Supreme Court of India· 29 September 2026

Does Order II Rule 2 CPC bar a fresh suit for specific performance where no leave was taken when the first suit for injunction was instituted?

Bombay Garage Ahmedabad Limited & Ors v. J P Iscon Private Ltd. & Anr

2026 INSC 1066 · Special Leave Petition (C) No.25909 of 2024
Coram: Justice J. B. Pardiwala · Justice K. Vinod Chandran

🔖 Save this judgment 🔔 Follow Order II Rule 2 Code of Civil Pr…📬 Get today's judgments

View the original judgment PDFFree to read. To download it — or the LexStreak typeset copy with the headnote and Points of Law — create an account; downloads are part of the Pro plan.

Answer

Order II Rule 2 bars a fresh suit for specific performance where no leave was taken when the first suit for injunction was instituted.

Yes. Where the relief of specific performance was entitled and available when the first suit for injunction was instituted but no leave was taken at that time, the second suit attracts the bar under Order II Rule 2; Order XXIII Rule 3 enables a fresh suit only with the prayer for injunction and not with the additional prayer for specific performance, and that a fresh suit was filed when an amendment could have been sought in the first suit is in the teeth of the rigour of Order II Rule 2. The Court also held that an inference of liberty to sue afresh drawn from the withdrawal of the first suit is impermissible and runs contrary to the Constitution Bench decision, and that the application of the bar is on facts, the cause of action being the one which gives an occasion for and forms the foundation of the suit.

Headnote

Code of Civil Procedure, 1908 — Order II Rule 2 — Suit for specific performance — Oral agreement — Concluded contract — Pleadings — Code of Civil Procedure, 1908 — Order II Rule 2 — Fresh suit for specific performance — Leave at first suit — Held: A fresh suit for specific performance is barred by Order II Rule 2 where the relief was available when the first suit for injunction was instituted and no leave was then taken; a fresh suit permitted after withdrawal covers only the injunction. (¶11, 23, 27) Code of Civil Procedure, 1908 — Order II Rule 2(3) — Cause of action — Earlier plaint — Held further: The bar in Order II Rule 2(3) is a technical plea that must be established satisfactorily and cannot be presumed by inferential reasoning; identity of the cause of action with the earlier suit must be shown from the earlier plaint. (¶8, 9, 10) Code of Civil Procedure, 1908 — Oral agreement — Specific performance — Strict proof — Held further: A suit for specific performance can rest on an oral agreement, but a concluded contract must be proved strictly. Inconsistent pleadings and interested testimony are not sufficient proof, and evasive defence witnesses cannot lead to an inference of a concluded contract. (¶3, 34, 36) Code of Civil Procedure, 1908 — Order II Rule 2 — Concluded oral contract not proved — Appeal allowed — On facts, held: No concluded oral contract was proved and the second suit was barred. Appeal allowed; orders of the Trial Court and the High Court set aside and the suit dismissed. (¶27, 39, 40)

Headnote

You've used your free headnotes this month

The answer above and the Court's own paragraphs stay free. LexStreak's full headnote on this judgment needs an account — a free one opens it again.

Create my free account

In the Court's own words

Paragraph 11Gurinderpal v. Jagmittar Singh[^4] was a case in which there was a contract to sell a plot of land, the specific performance of which was declined when the High Court dismissed the suit as barred by Order II Rule 2 of the CPC. The bar was invoked since the plaintiff had filed an earlier suit for permanent injunction, restraining the defendant from alienating the suit property. The first suit was sought to be withdrawn with liberty to file a fresh suit and the withdrawal sought for was allowed. This Court found that though there was no express liberty granted in the order, the suit was dismissed as withdrawn in view of the statement of the plaintiff, which clearly suggests that the plaintiff wanted to file a fresh suit. It was held, ‘obviously the plaintiff wanted to seek a decree of specific performance and not confine it to a mere injunction, which was the reason for the withdrawal’ (sic). With due respect we are afraid this is an inference by the learned Judges, impermissible and running contrary to the Constitution Bench decision. Gurinderpal[^4] being a three Judge Bench, we bow down to the proposition as laid down in the Constitution Bench which was followed in Vurimi Pullarao v. Vemari Vyankata Radharani[^5].

Paragraph 23The aforesaid decisions would clearly indicate that the application of Order II Rule 2 would be on facts. We would also extract from the Cuddalore Powergen Corporation Ltd.[^7] one paragraph which succinctly stated what a cause of action is particularly vis-à-vis Order II Rule 2: - “44. Therefore, the phrase “cause of action” for the purposes of Order II Rule 2 would mean the cause of action which gives an occasion for and forms the foundation of the suit. If that cause enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot be permitted to recover the balance reliefs through independent proceedings afterwards, especially when the leave of the court has not been obtained.”

Paragraph 27In the present case, obviously there was no leave taken when the first suit was instituted; but the relief of specific performance was entitled and available at that point of time. The suit was withdrawn on the ground of running settlement talks, with demand to file a fresh suit. Order XXIII Rule 3 only enables the plaintiff to file a fresh suit with the prayer for injunction and not with the additional prayer for specific performance. We also take note of the submission of the respondent that the fresh suit was filed when an amendment could have been sought in the first suit; but the fact remains that was not done and hence, is in the teeth of the rigour of Order II Rule 2.

Acts & Sections

Order II Rule 2 Code of Civil Procedure, 1908Order XXIII Rule 1(3) Code of Civil Procedure, 1908

One judgment a day. That's the whole habit.

Read the full text of Bombay Garage Ahmedabad Limited & Ors v. J P Iscon Private Ltd. & Anr — and get the Supreme Court's output as a five-minute daily read, with plain-language headnotes and the questions each judgment settles.

Create my free account

Free forever plan · 30 seconds · data stays in India

Open the full judgment →

Also decided in this judgment

Does a suit for specific performance based on an oral agreement require strict proof of a concluded contract, not mere inference?Does inconsistent or evasive testimony of defence witnesses lead to a finding in favour of the plaintiff?Can proof be offered without pleadings where an oral contract is attempted to be established?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections