceful possession, so the cause of action, w hereas the
second suit is for specific performance of contract and the cause of action is non-performance of the part on behalf of the defendants necessitating
filing of the second suit.

[14] In the case of Virgo Industries (Eng.) P. Ltd. referred to by learned Advocate for the defendants, the Apex Court w as considering provisions
of O-2 in the context of the facts w here successive Civil Suits w ere filed w ith clear averments to the effect that after execution of the agreement to
sale dated 27.07.2015, the plaintiff received letter dated 01.08.2015 from the defendant conveying information that Central Excise Department
w as contemplating issuance of notice restraining alienation of the property. The advance amount w hich w as paid by the plaintiff to the defendant
w as also returned by cheque and therefore, such pleadings led the Court to conclude on facts that upon refund by the defendant of the agreed
amount, the intention of the defendant not to honour the agreement dated 27.07.2005 w as evident. The emphasis therefore w as on the w ord
"cause of action", w hich the Apex Court, relying upon the previous judgment accepted the meaning of the expression "cause of action" to be as
under:- "Cause of Action" has been defined as meaning simply a factual situation existence of w hich entitles one person to obtain from the Court a
remedy against another person. The phrase has been held from earliest time to include every fact w hich is material to be proved to entitle the
plaintiff to succeed, and every fact w hich a defendant w ould have a right to traverse. 'Cause of action' has also been taken to mean that particular
action the part of the defendant w hich gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely
the technical cause of action."
14.1 Therefore, even applying the meaning given to the phrase "cause of action", in the instant case, though the subject matter of the suit
may be the same, but the cause of action to pray for the reliefs as prayed for in the tw o separate suits in the facts of this case are different.

[15] Similarly, in the case of Gracure Pharmaceuticals Limited , the Apex Court examining applicability of O-2, R-2 after noting the facts, w here the
original suit No.1145 of 2003 w as filed by the respondent company on 15.05.2003 for recovery of an amount of Rs.44,30,994/- against the
appellant Bank and its officers tow ards the amount of letter of credit issued by CDN Paris and tow ards interest of delay in receipt of payment from
BNP Paribas w ith the cost of litigation and future interest w hereas Suit No.288 / 2003/2004 of 2004 w as also filed by the respondent company on
21.05.2003 claiming damage of Rs.3,09,000/- w ith interest and cost of litigation and future interest at 18% against the Bank and its officer for
w ithdraw al credit facility on 23.03.2002. The Apex Court in para-17 held that the facts, on the basis of w hich the suit w as filed, existed on the date
on w hich the earlier suit w as filed and there w as no fresh cause of action arose in the period betw een the tw o suits. Therefore, w hen the first suit
w as for recovery of dues, the damages sought for in the subsequent suit could also be prayed for as O-2, R-2 requires including the w hole of the
claim w hich the plaintiff is entitled to make in respect of the same cause of action. Here also, the emphasis of the Apex Court w as on "cause of
action".

[16] Hence, error is committed by the Civil Judge in concluding that the second suit, i.e. Special Civil Suit No.495 of 2015 is hit by O-2, R-2 and
consequently, by O- 7, R-11 as leave as contemplated under sub-rule (3) of R- 3 is not sought or granted by the Court to file subsequent suit, i.e.
Special Civil Suit No.495 of 2015.

[17] Insofar as contention relating to limitation to file the suit for specific performance of contract is concerned, the relevant date is considered by
the Civil Court is agreement to sale dated 03.11.2010 w ith defendant No.5 and the payment made by the plaintiff on 29.08.2011 to be the date of
know ledge of refusal to perform part of the contract on behalf of defendant Nos.1, 2 and 3. For this purpose, it may be relevant to refer to the
recitals in the agreement to sale dated 25.08.2009 by defendant Nos.1, 2 and 3 in favour of the plaintiff w herein clause-1 of the conditions
specifies that the tenure of the agreement w ould be for a period of three months from conversion to new tenure land to old tenure land. Clause-3
provides that the burden of conversion from new tenure to old tenure w as that of defendant Nos.1, 2 and 3. Clause-6 also provides for executing
sale deed of all the lands and fragments of the lands by executing a registered deed and accepting consideration after conversion from new
tenure to old tenure and such deed to be executed in favour of the plaintiff or representative of the plaintiff. Clause-9 provides that the
defendants w ould not encumber the suit land in any other manner and Clause-11 provides for proceeding against the party committing breach of
the conditions for the purpose of specific performance of contract.

[18] The fact of order of the Collector for converting the land from agricultural to non-agricultural dated 19.05.2015 becomes relevant especially
w hen in previous sale of 2005, sale deed w as ordered to be cancelled by the proceeding under the Tenancy Act under order dated 21.02.2009.
The plaintiff w as w ithin his right to w ait for conversion of the land, else no cause of action had arisen till such date. Any action on the part of the
defendants to dispose of the land by executing any document w hen there is no order of conversion of non-agricultural is of no consequence.
Certainly, action on the part of the plaintiff to clear the impediments arising out of the pre-existing sale deed cannot be considered as a relevant
date of know ledge of refusal by defendant Nos.1, 2 and 3 to perform their part to trigger off period of limitation. The subsequent sale deed of
2015 executed by defendant Nos.1 to 4 in favour of defendant Nos.6 and 7 after the order of conversion, the tenure of the land can be deemed to
be the date of know ledge on the part of the plaintiff about refusal by defendant Nos.1, 2 and 3 to perform their part of contract.
[19] The judgment in the case of Fatehji & Company , referred to by the defendants w ould not support their case as the Apex Court in this
judgment in para-60 has observed that the specific performance claimed on a w ritten agreement to sale dated 02.07.1973 and as per the terms of
performance of contract w as fixed till 02.12.1973, but defendants by subsequent letters dated 07.04.1975, 01.10.1975 and 01.08.1976 sought for
extension of time and lastly, such extension had expired on 01.02.1977 and the suit for specific performance w as filed on 29.04.1994, w hich the
Apex Court, on facts, held to be much beyond the period of three years prescribed and therefore, in view of the concurrent findings of tw o Courts
below regarding possession delivered in part performance of the agreement or otherw ise w ould not be of any consequence w here the date on
w hich cause of action has arisen is to be determined.
[20] In view of the aforesaid, even on the count of limitation, the suit by the plaintiff cannot be held to be barred by limitation so as to non-suit
the plaintiff under O-7, R-11 of the Civil Procedure Code.
[21] As is held in the case of S.Brahmanand In the instant case also, even if contention of the defendant regarding know ledge of refusal is to be
accepted, but the same is required to be established by leading cogent evidence and cannot be presumed to nonsuit the plaintiff.
[22] From the facts of this case, a very peculiar situation exists. The Civil Court could not have dismissed the Civil Suit under O-7, R-11 by
resorting both to O-2, R-2, CPC and Article 54 of the Limitation Act. For applying bar of O-2, R-2, CPC, the cause of action arose on 08.06.2015
w hen subsequent sale deed is executed for applying bar under the Limitation Act, the cause of action deemed to have occurred on 29.08.2011 (as
recorded in the impugned judgment) w hen plaintiff gave Rs.10 lakhs by cheque to defendant No.5 for cancelling the registered sale deed dated
03.11.2010 in favour of defendant No.5. The Court therefore has committed an error by accepting tw o separate causes of action, yet applying bar
of O-2, R-2 on one hand and on the other hand, accepting the cause of action to arise on 08.06.2015 and yet invoking O-7, R-11 on the ground of
limitation.
[23] The Court below has also fallen in error to hold that the suit is hit by O-7, R-11, yet proceeded to frame issues for dealing w ith application
Exh.5 under O- 39, CPC and give findings of facts on the issue of balance of convenience, irreparable loss and prima facie case. This, in opinion of
this Court, w as unw arranted.
[24] In view of the aforesaid, impugned order dated 19.11.2015 passed by the Civil Judge (SD), Ahmedabad Rural below application Exh.13 in
Special Civil Suit No.495 of 2015 is hereby quashed and set aside. The First Appeal is hereby allow ed.

[25] Order dated 19.11.2015 passed by the Civil Judge (SD), Ahmedabad Rural below application Exh.5 in Special Civil Suit No.495 of 2015 is also
quashed and set aside. It is directed that application Exh.5 be heard a fresh on its merits and w ithout being influenced by any of the observations
made in this judgment and order. The application Exh.5 be decided preferably w ithin 8 months from today. The Appeal from Order is also allow ed.
[26] Civil Applications do not survive in view of the order passed in the First Appeal and the Appeal from Order. Disposed of accordingly.

At this stage, learned Senior Advocate Mr.P.C.Kavina appearing for the defendants prayed for stay of this order for a period of four w eeks, to
w hich learned Senior Advocate Mr.Naik for the appellant objected.
Considering the facts and circumstances of the case, w e are not inclined to grant prayer made by learned Senior Advocate Mr.Kavnia.