A plaintiff cannot omit to sue for a portion of his claim in respect of a cause of action and then sue for the omitted portion afterwards without the leave of the Court.

V.K.Jhanji, J.

1. This second appeal by the plaintiff has arisen out of the suit filed by him for recovery of Rs. three lacs. Both the Courts below have dismissed the suit of the plaintiff.

2. It is the case of plaintiff that respondent No. 1, namely, Anil Kumar came to him in the first week of April, 1990 and told him that he is exclusive owner in possession of land measuring 40 Killas and is badly in need of money and as such, he wants to dispose of the same at the earliest. Plaintiff alleged that keeping in view the assurance given by respondent No. 1, he agreed to purchase the same and the bargain was struck between him and respondent No. 1 and accordingly, a sum of Rs. 1,50,000/- was paid towards earnest money. It is further his case that respondent No. 1 never disclosed that he is not the exclusive owner but he is owner along with respondents 2 and 3. Plaintiff further alleged that he was always ready and willing to abide by the terms of the agreement to sell, but the respondents failed to execute the sale-deed, In order to recover the earnest money and damages, the present suit was filed by the plaintiff for recovery of Rs. three lacs, i.e. Rs. 1,50,000/- paid as eanest money and Rs. 1,50,000/- as liquidated damages. Respondents on notice of the suit raised various objections, including the one that plaintiff was never ready and willing to perform his part of the agreement. Respondent No. 1 also stated that respondents 2 and 3 had authorised respondent No. 1 to enter into agreement in question and respondents 2 and 3 had always owned the agreement executed by respondent No. 1 on their behalf. Another objection taken by the respondents was that the suit was barred under Order 2 Rule 2, Code of Civil Procedure. Both the Courts below have dismissed the suit on finding that the plaintiff was never ready and willing to perform his part of the agreement and that the suit is also barred under Order 2 Rule 2, Code of Civil Procedure.

3. In this second appeal, it has been contended by the counsel for appellant that the finding of the Courts below in regard to plaintiff being not ready and willing to perform his part of the agreement is erroneous, He also contended that the suit previously filed by the appellant was for injunction as the plaintiff apprehended that respondents were out to sell the property to some other person other than the plaintiff and therefore, cause of action in that suit being different than the one in the present file, the finding that the suit is barred under Order 2 Rule 2, Code of Civil Procedure, is also erroneous.

4. After hearing the counsel and on going through the record, I am of the view that this appeal is devoid of any merit. It is not in dispute that in the agreement, it had been stipulated that the sale-deed would be executed on 15.6.1990. Though it is the case of the plaintiff that he was ready and willing to perform his part of the agreement and he possessed the balance sale consideration, but on record the plaintiff has miserably failed to prove that on the date the sale-deed was to be executed, he possessed Rs. 22.5 lacs, i.e. balance sale consideration. In fact after the due date, plaintiff filed suit for permanent injunction restraining the respondents from, transferring and disposing of the suit land and in the alternative, prayed mandatory injunction directing the respondents to comply with the terms and conditions of agreement dated 6.4.1990. Respondents on notice of the suit, submitted that the plaintiff was never ready with the balance sale consideration or expenses for stamps and registration as on 15.6.1990 or at any time prior or after the said date. Respondents in their written statement gave an offer that they are still ready and willing to perform their part of the contract and even they asked the plaintiff to fix a date and intimate them in writing for execution of the sale-deed. Respondents averred:

"Although the plaintiff has not been ready and willing to perform hi