1. Leave granted.

2. The defendant respondent entered into a contract to sell a plot of land situated in an urban area in favour of the plaintiff appellant who filed a suit for specific performance which has been dismissed by the High Court as barred by O.2 R.2 of the Code of Civil Procedure, 1908 (for short "CPC"). The appellant sought for a review of the judgment. The review petition too has been dismissed. These two appeals by special leave are directed against the two judgments respectively dismissing the appeal and the review petition.

3. It appears that initially the plaintiff appellant apprehending that the subject matter of the contract was likely to be alienated in favour of a third person, filed a suit for permanent injunction restraining the defendant from alienating the suit property in favour of anyone other than the plaintiff appellant. The suit came up for hearing before the trial court on 15-6-1994 on which date the court made a record of the statement made before it by the plaintiff appellant as under:

"It is stated that I do not wish to continue with this suit, which may be permitted to be withdrawn with liberty to file fresh suit."

4. The abovesaid statement having been recorded, the trial court thereupon passed the following order:

"File taken up today. In view of the statement of the plaintiff, the suit is dismissed as withdrawn. File be consigned to the record room."

5. Subsequently, the plaintiff appellant filed the present suit for specific performance and seeking refund of consideration in the alternative. The trial court decreed the suit for specific performance. The defendant respondent filed first appeal. The learned District Judge, who heard the appeal, formed an opinion that so far as the relief of specific performance of the contract was concerned, the same was barred under O.2 R.2 CPC, in view of the relief having not been sought for in the earlier suit and the suit having been withdrawn unconditionally. However, the first appellate court passed a money decree for recovery of Rs 30,000 with interest. There are other reasons also recorded by the first appellate court for not granting the relief of specific performance. The plaintiff appellant preferred a second appeal which has been dismissed upholding the judgment and decree passed by the first appellate court.

6. Having heard the learned counsel for the parties, we are satisfied that the judgment of the High Court as also of the first appellate court cannot be sustained to the extent to which the bar enacted under O.2 R.2 CPC has been applied. The provisions of O.2 R.2 CPC bar the remedy of the plaintiff appellant and, therefore, must be strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff appellant recorded by the court on that very date. The plaintiff appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn "in view of the statement of the plaintiff. A conjoint reading of the order of the court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit, obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellate court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15-6-1994. That finding of the first appellate court ought not to have been sustained by the High Court.

7. The appeals are allowed. The judgment of the High Court dismissing the appeal at the threshold as also the one dismissing the review petition, are set aside. The second appeal shall stand restored on the file of the High Court. The High Court shall after hearing the appellant herein form an opinion whether the appeal raises any substantial question of law within the meaning of S.100 CPC and subject to forming the said opinion, proceed to deal with the second appeal.

8. No order as to the costs.

9. The parties through their respective counsel are directed to appear in the High Court on 19-7-2004.