JUDGMENT 1. THE suit has been transferred to this Court pursuant to an order dated april 13, 2006 made in ALP No. 4 of 2005. The order of transfer required the first defendant's demurrer application then pending before the Alipore Court to also stand transferred to be decided by this Court. GA No. 2317 of 2006 is the fourth defendant's application for rejection of the plaint. GA Nos. 3197 of 2006 and 2584 of 2007 are the plaintiff's applications for interlocutory reliefs. 2. THE fourth defendant has applied for rejection of the plaint relating to this suit for specific performance of an agreement and/or for dismissal of the suit on three-fold grounds. The fourth defendant says that in view of an earlier suit for specific performance of the same agreement having been withdrawn by the plaintiff without liberty to file afresh, the plaintiff cannot maintain this subsequent action. The fourth defendant claims that even if the suit were otherwise maintainable, it is ex facie barred by the laws of limitation. Finally, the fourth defendant seeks to demonstrate that in view of the admitted conduct of the plaintiff evident from the plaint, the plaintiff is disentitled by the provisions of the Specific Relief Act, 1963 from claiming specific performance. To appreciate the grounds that the defendants urge to bring the suit to an untimely conclusion, it is necessary to assess the plaintiff's case. The plaintiff says that by a writing of March 3, 1968 the plaintiff agreed to purchase a piece of land at Kasba from the defendants or their predecessors-in-interest. The plaintiff says that out of the plot of 85 bighas and a bit, the proposed transferors agreed to carve out 78 bighas for transfer thereof to the plaintiff at Rs. 2,800/- per bigha adding up to Rs. 2,18,400/ -. According to the plaintiff, the proposed transferors were to execute the conveyance in favour of the plaintiff or its nominee 'within six months upto the limit of 12 months' from the date of the agreement. The document of March 3, 1968 is in Bengali and an inaccurate English translation thereof has been produced by the plaintiff. 3. THE plaintiff says that it paid Rs. 15,000/- by way of initial consideration and further sums till 1974 totaling to Rs. The document of March 3, 1968 is in Bengali and an inaccurate English translation thereof has been produced by the plaintiff. 3. THE plaintiff says that it paid Rs. 15,000/- by way of initial consideration and further sums till 1974 totaling to Rs. 1,16,800/-and was always ready and willing to pay the balance amount to obtain absolute rights in respect of the 78bigha plot but the defendants prevented the plaintiff obtaining the land. 4. THE plaintiff cites sundry expenses incurred for improving the property. The plaintiff claims to be in possession since 1968. The plaintiff says that prior to the agreement of 1968 the entirety of the plot stood vested in the State under the west Bengal Estates Acquisition Act, 1953 and the proposed transferors had concealed that proceedings had been launched in 1967 for such purpose. Upon the plaintiff coming to know of the vesting, it applied for a long lease under the state and the State granted a lease of much shorter duration. The defendants herein and/or the owners of the land challenged the order of vesting and settlement by way of proceedings under Article 226 of the constitution of India before this Court where the plaintiff was added as a party. The writ petition was disposed of by directing the defendants herein and/or the owners to submit the relevant 'b' form afresh. Both the State and the plaintiff preferred appeals from the order of September 24, 1998 by which the writ petition was disposed of. 5. THE earlier suit, TS No. 127 of 1995, was filed before the District Court at alipore seeking the following reliefs: ' (a) for passing a decree for Specific Performance of Contract dated 3. 3. 68 in favour of the plaintiff. (b) for a direction upon the defendants to execute and register the deed of conveyance or conveyances in favour of the plaintiff or its members on taking the balance consideration money failing which the plaintiff may be directed to deposit the balance consideration money in court and the learned court may be pleased to execute and register the deed of conveyance or conveyances in favour of the plaintiff. (c) for temporary/ad interim injunction. (d) for passing a decree for all costs, incidental charges and expenses to the suit. (e) for such further or other relief or reliefs the plaintiff may otherwise be entitled to law and in equity. ' 6. (c) for temporary/ad interim injunction. (d) for passing a decree for all costs, incidental charges and expenses to the suit. (e) for such further or other relief or reliefs the plaintiff may otherwise be entitled to law and in equity. ' 6. WITHIN six weeks of instituting the suit, the plaintiff filed for leave to withdraw it with liberty to sue afresh. Such application appears to have been filed on September 4, 1995. It is of no importance as to why the plaintiff was minded to jettison its action and of no relevance, for the purpose of the present applications, that the plaintiff had obtained a lease under the State upon the state taking over the land. The appeals from the order passed on the owners' writ petition failed and the matters were carried to the Supreme Court. The appeals before the Supreme court by the plaintiff and by the State were dismissed on April 16, 2003 and the judgment is reported at (2003) 9 SCC 253 (W. B. Govt. Employees (Food and supplies) Co-op. Housing Society Limited v. Sulekha Pal (Dey). Paragraph 22 of the report is relevant in the present context: '22. The Division Bench of the High Court has made it clear in the concluding portion of its order that they have not decided the question of the legal effect of the agreement for sale entered into by and between the writ petitioners and the appellant Society. We also leave such questions open since they are outside the purview of the real issues involved in these proceedings under the Estates Acquisition Act. It is for the parties to vindicate their rights, if any, in the manner known to and in accordance with law. ' (Emphasis supplied) 7. AT paragraph 13 of the plaint relating to the present suit it is averred that an earlier suit had been brought by the plaintiff but during the pendency of such suit the plaintiff got wind of the owners' challenge to the order of vesting. What the plaintiff says that it did after learning of the owners' proceedings challenging the State action of acquiring the land is captured in paragraph 14 of the plaint: '14. What the plaintiff says that it did after learning of the owners' proceedings challenging the State action of acquiring the land is captured in paragraph 14 of the plaint: '14. The plaintiff states that it being advised legally on the premises that the plaintiff could be able to obtain complete relief in respect of the suit premises in course of trial of the writ proceeding before the Hon'ble high Court at Calcutta, the plaintiff sought leave of this Learned Court (the alipore court) to withdraw the Title Suit no. 127 of 1995 and accordingly the plaintiff filed a petition on 4. 9. 1995 for withdrawal of the Title Suit no. 127 of 1995 and copy of the said petition was served upon the defendants. It is worth mentioning that prior to submission of the application dated 4. 9. 1995 for withdrawal of Title Suit no. 127 of 1995 the plaintiff also sought liberty and/or leave of the Hon'ble Court and the Hon'ble Court had been pleased to give liberty to the plaintiff to withdraw the said suit. Accordingly this Learned Court was pleased to allow your petitioner to withdraw the said suit by order dated 4. 3. 1997. ' (Emphasis supplied) 8. THE plaint thereafter recounts the owners' proceedings against the State action of vesting and settlement of the land and the Supreme Court order of April 16, 2003 before asserting thus in the sixteenth paragraph: '16. The plaintiff states that with the passing of the order dated 16. 4. 2003 by the Hon'ble Supreme Court the agreement for sale dated 3. 3. 1968 entered into by and between the plaintiff and the defendants was enlivened from its languid state. Since the Hon'ble Apex Court by the said judgment dated 16. 4. 2003 granted liberty to the plaintiff to explore its legal right arising out of the agreement for sale dated 3. 3. 1968 the plaintiff has been compelled to file the instant suit afresh to redress their grievances by enforcing the agreement for sale specifically in order to get the Deed of conveyance in respect of the suit premises executed and registered in favour of the plaintiff by the defendants or in the event of their failure through court in accordance with law. ' The reliefs claimed in the present suit are as follows: 'a) for passing a decree for Specific Performance of contract dated 3. 3. ' The reliefs claimed in the present suit are as follows: 'a) for passing a decree for Specific Performance of contract dated 3. 3. 1968 in favour of the plaintiff. b) for a direction upon the defendants to execute and register the Deed of conveyance or conveyances in favour of the plaintiff or its members on taking the balance consideration money failing which the plaintiff may be directed to deposit the balance consideration money in court and the learned court may be pleased to execute and register the Deed of conveyance or conveyances in favour of the plaintiff. c) for temporary/ad interim injunction. d) for passing a decree for all costs, incidental charges and expenses to the suit. e) for such further or other relief or reliefs the plaintiff may otherwise be entitled to law and in equity. ' 9. THE plaintiff has pleaded readiness and willingness and has said that no part of its claim was barred by limitation as the defendants and the Government of West Bengal were 'litigating for a long time since 1967' in respect of the acquisition of the land. The plaintiff says that the cause of action of the suit arose on March 5, 1968 and the cause of action was 'recurring' and finally its cause of action arose on April 16, 2003 when the Supreme Court disposed of the challenge to the acquisition proceedings. 10. THE defendants say that the plaintiff was careful in the choice of its words in paragraph 14 of the plaint and did not claim that it had obtained leave to institute a fresh suit upon withdrawing the earlier. The defendants suggest that notwithstanding the argument now sought to be made on behalf of the plaintiff, that the permission to withdraw the earlier suit should be seen along with a leave to file afresh, such matter finds no mention in the plaint as the plaintiff would have been in contempt if it had said so. The defendants refer to the departure from the plaint case in the affidavit used by the plaintiff to resist rejection and insist that in such departure the plaintiff is guilty of overreaching court and particularly seeking to act in derogation of an order of this Court passed on december 4, 1995. The defendants refer to the departure from the plaint case in the affidavit used by the plaintiff to resist rejection and insist that in such departure the plaintiff is guilty of overreaching court and particularly seeking to act in derogation of an order of this Court passed on december 4, 1995. The first and third defendants assert that on the strength of their insurmountable argument that the earlier suit had been withdrawn without leave to file afresh, this suit is liable to be dismissed as not maintainable without the other grounds that have been urged being looked into. 11. THERE is no dispute that upon ALP No. 19 of 1995 (the petition under clause 13 of the Letters Patent for transfer of the earlier suit) being filed before this Court, an order was made staying all further proceedings in Title Suit No. 127 of 1995 pending before the Alipore court. Such order was communicated to the Alipore court as is found recorded in the order dated November 29, 1995 passed by the Alipore court: 'the plff. has filed hazira. Defendant no. 1 has filed a petition for time for filing w/s. Defendants 2, 3 and 4 appear today and file a petition for stay (of) further proceeding of the suit in view ' of the order of Hon'ble high Court passed by Hon'ble Justice Ruma Pal on 27. 11. 95. The petition is supported by a copy of letter. ' In the circumstances further proceeding of the suit be stayed until further order. ' 12. ON December 4, 1995 an order was made in the petition under clause 13 of the Letters Patent, ALP No. 19 of 1995, and the fourth paragraph thereof is the key to this matter: 'until disposal of this application the ad-interim order of stay already passed will continue. This order will not however prevent any party from unconditionally withdrawn (sic, withdrawing) any procedure (sic, proceedings) which is sought to be transferred by virtue of this application. ' It appears plain from such order that the window that was opened in the order of stay of all proceedings was restricted to the unconditional withdrawal of any proceedings which were sought to be transferred by way of the petition under clause 13 of the Letters Patent. ' It appears plain from such order that the window that was opened in the order of stay of all proceedings was restricted to the unconditional withdrawal of any proceedings which were sought to be transferred by way of the petition under clause 13 of the Letters Patent. The Alipore court had no difficulty in understanding the purport of the order of December 4, 1995 as it gave liberty to the plaintiff to withdraw Title Suit No. 127 of 1995 by the order dated March 4, 1997: 'perused the petition and the case record. Considered. This is an application for withdrawal of the suit. It has been contended that a writ petition is pending before the Hon'ble High Court over the same subject matter of the suit. For an abundon (sic, abundant) precaution, the plaintiff is not willing to proceed with the suit. In this connection, I have also perused the Advocate's letter dated ' 11. 3. 96 wherein it has been stated that the Hon'ble Court has been placed (sic, pleased) to give liberty to the plaintiff to withdraw the suit. In the circumstances, the petition succeeds. C. F. paid are correct. Hence, ordered, that the suit be and the same is withdrawn without costs. ' 13. THE plaintiff refers to the judgment reported at 12 CWN 893 (Sheikh Golam mahomed and ors. v. Sivendra Pada Banerjee) and relies on a passage at page 896 for the principle that when an application is made for permission to withdraw a suit with liberty to file afresh and an order simpliciter is made allowing the plaintiff to withdraw the suit, such order should be construed to include the liberty granted to file a fresh suit. For the same proposition the judgments reported at AIR 1918 Mad 126 (Keelangoti Narayana Tantri v. Nagappa and ors.)and AIR 1926 Patna 259 (Khudi Rai v. Lalo Rai and ors.) are placed. 14. THE plaintiff cites the judgments reported at AIR 1924 Cal 600 (Dwijendra narain Roy v. Joges Chandra De and ors.); AIR 1957 SC 314 (P. Lakshmi Reddy v. L. Lakshmi Reddy) and AIR 1958 Patna 217 (Raj Behari Singh and anr. v. Chandrika singh and ors.) to say that its cause of action arose only upon the Supreme Court order being made in April, 2003 and the present suit had been instituted within a few months therefrom. v. Chandrika singh and ors.) to say that its cause of action arose only upon the Supreme Court order being made in April, 2003 and the present suit had been instituted within a few months therefrom. The plaintiff also contends that if there is a mixed question of law and fact involved in assessing whether a suit is barred by the laws of limitation, such assessment should only be made at the trial. The plaintiff relies on a judgment reported at (2006) 5 SCC 658 (Balasaria Construction (P) Ltd. v. Hanuman Seva Trust) for such principle. The plaintiff also places the judgments reported at (2005) 7 SCC 510 (Popat and Kotecha Property v. State Bank of India Staff Assn.) and (2005) 9 SCC 262 (Kumar Dhirendra Mullick v. Tivoli Park apartments (P) Ltd.) to discredit the grounds of limitation urged by the defendants. It is necessary to address the point of limitation only if it is found that the suit is otherwise maintainable. The ground urged by the defendants that the plaintiff is disentitled from claiming specific performance of an agreement when it demonstrably acted in derogation of such agreement by obtaining a lease of the same land from the State, is a matter that calls for evidence and appraisal of conduct and, thus, requires to be left to the trial if a trial is otherwise called for. 15. THE order of December 4, 1995 was clear and unequivocal in that it allowed the plaintiff to unconditionally withdraw its earlier suit. The use of the word 'unconditionally' in such order would imply that if the withdrawal was with any string attached, such prayer could not be made before the lower court. It is not open to the plaintiff to urge that any liberty to file afresh should be read into the Alipore court order of March 4, 1997 for that would fly in the face of the unambiguous words of this Court's order of December 4, 1995. 16. YET the bar under Order 23 Rule 1 (4) of the Code would have been undone if the Supreme Court had conferred a right on the plaintiff to launch fresh proceedings to canvass its agreement with the owners. Under Article 142 of the constitution of India, the Supreme Court could have made such order if it thought it was necessary for doing complete justice. Under Article 142 of the constitution of India, the Supreme Court could have made such order if it thought it was necessary for doing complete justice. But the relevant sentence in the Supreme Court order of April 16, 2003 is not one that appears to have been made in exercise of the power available under Article 142. The liberty that was granted was for the parties to vindicate their rights, if any, 'in the manner known to and in accordance with law. ' The known and relevant legal provision is found in Order 23 Rule 1 (4) of the Code, which provides, '1. Withdrawal of suit or abandonment of part of claim. ' (1) (2) (3) (4) Where the plaintiff ' (a) (b)abandons any suit of part of claim under sub-rule (1), or withdraws from a suit or part of a claim withoutpermission referred to in sub-rule (3), the he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) The first sub-rule under Rule 1 of Order 23 of the Code permits a plaintiff to abandon his suit or a part of his claim against all or any of the defendants. The proviso to the sub-rule is irrelevant in the present context. Sub-rule (3)provides for the plaintiff obtaining permission to withdraw from a suit or a part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Sub-rule (4) provides for abandonment or withdrawal simpliciter and the effect thereof. 17. IF the order dated December 4, 1995 is seen as one permitting the plaintiff only to withdraw the suit without any liberty to file afresh, the bar of a fresh suit on the subject matter of the earlier suit as contained in sub-rule (4) of Order 23 rule 1 of the Code would apply. 18. THE plaintiff contends that its cause of action remained suspended till such time that the order of vesting and settlement was not completely removed. 18. THE plaintiff contends that its cause of action remained suspended till such time that the order of vesting and settlement was not completely removed. The plaintiff says that the vesting and settlement was obliterated only by the supreme Court order of April 16, 2003 and its earlier suit was premature and its cause of action arose only upon the matter as to vesting and settlement reaching finality by the Supreme Court order. Such argument is flawed. The plaintiff's cause of action for seeking specific performance of the agreement did not remain suspended. At the highest it may not have perfected its title to the land in the sense that the execution of the decree that may have been made could not have been completed without the order of vesting and settlement being removed, but the plaintiff could have perused its suit for specific performance of the agreement nonetheless. Since the Supreme Court order did not confer on the plaintiff a right not available to it under the Code, this subsequent suit is barred by Order 23 Rule 1 (4) of the Code. The plaint does not claim that the order by which the earlier suit was permitted to be withdrawn reserved any liberty unto the plaintiff to sue afresh. The plaint does not speak of any special right having been conferred by the Supreme Court for this subsequent action to be launched, nor does it appear so from the Supreme Court order. 19. THERE is no merit in the plaintiff's argument that upon some of the applying defendants having sold their interest in the land, such defendants could not maintain any application for rejection of the plaint. For one, if the suit is not maintainable no conduct of the defendants will permit the plaintiff to continue the suit. For a second, if the plaintiff obtains a decree for specific performance, the defendants who have transferred their interest in the land to third parties would be liable to such third parties and can, thus, maintain the plea for dismissal of the suit. Even more fundamentally, if a suitor pursues its remedies against a party, such party cannot be precluded from questioning the validity of the action. 20. Even more fundamentally, if a suitor pursues its remedies against a party, such party cannot be precluded from questioning the validity of the action. 20. THE application made by the first defendant in the court below which has been carried to this Court by the order of transfer and the fourth defendant's application being GA No. 2317 of 2006 succeed. The plaint relating to EOS No. 3 of 2006 is rejected. The plaintiff will pay costs assessed at 200 GMs to each of the defendants. The plaintiff's interlocutory applications, being GA No. 3197 of 2006 and GA No. 2584 of 2007, stand dismissed without any order as to costs. Interim orders subsisting in the suit stand vacated.