The revision is filed by the defendant in O.S. No.102/2006 on the file of the Sub Court, Kochi, for a decree of specific performance of an agreement of sale.

Petitioner/defendant in his written statement, among other contentions, resisted the suit claim as barred under O.II R.2 of C.P.C. Such a contention was raised for the reason that before instituting the present suit, the respondent/plaintiff had instituted another suit basing his claim on the very same agreement of sale for a decree of perpetual prohibitory injunction. After settling of the issues in the suit and when it came up for evidence, the petitioner/defendant moved an application for framing an additional issue whether the suit is maintainable. The learned Sub Judge thereupon framed an additional issue and it was considered as a preliminary issue. After hearing both sides, the learned Sub Judge passed the order impugned in the revision holding that the suit is maintainable. Correctness and propriety of that order is challenged in the revision.

2. I heard the counsel for the petitioner. The learned counsel for the petitioner argued before me that since the plaintiff had omitted to seek for specific performance