( 1 ) ARGUMENTS in this case were heard on 10/01/2001 and judgment was reserved. However, at that stage counsel for both the parties had requested that the judgment be held over for at least two weeks in order to give an opportunity to the parties to reach an amicable settlement regarding the controversy in the suit. More than two weeks have passed. However, there is no information about any settlement having been reached between the parties. We accordingly proceed to pronounce the judgment.

( 2 ) AN Agreement to Sell dated 5/01/1991 in respect of properties bearing Nos. 636, 637-1/2, 641-1/2 and 642 situated at Chandni Chowk was alleged to have been executed between the appellant and respondent. As per that Agreement, respondent had agreed to sell the aforesaid properties to the appellant for a total consideration of Rs. 3. 80 lakhs. Rs. 50,000. 00 was paid by the appellant to the respondent as earnest money. Respondent was to obtain income tax clearance from the Income-tax Department.

( 3 ) THE appellant herein filed Suit No. 863/98 which was a suit for permanent injunction against the respondent herein in the Court of Senior Civil Judge, Delhi. After mentioning about the aforesaid Agreement to Sell, the appellant made certain averments which are noted in the later part of this judgment. It was also alleged in the said suit that on 6/11/1998 when the appellant was sitting in the business premises of M/s. Saboo Silks and Sarees, two persons came to the said business premises, one of them claiming to be a property dealer and the other claiming to be the intending buyer of the said property. The appellant, therefore, filed the said suit for injunction seeking decree of permanent injunction restraining the respondent from alienating by way of sale, mortgage, gift, exchange or otherwise all that portion of the suit properties. In the said suit status quo order dated 16/11/1998 was passed by the Court of Shri A. K. Chaturvedi, Civil Judge, Delhi.

( 4 ) WHILE this suit was pending, appellant filed another Suit No. 93/99 (out of which present appeal arises ). This suit was for specific performance of the contract and the appellant prayed for decree of specific performance of Agreement to Sell dated 5/01/1991 thereby directing the respondent to transfer the ownership of the suit properties in the name of the appellant by duly executing and registering Sale Deed and to attorn the tenants therein in favour of the appellant after due intimation to such tenants.

( 5 ) BY the impugned judgment dated 28/05/1999, learned Additional District Judge had been pleased to reject the plaint on the ground that this suit was barred by the provisions of Order II Rule 2 of Code of Civil Procedure. It is held that the cause of action for a suit for specific performance had arisen when the first suit, namely, Suit No. 863/98 was filed and, therefore, the appellant should have included this relief in the said suit itself. By omitting to do so, the appellant had precluded himself from suing for this relief afterwards and, therefore, the second suit was not maintainable.

( 6 ) THE learned counsel for the appellant in challenging the reasoning of the learned trial Court submitted that the cause of action at the time of filing the first suit was not same on which the instant suit for specific performance was filed. His submission was that the respondent was trying to sell the properties to some third party and the appellant had no option but to file the suit for injunction at that point of time, seeking restraint order against the respondent from selling the properties to third party. It is only in the written statement filed in the first suit that the intention of the respondent became clear to the effect that he did not want to sell the properties to the appellant and that is why appellant filed the second suit for specific performance. The said second suit is, therefore, founded on a different cause of action which is based on the stand taken b