In a revision petition filed before the Punjab and Haryana High Court against an order dated 01-12-2023 by the Civil Judge (Junior Division), Gurugram, whereby the petitioner’s (defendant) application seeking rejection of a plaint under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC) was dismissed, a Single Judge Bench of Justice Pankaj Jain affirmed the Trial Court’s decision and dismissed the petition for lacking merit.
The parties to the petition were in dispute over the sale of an immovable property. A civil suit was filed by the plaintiff seeking a decree of declaration, possession, and specific performance with reference to a sale agreement dated 04-09-2019, claiming that the defendant (petitioner) had agreed to sell the disputed property in his favour for a consideration of Rs. 4,90,00,000/-. The suit was withdrawn after the plaintiff stated that the parties had settled the matter.
Another suit was instituted on 01-02-2023, in which the plaintiff sought specific performance of the oral settlement, contending that the sale agreement was replaced by the said settlement. The defendant filed an application under Order VII Rule 11 of the CPC seeking rejection of the said plaint and raised a bar provided under Order XXIII of the CPC. It was contended that once the plaintiff had withdrawn the earlier suit without liberty to file a fresh one, he could not bring in a fresh suit for the same cause of action.
The said application was rejected on the ground that since the plaintiff sought specific performance of the settlement, it could not be said that the suit was filed for the same cause of action, meaning that the bar under Order XXIII of the CPC would not be applicable.
Referring to Section 62 of the Indian Contract Act, 1872, the Court stated that if the parties to a contract agree to substitute a new contract for the original contract or to rescind or alter it, the original contract need not be performed. It was said that the plaintiff sought specific performance of the novated agreement, which, according to him, was arrived at by way of an oral settlement.
Hence, the Court found that the Trial Court had rightly dismissed the petitioner’s application under Order VII Rule 11, since the subsequent suit was not based on the original agreement to sell but on the substituted oral settlement. The Court dismissed the present petition for lacking merit.
Appearances:
For Petitioner – Mr. Vivek Goyal
For Respondent – Mr. Parmanand Yadav, Mr. Ambanshu Sahni
