JUDGMENT :

AMARINDER SINGH GREWAL, J.

1. The present appeal has been preferred by the appellant-defendant against the judgment and decree dated 17.05.1996 passed by the learned 1^st Appellate Court whereby the appeal preferred by him against the judgment and decree dated 25.10.1994 passed by the learned trial Court, decreeing of the respondents-plaintiffs, has been dismissed while upholding the aforesaid judgment of the learned trial Court.

2. For the sake of convenience, the parties are being described in the manner in which they were before the learned Trial Court.

3. In brief, the facts are that the plaintiffs instituted a civil suit for specific performance on the basis of an agreement to sell dated 26.08.1988, whereby the defendant agreed to sell the suit property for a total sale consideration of Rs. 75,000/-. At the time of execution of the agreement, the defendant received Rs. 51,000/- as earnest money, while the balance sale consideration of Rs. 24,000/- was agreed to be paid at the time of execution and registration of the sale deed i.e. on 31.05.1990. The plaintiffs were always ready and willing to perform their part of the contract and had repeatedly requested the defendant to execute the sale deed. On 31.05.1990, they appeared before the office of the Sub-Registrar, Nuh, along with the balance sale consideration and stamp expenses, but the defendant avoided execution of the sale deed. It was further pleaded that the plaintiffs had earlier instituted a suit for permanent injunction on 27.07.1989 in respect of the same property, wherein an application under Order VI Rule 17 CPC was also filed seeking amendment of the plaint. However, the said suit for permanent injunction was withdrawn on 31.10.1991 and the present suit for specific performance came to be instituted.

4. Upon notice, the suit was contested by the defendant by filing a written statement, wherein the execution of the agreement to sell dated 26.08.1988 and the receipt of Rs. 51,000/- as earnest money were not disputed. However, it was asserted that the plaintiffs failed to arrange the balance sale consideration of Rs. 24,000/- and did not appear before the Sub-Registrar, Nuh on 31.05.1990, whereas the defendant claimed to have remained present in the office of the Sub- Registrar on the said date. It was further pleaded that the plaintiffs were not ready and willing to perform their part of the contract and lacked sufficient funds to pay the balance consideration. The defendant also raised objections regarding maintainability, locus standi, limitation, estoppel, improper valuation and insufficiency of court-fee, and specifically pleaded that the present suit was barred under Order II Rule 2 CPC, as the plaintiffs had earlier filed a suit for permanent injunction based on the same agreement to sell qua suit property, which was subsequently withdrawn without seeking permission of the Court to file a fresh suit.

5. On the basis of pleadings, the learned trial Court framed as many as ten issues including relief. After appreciating the oral as well as documentary evidence, the learned trial Court recorded categorical findings that the execution of the agreement to sell dated 26.08.1988 stood proved, the receipt of Rs. 51,000/- as earnest money was admitted, and the plaintiffs had successfully proved their continuous readiness and willingness to perform their part of the contract. The learned trial Court further held that the objections raised under Order II Rule 2 CPC were not attracted, as the earlier suit for permanent injunction had not been decided on merits. The plea that the plaintiffs had insufficient funds to execute the sale deed on the target date was rejected on the basis of evidence on record. Consequently, the suit for specific performance was decreed, vide judgment and decree dated 25.10.1994.

6. Aggrieved by the said judgment and decree of the learned trial Court, the defendant preferred an appeal before the learned 1^st Appellate Court, which also stoo