The defendant in a suit for specific performance of agreement of sale is the petitioner herein. He filed an application before the trial Court for rejection of plaint under Order 7 Rule 11 CPC on the ground that the suit is barred under Order 2 Rule 2 CPC. The trial Court dismissed the application and thus, the present Civil Revision Petition is filed by the defendant.

2. The respondents herein as plaintiffs filed the suit in O.S.No.188 of 2011 on the file of the Principal District Court, Erode (subsequently transferred to Fast Track Court, Gobichettipalayam), for specific performance of the sale agreement, dated 1.2.2010. It is their case that the defendant as the owner of the suit property, entered into the said sale agreement with the plaintiffs, agreeing to sell the suit property for a sum of Rs.14 lakhs and on the date of agreement, the plaintiffs paid a sum of Rs.2 lakhs as advance. According to the plaintiffs, they were always ready and willing to pay the balance amount to get the sale deed executed in their favour, but the defendant was evading the same. Therefore, after issuing notice on 3.3.2010, the plaintiffs have filed the above suit for the relief as stated supra.

3. The defendant filed I.A.No.17 of 2012 under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the very same plaintiffs filed earlier suit in O.S.No.186 of 2010 before the District Munsif Court, Sathyamangalam against the present defendant and another, for mandatory injunction and they intentionally omitted therein to sue for specific performance of the agreement and by such conduct, they relinquished the said claim. The said application was resisted by the plaintiffs. The trial Court rejected the said application holding that the present suit is not hit by Order 2 Rule 2 CPC.

4. Mr.N.Manokaran, learned counsel for the petitioner/defendant submitted that the respondents/plaintiffs having filed earlier suit for mandatory injunction, ought to have prayed the relief of specific performance also in the same suit, since the cause of action for filing the present suit was very much available on the date of filing of the earlier suit itself. Therefore, he submitted that without seeking the leave of the Court in the earlier suit, filing of the present suit is hit by Order 2 Rule 2 CPC. In support of his submissions, he relied on the following decisions:

(a) 2013 (1) SCC 625 (Virgo Industries (Eng.) (P) Ltd. Vs. Venturetech Solutions (P) Ltd.;

(b) 2014 (6) SCC 424 (Coffee Board Vs. Ramesh Exports (P) Ltd) and

(c) 2010 (5) CTC 563 (Madras High Court) (Sornam Vs. A.Venugopal);

5. Per contra, Mr.V.Manohar, learned counsel for the first respondent submitted that the earlier suit was filed for mandatory injunction to direct the second defendant therein to handover the original sale agreement, dated 1.2.2010 executed by the first defendant therein (defendant in the present suit) and for consequential prayer for permanent injunction restraining the first defendant therein from alienating or creating encumbrance over the suit property till the date of filing of a suit for specific performance. Thus, he contended that the relief sought for in the earlier suit, was for different purpose, namely to get the original sale agreement, which was admittedly in the possession of the second defendant therein, who was not party to the suit agreement. Thus, he contended that unless the plaintiffs get the said agreement, they cannot file the present suit for specific performance. Accordingly, the learned counsel submitted that the cause of action for filing the earlier suit and the relief sought for therein, were totally different and therefore, it cannot be said that the present suit is hit by Order 2 Rule 2 CPC. He further submitted that the plaintiffs' entitlement to file the present suit was curtailed on the date of filing the earlier suit, as they were not in possession of the original sale agreement.

6. Heard the learned counsel appearing on either si