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2023 DIGILAW 759 (KAR)

P. Devaraj v. Kamalamma

2023-06-09

C.M.POONACHA, P.S.DINESH KUMAR

body2023
JUDGMENT : C.M. Poonacha, J. The above First Appeal is filed under section 96 of Code of Civil Procedure, 1908 (for short 'CPC') by the Plaintiffs challenging the order dated 12.08.2015 passed on I.A. No.8 in O.S. No.1216/2013 by the Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru whereunder I.A. No.8 filed under Order 7, Rule 11 (a), (b), (c) and (d) of CPC has been allowed and the plaint has been rejected. 2. For the sake of convenience, the parties will be referred to as per their rank before the Trial Court. 3. The case of the Plaintiffs, in brief, necessary for consideration of the present Appeal is that, Defendant Nos.1 to 7 are the absolute owners of land bearing Sy. No.115 (new No.142) measuring 4 acres 10 guntas situated at Channasandra, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru (hereinafter referred to as 'suit property'). That the Plaintiffs entered into an Agreement of Sale dated 15.09.2011 with Defendant Nos.1 to 7 to purchase the suit property for a total consideration of Rs.3,82,50,000/- (Rs.90 lakhs per acre) and an advance of Rs.10 lakhs was paid on the date of the Agreement. That the sale transaction was required to be completed after the revenue records in respect of the suit property was transferred in the name of the Defendants. That although the Plaintiffs were ready and willing to complete the sale transaction, the Defendants stated that the revenue records of the property have not been transferred in their favour and due to pendency of certain litigations, were postponing the execution of the Sale Deed. That after the transfer of the revenue records in the names of Defendants through MRH No.87/2011-12 dated 04.06.2012, the Plaintiffs approached them to receive the balance sale consideration and execute the registered sale deed but they have not come forward. However, on 01.02.2013 when the Plaintiffs went to the suit property, they noticed Defendant Nos. 2 to 4 were negotiating with a 3rd party to sell the suit property. 3.1. That since the Defendants were making attempts to alienate the suit property, the Plaintiffs filed O.S. No.223/2013 for the relief of permanent injunction to restrain Defendant Nos.1 to 7 from alienating the suit property and an order of temporary injunction was passed in the said suit restraining Defendant Nos.1 to 7 from alienating the suit property in favour of 3rd parties vide order dated 04.02.2013. That the Defendants, although being aware of the suit filed by the Plaintiffs, evaded the summons of the said suit. 3.2. It is the further case of the Plaintiffs that subsequent to filing of the suit, they learnt that Defendant Nos.1, 2 and 4 have entered into a registered Agreement of Sale dated 05.10.2012 with Defendant No. 8 showing the market value of the suit property as Rs.3 crores and that the entire sale consideration has been paid as on the said date. The Plaintiffs got issued a legal notice dated 21.05.2013 calling upon the Defendants to receive the balance sale consideration of Rs.3,72,50,000/- and execute a registered Sale Deed in favour of the Plaintiffs within seven days. That Plaintiff Nos.1 and 2 have executed an Assignment Deed dated 30.08.2014 in favour of Plaintiff Nos.3 and 4 to deal with the suit property as they deem fit and received a sum of Rs.20 lakhs from the Plaintiff Nos.1 and 2. That the Defendants have refused to receive the legal notice dated 21.05.2013 and hence, the Plaintiffs have filed a suit seeking for the following reliefs: (i) For the relief of specific performance of agreement of sale dt. 15.09.2011 directing the defendants No.1 to 7 to execute proper, valid, registered sale deed in favour of the plaintiffs by receiving the balance sale consideration amount of Rs.3,72,50,000/- (Rupees three crore seventy two lakh and fifty thousand only), in the event the defendants No.1 to 7 fail to do so, this Hon'ble Court may be pleased to execute a proper, valid registered sale deed in respect of the schedule property in favour of the plaintiffs by using the Court machinery; (ii) Direct the defendant No.8 also to join with the defendants No.1 to 7 for execution of proper, valid, registered sale deed in favour of the plaintiffs No.3 and 4 in respect of the suit schedule property. (iii) To declare that the registered agreement of sale dt. (iii) To declare that the registered agreement of sale dt. 05.10.2012, Document No.33175/2012-13, which is registered at the Office of the Sub Registrar, Indiranagar, Bangalore, entered into between the defendant No.1 to 7 and defendant No.8 is a collusive and sham document and the same is not binding on the plaintiffs herein to the extent of their share; (iv) Restrain the defendant from alienating or encumbering the suit schedule property in favour of third parties either by themselves or their family members, GPA holders, henchmen, supporters, agents or any person's claiming any right under or through her, by granting permanent injunction; (v) Direct the defendants to pay the cost of the suit, and (vi) To grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case, in the interest of justice and equity. 4. The Defendants entered appearance in the suit and contested the case of the Plaintiffs by filing Written Statement. The Defendant No.8 filed I.A. No.8 under Order 7, Rule 11 (a), (b), (c) and (d) of CPC to reject the plaint for want of cause of action, for undervaluing the suit property nor paying sufficient stamp duty on agreement of sale and also as barred by law under Order II Rule 2 of CPC. 5. The Plaintiffs filed objections to I.A. No.8. The Trial Court vide its order dated 12.08.2015 allowed I.A. No.8 and rejected the plaint as the same is hit by Order II Rule 2 of CPC. Being aggrieved the present appeal is filed. 6. Sri Ravi B. Naik, learned Senior Counsel appearing for the Appellants / Plaintiffs contended that: a) at the time of the earlier suit i.e., O.S. No.223/2013, there was no cause of action to file the subsequent suit and hence, the suit is not barred under res judicata as held by the Trial Court. b) The Trial Court ought not to have held that the subsequent suit is barred by res judicata without recording evidence in the matter. c) The Trial Court ought not to have entertained the application under Order VII Rule 11 of the CPC while considering the aspect of bar of suit under Order II Rule 2 of the CPC. 7. b) The Trial Court ought not to have held that the subsequent suit is barred by res judicata without recording evidence in the matter. c) The Trial Court ought not to have entertained the application under Order VII Rule 11 of the CPC while considering the aspect of bar of suit under Order II Rule 2 of the CPC. 7. In support of his contentions, he relied on the averments of the plaint in the previous suit i.e., O.S. No.223/2013 and plaint in the present suit i.e., O.S No. 1216/2013 as well as the finding recorded by the Trial Court in the impugned order. He further relied on the following judgments: 1) Inbasagaran and another v. S. Natarajan, (2015) 11 SCC 12 ; 2) Deva Ram and another v. Ishwar Chand and another, 1995) 6 SCC 733 ; 3) Rohit kumar and another v. A S Chugh, CS(OS) 36/2007(Delhi HC DD.20.11.2008) ; 4) Srihari Hanumandas Totala v. Hemant Vithal Kamat and Others, 2021 SCC Online Sc 565 ; 5) Dalip Singh v. Mehar Rathee and others, (2004) 7 SCC 650 ; 6) Gurbux Singh v. Bhooralal, (1964) 7 SCr 831 . 8. Per contra, Sri K.K.Vasanth, learned counsel appearing for Respondent No.8, Shri. Siddhartha H.M., learned counsel for Respondent Nos.9 and 10 and Shri. Sunil S. Rao, learned counsel for Respondent Nos.11 and 12 justifying the order passed by the Trial Court contend; a) The cause of action for the earlier suit O.S. No.223/2013 as well as the present suit i.e., O.S. No.1216/2013 are same. b) That O.S. No.223/2013 was withdrawn without granting liberty to the Plaintiffs to file another suit. c) The Trial Court was justified in entertaining IA No.8 filed under Order VII Rule 11 of the CPC and considering the aspect regarding bar of suit under Order II Rule 2 of the CPC. 9. In support of their submission, they relied on the following judgments: 1) Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, (2013) 1 SCC 625 ; 2) Vurimi Pullarao v. Vemari Vyankata Radharani and another, (2020) 14 SCC 110 ; 3) Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 . 10. We have considered the submissions made by both the learned counsels and perused the material on record. 10. We have considered the submissions made by both the learned counsels and perused the material on record. The questions that arises for our consideration is: "Whether the Trial Court was justified in rejecting the plaint on the ground that it is hit by Order II Rule 2 of the CPC?" 11. In order to consider the contentions by the parties, it is necessary to notice the relevant statutory provisions. Order 2, Rule 2 of CPC states as follows: "2. Suit to include the whole claim:-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim:-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several relief:.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 12. In the case of Gurbux Singh a Constitution Bench of the Hon'ble Supreme Court considering the scope of Order II Rule 2 of CPC has held as follows: "6. In order that a plea of a bar under Order 2, Rule 2 (3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. ................ " (emphasis supplied) 13. In the case of Virgo Industries (Eng.) Private Limited, the Hon'ble Supreme Court was considering a case where the Plaintiff had filed two suits for permanent injunction on 28.8.2005 and 9.9.2005 to restrain the Defendant from alienating the suit properties. The basis of the relief claimed in the suits were two Agreements of Sale dated 27.7.2005 in respect of two different properties. In the said suits, the Plaintiff had stated that the period of six months for execution of the Sale Deeds under the Agreements was not yet over and the Plaintiff is not claiming specific performance of the Agreements. The Plaintiff, accordingly sought leave of the Court to omit to claim the relief of specific performance with liberty to sue for the said relief at a later point of time, if necessary. Subsequently, on 29.5.2007 the Plaintiff filed two suits seeking for a decree against the Defendant for execution and registration of the Sale Deeds in respect of the same properties and for delivery and possession. In the subsequent suits, it was stated by the Plaintiff that in respect of the same properties the earlier suits for injunction were filed and time for performance had not lapsed and the Plaintiff being under a bona fide belief that the Defendant would perform/execute the Agreements, the relief of specific performance was not claimed. 13.1 The Defendant filed an application before the High Court to strike off the subsequent suits on the ground that they were barred under Order II Rule 2 of CPC. The High Court held that on the date of earlier suits, the time stipulated for execution of the Sale Deeds having not expired, the cause of action to seek the relief of specific performance is not matured and held that Order II Rule 2 of CPC was not attracted and rejected the application filed by the Defendant. The High Court held that on the date of earlier suits, the time stipulated for execution of the Sale Deeds having not expired, the cause of action to seek the relief of specific performance is not matured and held that Order II Rule 2 of CPC was not attracted and rejected the application filed by the Defendant. 13.2 The Hon'ble Supreme Court set aside the judgment of the High Court and held that the suits for injunction as well as suits for specific performance were based on the same cause of action and that the subsequent suits were barred under Order II Rule 2 of CPC. In the said case it was held as follows: "11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. .............. 12. In the instant case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in CSs Nos. 831 and 833 of 2005, admittedly, no such leave was granted by the Court. The question, therefore, that the Court will have to address, in the present case, is whether the cause of action for the first and second set of suits is one and the same. Depending on such answer as the Court may offer the rights of the parties will follow. 13. xxxx 14. The averments made by the plaintiff in CSs Nos. 831 and 833 of 2005, particularly the pleadings extracted above, leave no room for doubt that on the dates when CSs Nos. 831 and 833 of 2005 were instituted, namely, 28-8-2005 and 9-9-2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27-7-2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject-matter of the above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in CSs Nos. 831 and 833 to also sue for the relief of specific performance. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in CSs Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court. 15. xxxx 16. In Vithalbhai (P) Ltd. case [ (2005) 4 SCC 315 ] this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless "there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event", the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts." (emphasis supplied) 14. In the case of Inbasagaran and another the Hon'ble Supreme Court was considering a case where consequent to an Agreement of Sale, the purchaser was put in possession of the suit property and also put up construction on the said property. After putting up construction, since the vendor attempted to take possession of the suit property, the purchaser filed a suit for injunction on 11.9.1985 to restrain the Defendant from taking forcible possession of the building constructed on the suit property. Pending the said suit, on 25.4.1986 the purchaser filed a suit for specific performance. The Defendant (owner of the property), inter alia, took a defence that the subsequent suit for specific performance is barred under Order II Rule 2 of CPC. The Defendant (owner of the property) had also filed a suit for injunction to restrain the purchaser from interfering with his peaceful possession and enjoyment of the suit property. The Defendant (owner of the property), inter alia, took a defence that the subsequent suit for specific performance is barred under Order II Rule 2 of CPC. The Defendant (owner of the property) had also filed a suit for injunction to restrain the purchaser from interfering with his peaceful possession and enjoyment of the suit property. The Trial Court tried all the suits together and dismissed the suits for injunction filed by the owner and purchaser and decreed the suit for specific performance filed by the purchaser. 14.1 The High Court held that the subsequent suit for specific performance is barred under Order II Rule 2 of CPC and set aside the judgment and decree passed by the Trial Court. The Hon'ble Supreme Court, upon consideration of the material on record held that the cause of action and the relief sought for in the two suits are distinct and not the same. It also considered the earlier judgment rendered in the case of the Virgo Industries (Eng.) Private Limited and noticed that the said judgment was distinguishable on the facts of the case. The Hon'ble Supreme Court set aside the judgment of the High Court and remanded the matter to the High Court for consideration on the merits of the case. While distinguishing the said case from the case of Virgo Industries (Eng.) Private Limited the Hon'ble Supreme Court recorded the following findings: "29. In the instant case, as discussed above, suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property. The plaintiff did not allege that the defendant is threatening to alienate or transfer the property to a third party in order to frustrate the agreement." (emphasis supplied) 15. In the case of Vurimi Pullarao the Hon'ble Supreme Court was considering a case where, consequent to an Agreement of Sale, possession was alleged to have been handed over to the purchaser. Alleging that the owner sought to obstruct the possession, the purchaser filed a suit for injunction on 30.10.1996 and no leave of the Court was sought under Order II Rule 2 of CPC to institute a suit for specific performance subsequently. Subsequently, on 30.4.1997 the purchaser filed a suit for specific performance. The Defendant contested the subsequent suit raising the bar under Order II Rule 2 of CPC. Subsequently, on 30.4.1997 the purchaser filed a suit for specific performance. The Defendant contested the subsequent suit raising the bar under Order II Rule 2 of CPC. The Trial Court upheld the said contention and dismissed the suit for specific performance. The first Appellate Court reversed the said judgment and held that bar under Order II Rule 2 of CPC was not attracted. The High Court in second appeal set aside the judgment of the first Appellate Court and remanded the matter to the first Appellate Court by consent of the parties to decide the appeals afresh. Subsequent to the remand, the first Appellate Court held that the subsequent suit was barred which was upheld by the High Court. The Hon'ble Supreme Court considering the judgment in the case of Virgo Industries (Eng.) Private Limited upheld the judgment of the first Appellate Court. 16. It is clear from the aforementioned that the principles contained under Order II Rule 2 of CPC and the law as laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of Gurbux Singh has been noticed and followed in the case of Virgo Industries (Eng.) Private Limited, Inbasagaran and another and Vurimi Pullarao8. In the cases of Virgo Industries (Eng.) Private Limited and Vurimi Pullarao while applying the settled proposition of law to the facts of the respective cases, it was held that subsequent suit was barred. However, in the case of Inbasagaran and another while applying the settled proposition of law to the facts of the said case, it was held that the subsequent suits were not barred. The Hon'ble Supreme Court at paras 28 and 29 of the judgment in the case of Inbasagaran and another has clearly distinguished the judgment in the case of Virgo Industries (Eng.) Private Limited . Hence, it cannot be said that the Hon'ble Supreme Court in the case of Inbasagaran and another has overruled the ratio as held in the case of Virgo Industries (Eng.) Private Limited . 17. In order to apply the settled proposition of law with regard to Order II Rule 2 of CPC, the relevant facts of the present case are required to be noticed. 18. The relevant paragraphs of the plaint in OS.No.223/2013 are extracted herein below for ready reference: "14. 17. In order to apply the settled proposition of law with regard to Order II Rule 2 of CPC, the relevant facts of the present case are required to be noticed. 18. The relevant paragraphs of the plaint in OS.No.223/2013 are extracted herein below for ready reference: "14. It is respectfully submitted that in fact, on 1.2.2013 when the plaintiffs being an agreement holders of the schedule property went near the schedule property by that time the defendants No.1, 4 and 6 have brought third parties near the schedule property and have started to show them the schedule property with an intention to negotiate for alienation of the schedule property in favour of third parties whom they brought to the spot in persons of the plaintiffs itself immediately the plaintiffs who were present in the spot have objected and question the defendants of their acts stating that there is already an agreement of sale executed by the defendants in favour of the plaintiffs on 15.9.2011 agreeing to sell the suit property by receiving the advance amount and that now they cannot do any illegal acts but deprive the legal right accrued to the plaintiffs in pursuance of the agreement of sale executed by the defendants for which the defendants have started to proclaim that at the time of agreement of sale the market value of the schedule property was only Rs.3,82,50,000/- and now it is increased more and hence, they want to sell the schedule property to the persons of their choice and they are not willing to sell the schedule property to the plaintiff for the rate fixed under the agreement of sale. 16. It is submitted that the plaintiffs have reserved their right to file a separate suit for the relief of relief of specific performance under the agreement of sale dtd.15.9.2011 and for consequential relief, but now in view of the urgency of the matter as the defendants are making all sorts of illegal attempts to alienate the suit property in favour of third parties with an intention to deprive the plaintiffs legal right accrued them under the agreement of sale. Having no alternative remedy the plaintiffs are constrained to file the above suit for the relief of permanent injunction to restrain the defendants from alienating the suit schedule property in favour of third parties. Having no alternative remedy the plaintiffs are constrained to file the above suit for the relief of permanent injunction to restrain the defendants from alienating the suit schedule property in favour of third parties. It is submitted that if the defendants are not restrained from alienating the suit property in favour of third parties, the defendants will take undue advantage of the situation and will sell the suit property in favour of the third parties, in such an event the plaintiffs will be put to great hardship, irreparable loss and injury, further more it will leads to multiplicity of proceedings. Hence, the above suit. 17. The cause of action for the suit arose on 1.2.2013 when the defendants have executed an agreement of sale on 15.9.2011 in favour of the plaintiffs by receiving advance sale consideration amount of Rs. 10,00,000/- and subsequently on all occasion when the plaintiffs have approached the defendants with a request to furnish the revenue documents to enable them for payment of balance consideration amount and to get registered the sale deed so also on 1.2.2013 when the plaintiff's were came near the schedule property by that time the defendant No.1, 4 and 6 came with third parties to show the property and were making negotiations for sale of the property which are within the jurisdiction of this Hon'ble Court." (emphasis supplied) 19. The relevant paragraphs of the plaint in OS No.1216/2013 are extracted herein below for ready reference: "10. It is submitted that to the shock and surprise of the plaintiffs No.1 and 2 on 01.02.2013, they being the agreement 9 holder, went to the schedule property, while the defendants No.1 to 4 came near the suit schedule property and negotiating with some third parties with an intention to sell the same in their favour even though the agreement of sale executed by them is subsisting and hence, the plaintiffs No.1 and 2 have objected for the same. There after wards, having no alternative remedy, since the defendants No.1 to 7 are making illegal attempts to alienate the schedule property in favour of third parties, the the plaintiffs No.1 and 2 were constrained to file a suit in O.S. No.223/2013 on the file of the Hon'ble Principal Civil Judge, Bangalore Rural District Bangalore for the relief of permanent injunction restraining the defendants No.1 to 7 from alienating the suit schedule property in favour of third parties and for other consequential relief/s. 11. It is submitted that on considering the case of the plaintiffs No.1 and 2, the Hon'ble Court is pleased to pass an order of temporary injunction restraining the defendants No.1 to 7 from alienating the suit schedule property in favour of third parties by an order dt 04.02.2013. It is submitted that the Hon'ble Court is pleased to issue Summons, so also the plaintiffs No.1 and 2 have complied with the direction given by the Hon'ble Court. But in spite of passing of the order by the Hon'ble Court so also sending of plaint papers along with documents in the said suit, the defendants No.1 to 7 have intellectually evaded receiving the same and the RPAD sent to them have been returned un-served to the Advocate of the plaintiffs No.1 and 2. Copy of the plaint and interim order dt 04.02.2013 are herewith produced for kind perusal of this Hon'ble Court as Document No.3 & 4. 17. The cause of action for the suit arose on 15.09.2011 when the defendants have executed the agreement of sale in favour of the plaintiffs and received a sum of Rs 10,00,000/- (Rupees ten lakh only) towards part performance of agreement of sale and further on 21.05.2013 when the plaintiffs have issued legal notice to the defendants calling upon them to execute proper, valid, registered sale deed in favour of the plaintiffs by receiving the balance consideration amount within 7 days from the date of receipt of legal notice, which are all within the jurisdiction of this Hon'ble Court." (emphasis supplied) 20. It is clear from the averments made at para 14 of the plaint in OS.No.223/2013 that the Plaintiffs were aware that the Defendants were not willing to sell the suit property to the Plaintiffs. 21. It is clear from the averments made at para 14 of the plaint in OS.No.223/2013 that the Plaintiffs were aware that the Defendants were not willing to sell the suit property to the Plaintiffs. 21. It is relevant to note that the event contemplated for completion of the sale transaction i.e., transfer of revenue records was admittedly completed prior to filing of the earlier suit for injunction in O.S. No.223/2013. 22. It is also relevant to note that although in the cause of action for the earlier suit the date has been mentioned as 15.11.2011 when the Agreement of Sale was executed and on 1.2.2013 when the Plaintiffs allegedly went near the suit property, the cause of action mentioned in the subsequent suit is mentioned as 15.9.2011 when the Agreement of Sale was executed and on 21.5.2013 when a legal notice was got issued by the Plaintiffs to the Defendants. 23. Another aspect which is required to be placed on record is that the Agreement of Sale was entered into by Plaintiff Nos.1 and 2. Subsequently, they executed the Assignment Deed on 13.8.2004 in favour of Plaintiff Nos.3 and 4 for a consideration of Rs.20 lakhs and their right under the said Agreement of Sale was assigned in favour of the Plaintiffs. 24. Having regard to the aforementioned, the Plaintiffs having averred in the earlier suit that the Defendants were not willing to sell the suit property, they ought to have sought for the relief of specific performance when OS No.223/2013 was filed. 25. It is to be noticed that in the earlier suit OS No.223/2013, at para 16 of the plaint, the Plaintiffs have averred regarding reservation of their right to file a separate suit for the relief of specific performance. It is a matter of record that pursuant to a memo dated 16.08.2014, the said suit in OS No.223/2013 was dismissed as withdrawn. Admittedly, no leave as contemplated under Order II Rule 2(3) of the CPC has been granted by the Court. Hence, a subsequent suit is clearly barred by Order II Rule 2 of the CPC. 26. It is a matter of record that pursuant to a memo dated 16.08.2014, the said suit in OS No.223/2013 was dismissed as withdrawn. Admittedly, no leave as contemplated under Order II Rule 2(3) of the CPC has been granted by the Court. Hence, a subsequent suit is clearly barred by Order II Rule 2 of the CPC. 26. The contention of the learned Counsel for the Appellants that the order of the Trial Court is liable to be interfered with as the same has been passed before recording of evidence is liable to be rejected in as much as admittedly, the Plaintiffs themselves have filed a copy of the plaint of the earlier suit in OS.No.223/2013 and the same is a part of record. The plaint has also been referred to by the Trial Court while passing the impugned order. The observations, in Gurbux Singh6 made by the Hon'ble Supreme Court that the evidence was not recorded before the plea under Order II Rule 2 was considered, were made having regard to the facts of the said case that while considering the bar under Order II Rule 2 of the CPC the Trial Court had only referred to the judgment rendered in the earlier suit and the pleadings of the earlier suit were not placed on record. This aspect of the matter also had been noticed by the Hon'ble Supreme Court in the case of Vurimi Pullarao. Hence the said contention will not aid the case of the Appellants/Plaintiffs. 27. It is a settled position of law that the Court while adjudicating an application under Order VII Rule 11 of the CPC is required to consider only the averments made in the plaint and the documents produced along with the plaint. The Hon'ble Supreme Court in the case of Dahiben has held as follows:- "23.2. The remedy under Order 7, Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 23.6. 23.6. Under Order 7, Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512 ], read in conjunction with the documents relied upon, or whether the suit is barred by any law. 23.8. Having regard to Order 7, Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7, Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. 23.15. The provision of Order 7, Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint. 28. The Plaintiff at para 10 of the plaint has specifically pleaded regarding the earlier suit filed in OS No.223/2013. It is also forthcoming from para 11 of the plaint that a copy of the earlier suit in OS.No.223/2013 was produced before the Trial Court. Hence, the Trial Court was perfectly justified in entertaining IA No.8 filed by Defendant No.8 under Order VII Rule 11 of the CPC. 29. The Trial Court considered all aspects of the matter and has found that the suit filed by the Plaintiffs is barred under Order II Rule 2 of the CPC. Upon a re-appreciation of the material on record it is clear and forthcoming that the Trial Court was justified in allowing IA No.8 and rejecting the plaint as hit by Order II Rule 2 of the CPC. Having regard to the aforementioned, the Appellants have not made out any ground to warrant interference in the order dated 12.8.2015 passed on IA No.8 by the Trial Court. The question framed for consideration is answered in the affirmative. 30. Hence, the above appeal is dismissed being devoid of merit. No costs.