Res Judicata | Suit For Specific Performance Barred If Relief Was Available In Prior Suit For Permanent Injunction And Not Claimed: Supreme Court

"The sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff." Supreme Court, in a judgment dated September 29, 2026, held that a subsequent suit for specific performance is barred by Order II Rule 2 of the Code of Civil Procedure (CPC) if the plaintiff, while filing an earlier suit for permanent injunction on the same cause of action, failed to claim the relief of specific performance or obtain leave of the Court to sue for it later.

A bench of Justices J.B. Pardiwala and K. Vinod Chandran observed that the rigour of the rule cannot be bypassed when the cause of action for both reliefs had already crystallized at the time of the first suit.

Strict application of Order II Rule 2 CPC

The bench emphasized that the primary requirement for invoking the bar under Order II Rule 2(2) is that the relief claimed in the second suit must have been available to the plaintiff in the previous suit based on the facts and pleadings then on record. The Court reiterated that the mandate of the provision is to prevent a multiplicity of litigation by compelling the plaintiff to include the whole of the claim to which they are entitled in respect of the same cause of action.

Withdrawal of suit does not cure the failure to seek leave

The Court further clarified that where a plaintiff omits to sue for a relief or fails to obtain the court’s leave at the time of filing the initial suit, a subsequent withdrawal of the first suit with a prayer to file a fresh one does not cure the fundamental defect. While observing that liberty to file a fresh suit may be inferred from a withdrawal pursis, the Court held that this does not mitigate the failure to seek the specific relief of performance when it was rightfully available to the plaintiff at the inception of the litigation.

No adverse inference can be drawn from evasive defence

Addressing the evidentiary merits, the Court rejected the contention that the defendants' evasive conduct during cross-examination should automatically lead to a finding in favour of the plaintiff. It noted that the burden of proof to establish a concluded oral contract rests entirely on the plaintiff. The bench observed that the testimony of defence witnesses being inconsistent or evasive cannot serve as a substitute for the plaintiff’s failure to prove the essential terms of an agreement by cogent and reliable evidence.

"The plaintiff could not establish a concluded contract and emphasis in the impugned judgments were more on the dishonest and evasive stance of the defendants who mounted the box, which cannot lead to any adverse inference against them."

Absence of pleadings proves fatal to claim

The Court noted that there were significant inconsistencies regarding the number of meetings and the specific date of refusal, which were not properly explained in the pleadings. The bench underscored that the trial and appellate courts committed a perverse error by relying on oral testimonies that lacked foundational support in the plaint. The Court emphasized that there can be no proof offered without specific pleadings, particularly when the claimant seeks to establish an oral contract for the sale of immovable property.

Specific performance claim failed to be established

The bench further pointed out that the failure to present a cheque of Rs. 5 crores for encashment, despite alleging it was given as an advance, was a clear indication that no concluded contract existed between the parties. Furthermore, the Court dismissed the reliance on the son-in-law of a key respondent to bind the company, noting that he had no official authorization to contract on behalf of the company. Consequently, the Supreme Court allowed the appeal, set aside the concurrent findings of the lower courts, and dismissed the suit for specific performance.

Date of Decision: 29 September 2026