Manmohan Sarin, J.

( 1 ) BY this order I would be disposing of the objection to the maintainability of the suit under Order II Rule 2 of the Code of Civil Procedure.

( 2 ) PLAINTIFF has filed the present suit for grant of a decree of specific performance of the agreement dated 4. 7. 1991, in respect of Flat No. 8-2/98/vi, Safdarjung Enclave, New Delhi.

( 3 ) WRITTEN Statement to the plaint has been filed, objecting to the maintainability of the suit. One of the grounds taken is that the plaintiff had earlier filed a suit for permanent and mandatory injunction, bearing No. 54/92, in the Court of Senior Sub-Judge, Delhi on the same facts and cause of action, and with a similar prayer. The said suit had been dismissed as withdrawn on the statement made by the counsel for the plaintiff. The defendant, therefore, contends that the present suit is barred under the provisions of Order II Rule 2 of the Code of Civil Procedure.

( 4 ) WHEN the present suit had come up before the Court on 25. 5. 1992, the question of maintainability of the suit was raised. On 27. 5. 1992, summons were directed to be issued, subject to the question of applicability of Order II Rule 2, CPC.

( 5 ) LEARNED counsel for lhe partics have now been heard on lhe queslion of maintainability of the suit viz. the objection under Order II Rule 2, CPC.

( 6 ) LET us notice the salient facts for an appreciation of the matter in issue.

( 7 ) THE plaintiffs case, in brief, is that he had paid Rs. 1,00,000. 00 to lhe defendant No. 1 as earnest money for purchase of flat No. A-1/98/1/1, Safdarjung Enclave, New. Delhi for a total consideration of Rs. 6. 17 lakhs. The balance consideration of Rs. 5. 17 lakhs was to be paid to the defendant on or about 30. 9. 1991, upon completion of for malities and execution of documents. A receipt dated 4-7-1991 was executed. Defendants 2 and 3 arc brokers with the intervention of whom, the agreement was entered into. Despite the plainliffs request defendant did not execute the sale deed. No heed was paid by defendant to the request for handing over the possession or to return double the earnest money. This led the plaintiff to file the first suit i. e. for permanent injunction and mandatory injunction before the Senior Sub Judge, Delhi. The plaintiff prayed as under:

"it is, therefore, prayed that this Hon ble Court be pleased to pass an order restraining the defendants, particularly defendant No. 1, not to sell or part with the property to any person by means of permanent injunction. It is further prayed that defendants particularly defendant No. l be directed to implement agreement dated 4. 7. 1991 or to may be directed to pay damages. "

( 8 ) PLAINTIFF withdrew the suit before the Senior Sub-Judge on 28. 4. 1992 after making the following statement:

"i withdraw the suit on instructions from my client. sd/- Plaintiffs Advocate. Order: "in view of the statement made by the counsel for the plaintiff the suit is dismissed as withdrawn. Parties are left to bear their own costs. File be consigned to record. "

( 9 ) THE plaintiff then instituted the present suit for specific performance on 8. 5. 1992. It would be relevant to reproduce what the plaintiff averred with regard to the earlier suit instituted, in the present suit. Para 13 of the plaint reads as under:

"that the plaintiff was ill-advised to file a suit for injunction in the trial court wherein a plea of mandatory injunction was also asked for in regard to the agreement dated 4th July 1991 indirectly asking for specific performance wherein the total value of the contract for sale is Rs. 6. 17 lakhs, which is much beyond the territorial jurisdiction of the trial courts. One of the objections raised in the written statement in the said suit was lack of territorial jurisdiction. Upon taking proper advice, the plaintiff withdrew the said suit on 28th April, 1992 and the plaintiff is, thus, instituting the present suit. The earlier suit of the plaintiff was even incompetent and not legally maint

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