A contingent contract is not specifically enforceable until the contingency occurs.

( 1 ) THIS appeal is directed. against judgment dated 7-1-77 of the learned Single Judge by which he dismissed the suit of the appellant plaintiff for specific performance for an alleged agreement dated 22-4-70 to allot and sell by execution and registration of sale deed in respect of 1400 sq. ft. space on the 13th floor of the building known as "surya Kiran" at 19, Curzon Road, New Delhi and to put him in full possession of the said property.

( 2 ) THE allegations are that he paid a sum of Rs. 55,000 to the respondent, towards the purchase price of flat Nos. 3 and 4 to be constructed on 13th floor of the aforesaid building, as part payment vide receipt No. 1130 dated 22-4-70. Later on. however, the appellant was told by the respondent that the plans for the 13th floor might not be approved. So on 18-4-70 appellant wrote to the respondent that in view of uncertainty, the respondent may retain Rs. 5,000 against each flat and refund the balance to the appellant. He further wrote that in case plan for the 13th floor was approved he will take those flats on payment of the due amount; otherwise he will be entitled to the refund of the said amount of Rs. 10,000 lying with the respondent. The respondent refunded Rs. 45. 000 on 18-8-70 to the appellant. In response to an inquiry vide letter dated 7-1-71 the respondent informed the appellant that they were not in a position to inform him when the 13th floor will be sanctioned, though they were pursuing the matter. The respondent thereafter returned Rs. 10,000 through cheque with interest along with letter dated 19-7-71, stating that the additional FAR had not been sanctioned by the appropriate authorities. The appellant wrote back: on 27-7-71 that whenever sanction for additional FAR was received by the respondent, he will have priority to get those flats. The respondent confirmed vide letter dated 30-7-71 that if the additional FAR against the land taken for road cutting was sanctioned and they were in a position to build additional office space on the 13th floor, they shall certainly allow him the flats and that it would not be sold to any other individual. Later on the appellant came to know that the respondent had constructed some portion of 13th floor and so he addressed a letter dated 16-8-72 to the respondent asking for information as to what area they had constructed on the 13th floor so that he may send the amount for the same at the agreed and settled rate. The respondent informed that no additional FAR was sanctioned and so they could not construct any office space on the 13th floor. However, a restaurant had to be provided for the said premises and to facilitate that, they had to reduce the floor area of the flats on various floors, and the space thus saved was utilised for constructing a restaurant room on the 13th floor. It appears that the respondent also advertised in the Hindustan Times dated 21-8-72 for leasing the 13th floor space measuring 150 sq. mts. The appellant was then obliged to file a suit for permanent injunction seeking to restrain the respondent from transferring, giving on lease or on contract any construction made on the 13th floor. On a specific objection being taken regarding the maintainability of the suit by the respondent, the appellant withdrew that suit and filed the present suit as aforesaid. The respondent contested the suit raising various pleas, giving rise to the following issues :- ISSUES

1. Whether the plaint does not disclose any cause of action ? If not, what is the effect ?

2. Whether the suit is barred for the reasons stated in paragraphs 5 and 6 of the preliminary objections in the written statement ?

3. Whether the suit is barred under Order 23 Rule 1 (iii) of the Code of Civil Procednre for the reasons stated in paragraph 7 of the preliminary objections in the written statement ?

4. Whether the suit is barred by principles of resjudicata ?

5. Whether the alleged contract between the parties is not specifically enforceable in v