( 1 ) OUT of six issues framed on 27th January, 2000, Issues 1 and 5 which were treated as preliminary issues, are as under:

>" (1) Whether the present suit is barred under Order II, Rule 2, Civil Procedure Code by virtue of a previously instituted suit for injunction in the District Courts having been dismissed ? OPD (5) Whether the specific performance of the contract cannot be granted in view of the specific stipulation in the contract providing for forfeiture of the earnest money paid by the purchaser and seller s liability to pay double the earnest money in case of refusal to complete the bargain ? OPD"

ISSUE No. 1: It is admitted case of parties that the plaintiff before instituting this suit had filed Suit No. 673/89 which was dismissed in default under Order IX, Rule 8, Civil Procedure Code on 28th September, 1992. Application filed under Order 9, Rule 9 and Section 151, Civil Procedure Code by the plaintiff for setting aside that order was dismissed in default on 3rd April, 1995. Application filed for restoration of the said application was also dismissed in default on 12th August, 1997.

( 2 ) SUBMISSION advanced by Mr. H. L. Narula for defendant was that the present suit had also Suit No. 673/89 are based on the same cause of action and as plaintiff did not seek the relief of specific performance which is now being sought, in said Suit No. 673/89, this suit is barred by Order II, Rule 2 (3), Civil Procedure Code. On the other hand, contention advanced by Mr. Vinod Kumar Srivastava for plaintiff was that in both the suits causes of actions are different and, therefore, provision of said Rule 2 (3) of Order 11 has no applicability. Certified copy of plaint in said Suit No. 673/89 filed by the defendant is placed on pages 1 to 14 on Part III file. In that suit the relief claimed by the plaintiff was to restrain the defendant by issuing decree of prohibitory injunction from selling/mortgaging/encumbering or otherwise parting with possession as also causing any additions/alterations/modifications and/or damages to property No. CU/1, Pitampura, Delhi which was agreed to be sold under the sale agreement dated 30th June, 1989 by the defendant/owner to the plaintiff for a total consideration of Rs. 26,65,000. 00. Decree of mandatory injunction was also sought to be passed against the defendant to apply and obtain permission/ sanctions/clearances from the prescribed authorities for transfer of said property in favour of the plaintiff. Certified copy of the written statement filed by the defendant is placed on pages 14 to 25. By way of Preliminary Objection No. 1 in the written statement it had been pleaded that suit is barred under Section 41 (h) (i) of the Specific Relief Act inasmuch as equally efficacious remedy of specific performance of the agreement dated 30th June, 1989 was not sought by the plaintiff. On a bare reading of the plaints in both the suits it is manifest that the averments made in present suit are the reproduction of the allegations made in previous Suit No. 673 / 89. That being so, I am not inclined to agree with the said submission advanced on behalf of plaintiff that causes of actions in both the suits are distinct.

( 3 ) IT is not in dispute that by the time Suit No. 673/89 came to be filed, four months time for execution of sale deed of property bearing No. CU/1, Pitampura by the defendant as provided in the agreement dated 30th June, 1989 had elapsed and it was thus open to the plaintiff to have filed suit for specific performance of the said agreement and in alternative for refund of amount of Rs. 2. 00 lakhs paid by way of earnest money as also for damages against the defendant. However, in said Suit No. 673/89 neither relief for specific performance of said agreement was sought nor any application filed under Order II, Rule 2 (3) seeking leave of the Court to sue for the relief of specific performance afterwards. In this background, present suit is clearly barred by said under Order 2,. Ru