A suit for specific performance is barred under Order 2 Rule 2, Code of Civil Procedure, if the plaintiff omits to sue for specific performance in an earlier suit based on the same cause of action.

V.K.Jhanji, J.

1. This is plaintiffs second appeal directed against the judgment of the Court below whereby suit of the plaintiffs for possession by way of specific performance of the agreement of sale dated 21.12.1984 relating to the house in dispute has been dismissed.

2. In brief, the facts are that one Durga Devi now represented after her death by her daughter and daughters daughter (respondent (i) & (ii) herein) was the owner of the house measuring 475 sq. yards in Ballabgarh. According to the plaintiffs, she agreed to sell the house to the plaintiffs for a consideration of Rs. 2.12,000/- and in this regard, executed agreement of sale on 21.12.1984. At the time of execution of the agreement, plaintiffs paid a sum of Rs. 5,000/- as earnest money and the remaining consideration was to be paid before the Sub-Registrar at the time of Registration of the said sale-deed. In respect of half portion of the house, plaintiffs were to get the sale-deed executed and registered on or before 31.3.1985 on payment of half of the amount and for the remaining half portion, plaintiffs were to get the sale-deed executed and registered on or before 30.6,1985. It is the case of the plaintiffs that they had always been ready and willing to perform their part of the contract in accordance with the terms of agreement of sale and for that matter, they approached Durga Devi to execute the sale-deed in accordance with the terms of the agreement, who in turn with a malafide intention demanded a sum of Rs. 5000/- over and above the sale consideration already agreed between the parties, but the plaintiffs did not agree to the said unjust and illegal demand of Durga Devi. It is further the case of the plaintiffs that Durga Devi was informed through telegram dated, 27.3.1985 to come to the office of the Sub-Registrar on 29.3.1985, because 30.3.1985 and 31.3.1985 were holidays, and to execute the sale-deed in favour of the plaintiffs but she did not come present as requested. Instead she threatened to sell the suit property in favour of a third party and so, under compelling circumstances two suits for injunction for restraining her from selling the suit property to the third party, were filed. Plaintiffs also averred in their plaint that after the institution of suits, plaintiffs came to know that Kulbhushan, respondent No.2 (defendant No.2 in the suit) had filed an application before the Deputy Commissioner, Faridabad, Under Section 41 of the Indian Stamp Act, seeking permission to make up the deficiency on the amount of stamp duty in respect of agreement of sale dated 2.10.1984 regarding the house in dispute. Plaintiffs objected to the course adopted by respondent No.2. The Deputy Commissioner, Faridabad, rejected the application and did not make any endorsement on the said agreement. Plaintiffs alleged that agreement dated 2.10.1984 set up by respondent No.2 is a forged and fictitious document and has been created in collusion with Durga Devi. Plaintiffs thus, prayed that they are entitled to the decree for specific performance of the contract of sale dated 21.12.1984 and in the alternative, decree for recovery of Rs. 2,12,000/- as damages. On notice of the suit, Durga Devi and Kulbhushan (respondents 1 and 2 respectively) contested the suit by filing separate written statement. In her written statement, Durga Devi alleged that prior to the agreement of sale in favour of the plaintiffs, she on 2.10.1984 had contracted to sell with Kulbhushan (respondent No.2) the house in dispute for a consideration of Rs. 2,12,000/-. She further submitted that Kulbhushan had paid Rs. 1000/- as earnest money at the time of execution of the agreement and further paid Rs. 4000/- on 12.10.1984. She also submitted that Kulbhushan was put in possession of the house in part performance of the contract. In regard to the agreement of sale in favour of plaintiffs, she submitted that one Subhash Grover, a deed-writer of Ballabgarh, was doing the business of real estate