Ishar Dass vs Kanwar Bhan and Others

A.S. Nehra, J.—Ishar Dass appellant-defendant No. 3 has filed this appeal against the judgment and decree dated 28.8.1986 by which the appeal filed by Kanwar Bhan plaintiff-respondent was allowed and the judgment and decree dated 15.12.1983 passed by the trial Judge was set aside.

The plaintiff-respondent filed a suit for seeking a decree for possession by way of specific performance of the agreement dated 26.11.1979, against the defendants.

The case of plaintiff is that a residential plot, as detailed in para 1 of the plaint, was in the ownership of Lajwanti, defendant No. 2, and Dharam Pal Madan, defendant No. 1 being her Special Attorney, vide duly registered Power of Attorney dated 19.10.1979, executed an agreement dated 26.11.1979 to sell the said plot to the plaintiff for a consideration of Rs. 14000/ -; that defendant No. 1 had received Rs. 15000/ - on 30.9.1979 which was treated as earnest money at the time of the execution of the agreement dated 26.11.1979; that the execution and registration of the sale deed was to be completed by 25.4.1980 after receiving the balance sale price from the plaintiff and the stamp and registration charges were to be borne by the plaintiff; that in case of default on the part of the plaintiff to get the sale-deed executed and registered by 25.4.1980, his earnest money was to be forfeited and the agreement deemed to have been cancelled; that however, in case of default on the part of defendant No. 1 to get the sale deed completed, the plaintiff was entitled to get the agreement, in question, specifically enforced through court or to claim from defendant No. 1 a sum of Rs. 10,000/ - as liquidated damages; that the plaintiff has always been ready and willing to perform his part of the contract; that it is only the defendants who are avoiding was granted against the defendants. It is thus canvassed by the plaintiff that the defendants were not at all ready and willing to perform their part of the contract; that defendant No. 1, in order to create false evidence, also got issued a notice to the plaintiff on 26.5.1980, which was received by the plaintiff on 28.4.1980 after institution of the suit for injunction; and that defendant No. 1 did not execute and get registered a proper sale deed in favour of the plaintiff in accordance with the terms of the agreement. It is also set up by the plaintiff that compensation of money will not be adequate relief for the breach of the agreement.

Subsequently, the plaint was amended. Ishar Dass was also joined as defendant respondent No. 3. It was further set up by the plaintiff that during the pendency of the suit, defendant No. 1, in is capacity as Special Attorney of his wife defendant No. 2, alienated the suit property in favour of Ishar Dass appellant, defendant No. 3 on 8.5.1980 and that the sale is illegal, void and not binding on the plaintiff. The amendment of the plaint was allowed by the trial court on 19.8.1980.

Defendants Nos. 1 and 2 were proceed ex parte. Ishar Dass appellant, defendant No. 3. contested the suit and controverted that averments made in the plaint. In the written statement, it was stated by the appellant, defendant No. 3, that he is bonafide purchaser for consideration without notice and, therefore, he is not bound by the alleged agreement; that the sale in his favour is neither illegal nor void; and that the suit of the plaintiff is barred under Order 2 Rule 2, Order 9 Rule 9 and Order 23 Rule 1(4), Code of Civil Procedure.

On the pleadings of the parties, the following issues were framed:

Whether the defendant Nos. 1 and 2 had entered into agreement of sale dated 26.11.1979? If so, what were the terms of the agreement?

Whether the plaintiff has been ready and willing to perform his part of contract?

Whether the defendant No. 3 bona fide purchaser for consideration of the land in suit?

Whether the suit is barred, as alleged?

Relief.

The trial court decided issue No. 1 in favour of the plaintiff; Nos. 2 and 4 were decided in favour of the defendants; and issue No. 3 was decided in favour of Ishar Dass appellant, defendant No. 3 and the suit held by the plaintiff-respondent was dismissed on 15.12.1983.

The plaintiff respondent, aggrieved by the judgment and decree passed by the trial court on 15.12.1983, filed an appeal before the Additional District Judge, Kurukshetra, which was allowed on 28.8.1986 and the judgment and decree passed by the trial court was set aside and the suit filed by the plaintiff-respondent was decreed.

The learned Counsel for the appellant has challenged the finding of the lower appellate court on issue No. 2 on the ground that the plaintiff respondent was not ready and willing to get the sale-deed executed in his favour and the plaintiff-respondent has failed to prove that he had the money to get the sale deed registered on 25.4.1980. The plaintiff-respondent as PW3 has stated in his cross-examination that he had asked Dharam Pal Madan, defendant No. 1 to get the khokha removed from the suit land and defendant No. 1 had told him that he would get the same removed but he did not get the khokha removed by 25.4.1980. The plaintiff-respondent further stated that if the khokha had remained there, he was not prepared to get the sale-deed executed. The learned Counsel for the appellant submitted that this statement of the plaintiff-respondent clearly goes to show that it was the plaintiff-respondent who was not ready and wiling to get the sale-deed executed and registered unless the khokha of Sohan Lal on the plot, in dispute was removed; and that there was no term or condition in the agreement that the khokha would be got removed before the execution of the sale deed.

The plaintiff-respondent, to prove his readiness and willingness to perform his part of the contract, deposed that he was having Rs. 13000/ - on 25.4.1980 and went to the office of Sub Registrar, Kaithal, at 9 a.m. but defendants Nos. 1 and 2 did not turn up; and that application Exhibit P1 and affidavit Exhibit P3 were filed by him. On this application, order Exhibit P2 was made by Jt. Sub Registrar. This order has been proved by Natha Ram, Reader of Tehsil Guhla, who appeared as PW1. This application was scribed by Lal Chand at the behest of Kanwar Bhan plaintiff respondent PW4 Attar Chand Lambardar is a witness to the identification of the plaintiff respondent on affidavit Exhibit P3.

Affidavit Exhibit P3 dated 25.4.1980 of the plaintiff-respondent was attested by the Executive Magistrate and the endorsement to this effect is Exhibit P3/1 which was proved by Niranjan Singh PW7.

Order Exhibit P2 is to the effect that at 4.15 p.m., the defendants were not present. This document coupled with oral evidence of the plaintiff-respondent goes to show that the plaintiff-respondent was present in the office of Sub Registrar, Kaithal, on 25.4.1980 till 4.15 p.m.

The learned Counsel for the appellant has vehemently urged that mere presence of the plaintiff-respondent on the last date for the execution of the sale-deed, in the office of the Sub Registrar, is not at all sufficient to prove his readiness and willingness to perform his part of the contract. It has been urged by the learned Counsel that it was specifically to be pleaded by the plaintiff-respondent that on 25.4.1980 he was ready with the balance sale amount. The learned Counsel for the appellant further vehemently urged that the statement of the plaintiff-respondent to the effect that he was always and is still ready and willing to perform his part of the contract, would not answer to the requirement of the contract. Reference has been made to Form 48 in Appendix attached to the Code of Civil Procedure, Form 48 has to be read in conjunction with Form 47, as both these forms have been provided for a suit for specific performance where balance sale amount is to be paid by the plaintiff to the defendant. A specific plea that the plaintiff tendered such balance amount to the defendant and demanded a transfer of the said property by sufficient instrument as per Form 48 is to be made in the pleadings. It would also be seen that even the demand for such transfer after such payment of balance sale amount, is to be made by the plaintiff. It is further apparent from the said form that readiness and willingness to the balance sale purchase money is also to be specifically pleaded. There is no such pleadings that the plaintiff-respondent was ready with the balance sale amount as also the amount of defray the expenses for stamp and registration charges on 25.4.1980. Though there are specific pleadings in detail that the plaintiff respondent went to the office of Sub Registrar on 25.4.1980, waited for the defendants and then filed an application alongwith the affidavit, yet there are no such averments that the plaintiff-respondent was ready with money to be paid to the defendants and was also having sufficient amount with him for making payments for stamp and registration charges. Application dated 25.4.1980, Exhibit DW2/2, has been proved by Sham Sunder DW3. On this application, the order by the Sub Registrar is Exhibit DZ which was made at 4.45 p.m. From the evidence of the plaintiff-respondent, as has been discussed above at length, the plaintiff-respondent left the office of the Sub Registrar, Kaithal, at 4.15 p.m. while the office of Sub Registrar, Kaithal remained open till 5.00 p.m. Defendant No. 1 has sufficiently proved his presence in the office of Tehsiidar, Kaithal, as is clear from application Exhibit DW2/2 and the order of the Joint Sub-Registrar, Kaithal (Exhibit DZ) was made on 25.4.1980 that defendant No. 1 was present in the office of the Sub Registrar till the close of the office hours. The plaintiff-respondent did not wait for the defendants till 5.00 p.m. and thus committed breach even in this regard.

There is even otherwise no evidence except the sweeping statement made by Kanwar Bhan PW3 that he was having Rs. 13000/ - on 25.4.1980. He stated that he withdrew the said amount from the Bank but he was not able to tell the date of such withdrawal but mentioned that it was so withdrawn within a period of one month preceding the date of execution of the sale deed. According to the plaintiff-respondent, the account was in the Oriental Bank, which was in the name of Lajpat. No statement of accounts had been produced. No document even otherwise from the Bank, such as pass-book, had been put in evidence so as to show that, at that relevant point of time Lajpat was having sufficient amount for balance sale consideration and the plaintiff-respondent withdrew such amount for such purpose. Even otherwise, it had not been proved by this witness that he was having any authority to withdraw the amount from the Bank account of Lajpat or what was his relationship with him. It was also not stated by him that he was having control and authority over the funds in the said Bank account. Rather, the evidence on this score that there were sufficient funds in the Bank account at the command of the plaintiff respondent is conspicuously missing.

The learned Counsel for the appellant has argued that Kanwar Bhan PW3 was pointedly cross-examined and he admitted that on 24.4.1980 he met defendant No. 1 but defendant No. 1 did not refuse to get the sale deed executed. Rather, Kanwar Bhan PW3 plainly deposed that, right from the date when the agreement Exhibit P4 was executed till the date, defendant No. 1 has not refused to get the sale deed executed in his favour. Kanwar Bhan PW3 also deposed that when defendant No. 1 was there at Kaithal two-three days prior to 24.4.1980, he had been meeting defendant No. 1 on the said dates and asked defendant No. 1 to get the Khokhaon the suit land removed for which he promised but till 25.4.1980 the said Khokha was not removed from the suit land. It has been atically stated by Kanwar Bhan PW3 that he was not ready to get the sale deed executed unless the said Khokha was removed from the suit land.

In these circumstances, when defendant No. 1 came long way from Sunder Nagar to Kaithal two-three days prior to the date of execution of the sale-deed, i.e., 25.4.1980, had been meeting the plaintiff-respondent almost daily, never refused for execution of the sale-deed and was also present in the office of Sub Registrar on 25.4.1980 till 4.45 p.m.; there is thus nothing to show that defendant No. 1 was not ready or refused to execute the sale deed. It was admittedly by the plaintiff-respondent himself that defendant No. 1 was the attorney of defendant No. 2. As he has been amply discussed above, the plaintiff respondent''s stating about the amount of Rs. 13000/ - being with him, in his deposition, is at variance with his pleadings and he had not been able to establish it. His further imposing conditions on the defendant in contravention of the agreement has thus not proved his readiness and willingness to perform his part of the contract.

The learned Counsel for the appellant, in support of his argument, has relied upon Dhanna Singh and Anr. v. Malkiat Singh and Anr. 1983 PLR 275; Ishar and Ors. v. Sheo Ram and Ors. 1987 PLJ 421; and Ouseph Varghese Vs. Joseph Aley and Others,

It has been held by the Supreme Court in Quseph Varghese''s case (supra) that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code; and that in a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. It has been further held that he must also plead that he has been and is still ready and willing to specifically perform his part of the agreement. It is prescribed in Form 48 that the plaintiff is to plead that he tendered the money to the defendant on a particular date and demanded transfer of the property by a sufficient instrument,

Mr. V.K Jain, learned Counsel for the plaintiff respondent, has placed reliance on Prag Datt Vs. Smt. Saraswati Devi and Another, wherein it was held whether the plaintiff was ready and willing to perform his part of the contract, the substance of the matter and surrounding circumstances have to be seen and if from the averments made in the plaint and the surrounding circumstances, it is established in substance that the plaintiff was and remained throughout ready and willing to perform his part of the contract, it would not be proper to non suit him on a verbal omission her and there. There is no dispute with this proposition of law. But, as has been discussed above at length, even the pleadings of the plaintiff-respondent, have failed to prove the readiness and willingness of the plaintiff-respondent to perform his part of the contract. The learned Counsel for the plaintiff-respondent has also referred to R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, in this regard and it has been urged that readiness and willingness cannot be treated as a strait-jacket formula and the same have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. As has been discussed above, there is no dispute and there cannot be any with this established proposition of law., As has been discussed above at length, there are many circumstances showing the conduct and intention of the plaintiff-respondent that he was not ready and willing to perform his part of the contract. His being ready with the money has also not been established. He did not get the stamp papers purchased and did not get the proper deed drafted. The suit was filed by the plaintiff-respondent on 28.4.1980, vide plaint Exhibit D1, for seeking a relief of permanent injunction against defendants Nos. 1 and 2, particularly when the relief of specific performance had become available to him which itself goes to show that, just to avoid payment on stamps to be affixed on the suit for specific performance, the same was not so filed and only a relief for permanent injunction was sought for Shri R.P. Gupta, who was counsel in the earlier suit filed for permanent injunction, vide plaint Exhibit D1, has appeared as DW2 and he has not been able to give any reason for having not filed a suit for specific performance at that time. It is also not out of place to mention here that even when the present suit was filed on 1.5.1980, the court-fee was not complete; rather the suit was filed with a court fee of Rs. 2/ - only and it was only on 14.5.1980 that the deficiency in the court-fee was made good by the plaintiff-respondent. There was sufficient indication that the plaintiffs in Ramesh Chandra Chandiok''s case (supra) had sufficient funds with them. The circumstances in the present case are entirely different. No bank account or statement of accounts has been produced. It is also not established that the funds in the Bank account of Lajpat were at the command of the plaintiff-respondent, much less sufficiency of the funds therein. Therefore, Ramesh Chandra Chandiok''s case (supra) does not help the case of the plaintiff-respondent. In view of my discussion, as mentioned above the finding of the lower appellate court on Issue No. 2 is set aside.

The learned Counsel for the appellate has challenged the finding of the lower appellate court on issue No. 3 on the ground that the appellant, defendant No. 3, is a bona fide purchaser for consideration without notice. To prove the notice of the agreement to sell in favour of the plaintiff-respondent, Hari Chand PW8 has been examined by the plaintiff-respondent. He is the cousin of defendant No. 3 and brother-in-law of the plaintiff respondent. He also stated that the mother of defendant No. 3 and his mother are real sisters. This witness made a statement that he had told defendant No. 3 about the dispute with the plaintiff-respondent and defendants Nos. 1 and 2 regarding the plot and asked him not to purchase the land. There is, however, no such pleadings that defendant No. 3 was in the know of the agreement to sell in favour of the plaintiff-respondent. Even otherwise, it would be seen that Hari Chand PW8 is not a dependable witness. Though he stated that the mother of defendant No. 3 (appellant) is his aunt, yet he was unable to name her. He stated that he was with the plaintiff-respondent on the last date for the execution of the sale deed and mentioned the date as 28/29. It is very pertinent to mention here that the plaintiff-respondent, in his elaborate deposition when he appeared on 19.10.1982, does not even make a mention of this witness being with him rather he specifically mentioned the presence of his maternal grand-father with him. On the other hand, Hari Chand PW8 rather stated that there was none else on that date except the plaintiff-respondent and he himself. Thus, his deposition is in direct contradiction with the deposition of the plaintiff-respondent Hari Chand PW8 even was not in the know whether the plaintiff-respondent was having any application for getting his presence marked. Introducing of this witness as having given information to the appellant is thus completely a concocted story, which is nothing but an afterthought. The learned Counsel for the appellant, in support of his argument, has relied upon a judgment of this Court reported as Nand Kishore v. Rameshwar Dayal and Anr. 1989 PLJ 258, wherein it has been held:

The law on this aspect is well established, The vendee who claims to a bona fide purchaser for valuable consideration and without notice of the earlier agreement to sell; discharges the initial onus placed on him by leading a negative evidence which would consist of his own statement denying knowledge of the prior agreement to sell. The burden then shifts to the plaintiff to show that the vendee had the notice of the earlier agreement.

It is clear that the appellant did discharge the initial onus placed on him by making a categoric statement that he is a bona fide purchaser for valuable consideration and without notice of the earlier agreement. The plaintiff respondent, on the other hand, could not lead any cogent evidence to establish that the appellant had the notice of the agreement to sell (Exhibit P4). I have, therefore, no hesitation in holding that the appellant was a bona fide purchaser of the plot, in dispute, for valuable consideration without notice of the earlier agreement to sell. Therefore, the finding of the lower appellate court on issue No. 3 is set aside.

The learned Counsel for the appellant, defendant No. 3, has vehemently urged that the present suit is clearly barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. Earlier, a suit was filed by the plaintiff respondent on 28.4.1980 (Exhibit D1) seeking a relief of permanent injunction against defendants Nos. 1 and 2, to which written statement Exhibit DW3/2 was filed and the said suit was withdrawn by the plaintiff-respondent, vide order dated 2.1.1981. Exhibit DX that suit was dismissed as withdrawn and was not decided on merits.

It has been argued that the allegations in the plaints of both the suits are the same and it is urged that the material allegations in the earlier suits (Exhibit D1) are the same as in the present plaint. Rather, paragraphs 1 to 6 are completely the same in both the suits and the right to split the claim arising out of the same cause of action cannot be reserved by the plaintiff-respondent except with the permission of the court. At the time of withdrawal of the earlier suit, vide order dated 2.1.1981, no such permission of the court to file a fresh suit was obtained. Even at the time of the institution of the suit, vide plaint Exhibit D1, no such permission to sue for specific performance afterwards was obtained from the court. There is no denying the fact that the relief of specific performance was available to the plaintiff-respondent at the time when the earlier suit was filed, Shri R.P. Gupta, Advocate, who was counsel for the plaintiff-respondent in that suit (Exhibit D1), was specifically examined on this point, but he was unable to detail any factor for having not filed a suit for specific performance of the agreement Exhibit P4. He rather stated that the contract between the plaintiff-respondent and the defendants was subsisting and the suit for permanent injunction, in his view, was maintainable and, therefore, suit Exhibit D1 was filed against the defendants. When the plaintiff respondent himself claimed that the relief of permanent injunction was available to him on 28.4.1980, then now it cannot be urged by his counsel that the said relief was not available to him. Rather DW2 Ravi Parkash Gupta atically stated that in view of the subsistence of agreement Exhibit P4, suit for permanent injunction (Exhibit D1) was maintainable. So is clear from reply Exhibit PX given by the plaintiff-respondent to notice Exhibit DW2/1 that he took the agreement subsisting. Even if this position is accepted, the notice dated 1.5.1980 was received by the counsel for the defendant on 3.5.1980 and the period of three days was given to the defendant to exercise his desire and option to get the sale deed executed in favour of the plaintiff-respondent.

Thus, after three days of the receipt Exhibit PY of the said notice Exhibit DW2/1, the agreement to sell (Exhibit P4) stood deviated and the plaintiff respondent even then did not amend his pleadings in plaint Exhibit D1 to take the plea of specific performance of the agreement and continued contesting that suit till 2.1.1981 when the same was withdrawn by him. Rather it would be seen that on the date when reply Exhibit PX to notice Exhibit DW2/1 was sent by the plaintiff-respondent on 2.5.1980, the suit for specific performance was filed on the same date. Thus, if the contention in deposition of Ravi Parkash Gupta Advocate, learned Counsel for the plaintiff is accepted, then the plea for specific performance could have well been taken even earlier at the time of filing the suit Exhibit D1. It is very pertinent to note here that the plaintiff continued litigating both the suits till 2.1.1981 when the suit for permanent injunction was withdrawn. It would not be out of place to mention that the deficiency in court-fee even in the present suit was made good after about two weeks of the filing of the suit.

Before dealing with the contention of the learned Counsel for the appellant, it will be advantageous to read Order 2 Rule 2. Code of Civil Procedure, which read as follows:

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 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 reliefs - 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 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.

Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

It is evident from the rule that it bars splitting up of cause of action. It is based on the principle that a defendant should not be harassed twice on the same cause of action. The rule provides that if a plaintiff omits any portion of the claim, which he is entitled to make, or omits one of the reliefs, in case he is entitled to more than one relief, in respect of a cause of action, he shall not afterwards be entitled to sue for the portion of the claim or the relief so omitted. The words ''cause of action'' have not been denied anywhere in the Code. The expression means all the facts which are necessary to be proved by the plaintiff in order to obtain a decree in his favour. In order to find out whether the cause of action in the two suits is the same or not, it is not only that the facts, which would entitle the plaintiff to relief, should be the same but also the infringement of his rights at the hands of the defendant should have arisen in substance out of the transaction. While determining the cause of action in two suits, the substance rather than the form should be taken into consideration. Rule 2 ibid was interpreted by the Supreme Court in Sidramappa Vs. Rajashetty and Others, wherein it was observed as follows:

The requirement of Order 2 Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action'' means the ''cause of action for which the suit was brought'' Cause of action is a cause of action which gives Occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.

The learned Counsel for the appellant, in support of his argument, has relied upon Rakha Singh v. Amrit Lal and Ors. 1983 RLR 426; Haridas Mondal Vs. Anath Nath Mittra, AIR 1931 229 (Privy Council) and AIR 1937 324 (Rangoon) 4.

Shri V.K. Jain, Senior Advocate, learned Counsel for the plaintiff-respondent has referred to authorities reported as Sadhu Singh and Others Vs. Pritam Singh and Another, Gurbax Singh Vs. Bhajan Singh and Others, Sardari Mal v. Hirde Nath and Ors. AIR 1925 Lah 459 (2); Sardar Balbir Singh Vs. Atma Ram Srivastava, ; and The Union of India v. S. Kesar Singh AIR 1978 J&K 102.

The cases referred to by the learned Counsel for the plaintiff-respondent are distinguishable in Sadhu Singh''s case (supra), the earlier suit was filed for possession and the later suit was for mense profits. The Full Bench held that the subsequent suit for mense profits was not barred under Order 2 Rule 2 read with Rule 4, Code of Civil Procedure. It may be highlighted that in that case Rule 2 was interpreted in the light of Rule 4. In Sardar Balbir Singh''s case (supra), the landlord instituted a suit for arrears of rent and mense profits. While filing the suit, the leave of the court was obtained to file a suit for ejectment subsequently, which was granted. After filing this first suit, the second suit for ejectment was filed. It was observed that the second suit was not barred by the provisions of Order 2 Rule 2, Code of Civil Procedure, as the plaintiff had obtained the leave of the court under Order 2 Rule 2(3) Code of Civil Procedure, for filing a suit for ejectment subsequently. The facts in Kesar Singh''s case (supra), are also different. Therein, it was observed that a subsequent suit for damages arising out of breach of contract could not be said to be barred under Order 2 Rule 2, Code of Civil Procedure. Similarly, the facts in other cases referred to above by the learned Counsel for the plaintiff-respondent are different. The facts in Sardari Mal''s case (supra) are also different because in that case, the two suits did not arise out of the same cause of action inasmuch as the cause of action for the first suit was the agreement by the defendant to sell the property, in question, to some other person other than the plaintiff. The learned Counsel for the plaintiff-respondent has urged that where the court cannot grant relief in a previous suit, the plaintiff is not debarred from bringing subsequent suit. There is no dispute about this proposition of law but, right from the suit, it is the case of the plaintiff-respondent that the relief claimed in the present suit was available to him when he filed the earlier suit, vide plaint Exhibit D1, and so is the deposition of DW2 Ravi Parkash Gupta, Advocate, his counsel.

After taking into consideration of the facts and circumstances, I am of the opinion that the cause of action in the earlier suit and the present one is the same and the plaintiff-respondent in the earlier suit omitted to sue in respect of a portion of the claim. Therefore, the case squarely falls within the purview of Sub-Rule (2) of Rule 2 of Order 11 ibid. In the aforesaid view, I am fortified by a judgment of this Court reported as Rakha Singh v. Amrit Lal and Ors. 1983 RLR 426, which is fully applicable to the facts of the present case. Therefore, the finding of the lower appellate court on issue No. 4 is set aside and it is held that the present suit is clearly barred by the provisions of Order 2 Rule 2, Code of Civil Procedure, as the relief of specific performance was not availed of by the plaintiff-respondent, when it was available to him and no such permission for reserving that right was obtained by him from the court.

In view of my findings on issues Nos. 2, 3 and 4, the appeal is allowed and the judgment and decree passed by the lower appellate, court is set aside. The judgment and decree passed by the trial court is restored and the suit of the plaintiff-respondent is dismissed. No costs.