Mst. NAZIMA BEGUM and others vs Mst. HASINA BEGUM and others
The matter concerns the maintainability of a suit for specific performance filed after the withdrawal of a prior suit for permanent injunction based on the same agreement of sale. The trial court rejected the plaint, citing the bar under Order II, Rule 2 of the Code of Civil Procedure 1908. The Additional District Judge reversed this decision and remanded the case, a view subsequently upheld by the High Court. The petitioners, who purchased the property in dispute, sought leave to appeal to the Supreme Court, arguing that the lower courts' findings contradicted established precedent regarding the application of Order II, Rule 2. The Supreme Court granted leave to appeal to examine whether the filing of the second suit for specific performance was legally competent after the withdrawal of the earlier suit for permanent injunction, specifically in light of the principles laid down in Aziz Ahmad and others v. Mst. Hajran Bibi and others (1987 SCMR 527). The Court stayed trial proceedings and ordered the maintenance of the status quo regarding possession pending the final disposal of the appeal.
- Is a suit for specific performance barred by Order II Rule 2 of the Code of Civil Procedure 1908 if a prior suit for permanent injunction based on the same agreement was withdrawn?
- Does the withdrawal of a suit for permanent injunction preclude a subsequent suit for specific performance regarding the same subject matter?
- Order II Rule 2, Code of Civil Procedure 1908
ORDER
' SAAD SAOOD JAN, J.--Respondent No,1 brought a suit for permanent injunction on the basis of an agreement of sale allegedly executed by respondents 2 to 6 in her favour. Later, she filed another suit for specific performance of the said agreement and then withdrew the suit for permanent injunction. A question arose before the trial Court whether the second suit was competent and not hit by the provision of Rule 2 of Order II, Civil Procedure Code. The trial Court held that the suit was not maintainable and rejected the plaint. Respondent No,1 filed an appeal before the Additional District Judge from the order of the trial Court. The learned Additional District Judge accepted the appeal and remanded the case to the trial Court for further proceedings. The petitioners who had purchased the property from the respondents Nos.2 to 6 filed a revision petition before the High Court but it was dismissed. They now seek leave to appeal from this Court.
2. In support of this petition it is contended that the view taken by the High Court and the learned Additional District Judge is contrary to the judgment of this Court in Aziz Ahmad and others v. Mst.
Hajran Bibi and others (1987 SC MR 527). This contention requires examination. Leave to appeal is granted. Security for costs in the sum of Rs,5,000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. The proceedings in the trial Court are stayed in the meanwhile. Status quo with regard to possession to be maintained during the pendency of this appeal.