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Date of Decision: 25th February, 2013
PURAN CHAND …… Appellant
Through: Mr. P.K.Gulia, Advocate.
Through: Mr.Manoj, proxy counsel
V.K. SHALI, J. (ORAL)
JUDGMENT
1. Both the learned counsel for the appellant as well as proxy counsel for the respondent pray for an adjournment on the ground that the parties are trying to settle the matter.
2. The request of the learned counsel for the parties for adjournment cannot be allowed on account of the fact that this is a regular second appeal pending for the last more than 12 years without formulating any substantial question of law. 2013:DHC:1037
3. The learned counsel for the parties have failed to assist the Court in formulating any substantial question of law purported to be arising from the said regular second appeal.
4. The substantial question of law which is purported to have been formulated in the appeal is as under: “Whether the ADJ erred in not appreciating the contention of the appellant that the cause of action for filing the suit for injunction was different from the suit for recovery?”
5. The aforesaid question is essentially a question of fact which has been answered by the appellate Court against the appellant/plaintiff stating therein that in terms of Order 2 Rule 2 CPC, the suit of the plaintiff should contain the whole of the claim. Admittedly, in the instant case, a sum of `75000/- is purported to have been paid by the appellant /plaintiff to the respondent /defendant in pursuance to the agreement to sell and the defendant /respondent is purported to have executed an agreement to sell in favour of the petitioner/plaintiff in respect of his property. When the defendant /respondent had backed out of the agreement, the plaintiff had chosen to file a suit for specific performance, he ought to have included the relief of claim, recovery of the amount paid to him to the respondent/defendant in the said suit. Since this has not been done, it is assumed that the appellant /plaintiff had given up the claim of recovery and was banking only on specific performance. Once this was done by the appellant, he could not have chosen to file subsequent thereto, an independent suit for recovery of the aforesaid amount. This is what is prohibited under Order 2 Rule 2 CPC and this is preciously what the appellate Court has held.
6. I do not find any substantial question of law arising from the said regular second appeal and accordingly, the same is dismissed. V.K. SHALI, J. FEBRUARY 25, 2013 RN