The Supreme Court on Tuesday (September 29) has observed that an injunction suit simpliciter filed without the Court's leave under Order 2 Rule 2 of the Code of Civil Procedure, while omitting the relief of specific performance, cannot be withdrawn to file a fresh suit seeking that omitted relief under Order 23 Rule 1 of the CPC.

The Court held that even where leave to file a fresh suit is obtained under Order 23 Rule 1 at the time of withdrawal of the initial suit, a second suit seeking the relief omitted in the initial suit would not be maintainable, on account of the bar under Order 2 Rule 2. This is because the plaintiff's failure to obtain the Court's leave under Order 2 Rule 2 at the time of filing the initial suit, permitting the omitted relief to be claimed in a subsequent suit, would bar the second suit seeking that omitted relief.

Order 2 Rule 2(3) of the CPC states that if a person is entitled to more than one relief based on the same cause of action, they may sue for all or any of those reliefs, but if they omit to sue for any of them without the court's permission (leave), they cannot file a later suit to claim the omitted relief.

On the other hand, Order 23 Rule 1(3) of the Code of Civil Procedure (CPC), 1908, allows a plaintiff to withdraw a suit or part of a claim with the permission of the court and the liberty to file a fresh suit on the same subject matter.

In a nutshell, the Court said that a plaintiff cannot use Order 23 Rule 1(3) as a substitute for leave under Order II Rule 2(3).

A bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran heard the dispute that arose from an alleged oral agreement concerning the sale of immovable property.

The plaintiff had initially instituted a suit seeking a permanent injunction. It was subsequently withdrawn with liberty to institute a fresh suit. The plaintiff thereafter instituted the second suit seeking specific performance of the alleged oral agreement.

Aggrieved by the trial court and Gujarat High Court's order granting a relief to the Respondent no.1-plaintiff, the property purchaser moved to the Supreme Court.

Setting aside the impugned findings, the judgment authored by Justice Chandran observed that since no leave was obtained by the plaintiff under Order 2 Rule 2 CPC while filing an injunction suit simplicitor to seek an omitted relief in a later suit, the second (fresh) suit, after withdrawal of the initial suit would be in teeth of Order 2 Rule 2.

“No leave was sought at the time of filing of the suit and the liberty sought at the time of withdrawal does not cure the defect of leave to be obtained at the time of institution of the suit.”, the Court observed.

“The second suit clearly attracts the bar under Order II Rule 2. Order II Rule 2 applies when a prior suit is filed and withdrawn to file a fresh suit, when in the prior suit the entire reliefs entitled and available to the plaintiff are not sought; in which event, the second suit would be maintainable only if at the time of filing of the suit, the plaintiff had obtained leave of the Court to agitate the reliefs not claimed at the appropriate time.”, the Court added.

The Court rejected the argument that the liberty obtained while withdrawing the first suit under Order 23 Rule 3 could cure the omission to seek specific performance.

“In the present case, obviously there was no leave taken when the first suit was instituted; but the relief of specific performance was entitled and available at that point of time. The suit was withdrawn on the ground of running settlement talks, with demand to file a fresh suit. Order XXIII Rule 3 only enables the plaintiff to file a fresh suit with the prayer for injunction and not with the additional prayer for specific performance. We also take note of the submission of the respondent that the fresh suit was filed when an amendment could have been sought in the first suit; but the fact remains that was not done and hence, is in the teeth of the rigour of Order II Rule 2.”, the Court said.

As a result, the appeal was allowed, resulting in dismissal of the second suit for specific performance.

Cause Title: Bombay Garage Ahmedabad Limited & Ors. Versus J P Iscon Private Ltd. & Anr.

Citation : 2026 LiveLaw (SC) 1000

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Appearance:

For Petitioner(s) : Mr. Mihir Thakore, Sr. Adv. Mr. Ajay Mehta, Adv. Mr. Harshvardhan Jha, Adv. Mrs. Yugandhara Pawar Jha, AOR Mr. Anmol Mehta, Adv. Ms. Shruti Sharma, Adv. Mr. Aman Pathak, Adv. Mr. Onkar Singh, Adv. Ms. Avni Singh, Adv. Ms. Ragini Sachdeva, Adv. Mr. Ramesh Kumar Sachdev, Adv. Mr. Raj Narayan Pal, Adv.

For Respondent(s) : Mr. Devan Parikh, Sr. Adv. Mr. Amit Thakkar, Adv. Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Rutul Desai, Adv. Ms. S. Lakshmi Iyer, Adv. Ms. Deepsikha Mishra, Adv. Mr. E. C. Agrawala, AOR