JUDGMENT: Defendants 1 and 2 in O.S.No.3577 of 1984 on the file of the 8th Assistant Judge, City Civil Court, Madras, are the appellants in S.A.No.1997 of 1989. The third defendant in the said suit is the appellant in S.A.No.314 of 1990. 2. The first respondent herein filed the suit for specific performance and direction to defendants 1 to 3 to execute a sale deed in respect of the suit property in his favour on payment of the balance of sale consideration by him on the following averments: On 21.12.1981 he entered into an agreement with the first defendant for purchasing three items of properties, namely 1.68 acres in S.No.725/2A, 0.2 acre in S.No.725/2C, and 0.3 acre in S.No.275/2D for a total consideration of Rs.11,250. He paid Rs.2,500 as advance and subsequently paid amounts, in all Rs.6,200 to the first defendant. He has always been ready and willing to get the sale completed. The first defendant has been evading. He had executed a power of attorney in favour of the second defendant and in pursuance of the same the suit property had been conveyed to the third defendant collusively. The third defendant knew about the agreement for sale in favour of the plaintiff. He, after his purchase, attempted to trespass into the suit property. The plaintiff therefore filed O.S.No.716 of 1983 for an injunction restraining the defendants from interfering with his possession and enjoyment of the suit property. The present suit is a comprehensive one for specific performance. 3. Defendants 1 and 2 set up a defence as follows: The previous suit and the present suit relate to the same property. The previous suit was withdrawn. The present suit is hit by O.2, Rule 2, C.P.C. The suit property does not lie within the territorial jurisdiction of this Court or the City Civil Court, Madras. The first defendant also does not reside within the jurisdiction of the Court. The agreement for sale was actually taken by one Damodaran, but benami in the name of the plaintiff. Only 84 cents in S.No.725/2A is available. S.No.725/2C did not belong to the first defendant. Damodaran, who took the sale agreement, was apprised of the same, and thereafter, the suit agreements was cancelled by a mutual agreement. After that, the first defendant executed a power of attorney in favour of the second defendant, who sold 52 cents in S.No.725/2A to the third defendant. S.No.725/2C did not belong to the first defendant. Damodaran, who took the sale agreement, was apprised of the same, and thereafter, the suit agreements was cancelled by a mutual agreement. After that, the first defendant executed a power of attorney in favour of the second defendant, who sold 52 cents in S.No.725/2A to the third defendant. The plaintiff himself has conveyed 84 cents in the southern portion of S.No.725/2A to one Kannammal and Manickammal. The plaintiff was not put in possession of the property. There was no collusion between the defendants. 4. The third defendant besides reiterating the contentions raised by defendants 1 and 2, further stated that the sale in his favour was valid and the plaintiff’s remedy, if any, was to file only a suit for damages. 5. On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence held that it had territorial jurisdiction to try the suit, that the suit was barred under O.2, Rule 2, C.P.C., that the plaintiff was not put in possession of the suit property in pursuance of the sale agreement, that the agreement had been taken benami in the name of the plaintiff, that the same was cancelled, and that the plaintiff was, therefore, not entitled to specific performance. By judgment and decree, dated 30.6.1986, the trial Court dismissed the suit. 6. The plaintiff filed an appeal in A.S.No.137 of 1987 before the Principal Judge, City Civil Court, Madras. The learned Principal Judge by judgment and decree dated 18.2.1988 allowed the appeal and decreed the suit for specific performance, directing defendants 1 and 3 to execute sale of the suit property in favour of the plaintiff on his depositing the balance of sale consideration into Court within one month thereafter. It is an against that, the present second appeals have been filed. 7. At the time of admission, the following substantial questions of law were raised for decision: (1) Whether the suit for specific performance is not barred by O.2, Rule 2, C.P.C.? (2) Whether the Court had jurisdiction to entertain the suit and whether Sec.16, C.P.C. is not a bar? (3) Whether the established facts and circumstances and oral and documentary evidence did not prove cancellation and abandonment of the agreement, Ex.A.1? (2) Whether the Court had jurisdiction to entertain the suit and whether Sec.16, C.P.C. is not a bar? (3) Whether the established facts and circumstances and oral and documentary evidence did not prove cancellation and abandonment of the agreement, Ex.A.1? (4) Whether the facts and circumstances and documentary evidence did not prove that the plaintiff was not the real agreement holder under Ex.A.1? 8. Mr.R.Krishnaswami, learned Senior Counsel for the appellant in S.A.No.314 of 1990, and Mr.A.Venkatesan, learned counsel for the appellants in S.A.No.1997 of 1989, made the following submissions: The agreement set up by the plaintiff had already been cancelled/given up/abandoned. The suit was barred by O.2, Rule 2, C.P.C. as in respect of identical facts, the plaintiff had filed a suit for injunction or obtaining any permission from the Court. The third defendant was a bona fide purchase for value without notice of the sale agreement with the plaintiff. The properties were situated outside the jurisdiction of the City Civil Court, Madras, and therefore the City Civil Court lacked territorial jurisdiction to entertain the suit. The agreement was vague, no extent was given in the agreement, no documents given to the plaintiff, not only that, the plaintiff executed Exs.B.1 and B.2 in respect of portions of the properties as power of attorney holder in favour of third parties, and that would itself show that the agreement had been cancelled. The plaintiff was also not permitted to take possession of the properties. He was permitted as a licensee to level the property. The plaintiff had not come to Court with clean hands. The power of the Court under the Specific Relief Act being discretionary, the plaintiff could not be granted any relief. 9. The learned counsel took me through the pleadings and the oral and documentary evidence. They also submitted that the plaintiff’s evidence as P.W.1 has to be rejected in toto. He does not know anything. The document provided for a period of four months for completing the sale transaction and more than two years after the agreement he had approached the Court. He had filed the suit for the entire property after Exs.B.1 and B.2. It had been filed with ulterior motive. Having regard to his conduct, the lower appellate Court was in error in granting specific performance. 10. He had filed the suit for the entire property after Exs.B.1 and B.2. It had been filed with ulterior motive. Having regard to his conduct, the lower appellate Court was in error in granting specific performance. 10. Mr.A.Chidambaram, learned counsel for the contesting first respondent in S.A.No.314 of 1990 submitted that the Court had territorial jurisdiction, that the suit was not barred under O.2, Rule 2, C.P.C., in as much the second suit came to be filed before the first suit was withdrawn, no latches or ulterior motive would arise. D.W.3, who had deposed in favour of the defendants, himself was an attestor, and therefore he is estopped from contending contrary to the terms of the agreement. The third defendant was not a bona fide purchaser. The error committed by the trial Court had been rightly rectified by the lower appellate Court, and no exception could, therefore, be taken to the decision by the lower appellate Court. 11. Both the counsel relied on a number of authorities. I will refer to them in the course of the judgment. 12. Let us first examine the position whether the suit is barred by O.2, Rule 2, C.P.C. 13. The learned counsel relied on the following decisions in support of their contention that the suit is barred by the principles of O.2, Rule 2, C.P.C. (1) In R.S.Senthamaraikannan v. The Presiding Officer, Debts Recovery Tribunal for Tamil Nadu, Kerala, Pondy, (1997)2 M.L.J. 394 : (1997)2 C.T.C. 695 , S.S. Subramani,J. [as the learned Judge then was] followed the decisions of the Supreme Court in Deva Ram v. Ishwar Chand, (1996)6 S.C.C. 733: (1996)1 M.L.J. (S.C.) 88 The question that came up for consideration before the Supreme Court was, whether the second suit was barred under O.2, Rule 2,. The Supreme Court held that if under the same course of action, several reliefs could be claimed, the plaint must contain all the reliefs and the second suit could not be said to be barred by cause of action under O.2, Rule 2, C.P.C. if only the subsequent suit was based on different cause of action. If the plaintiff was entitled to a larger relief based on the same cause of action the plaintiff was not entitled to have the same split up. The principle behind this is, that the defendant should not be dragged to Court twice, and that would amount to harassment. If the plaintiff was entitled to a larger relief based on the same cause of action the plaintiff was not entitled to have the same split up. The principle behind this is, that the defendant should not be dragged to Court twice, and that would amount to harassment. The learned Judge followed the decision of the Supreme Court and held that when the plaintiff is entitled to a larger relief based on the same cause of action, he is not entitled to have the same split up. (2) In Ashok Aggarwal v. Bhagwan Das Arora, A.I.R. 2001 Delhi 107, the question which arose was almost under similar circumstances, as in the present case. The plaintiff in the suit filed an earlier suit seeking prohibitory injunction etc. which was dismissed for default. At the time of filing of the second suit, prescribed time for executing the sale deed or claiming refund of earnest money expired. The plaintiff did not seek the relief of specific performance of the said agreement or an alternative relief of refund of earnest money as also damages. It was held that the second suit was not maintainable. In the earlier suit neither the relief for specific performance nor the alternative relief of refund of earnest money as also damages was sought for. (3) In Kamal Kishore Saboo v. Nawabzada Humayun Kamalhasan Khan, A.I.R. 2001 Del. 220 there was a suit filed for permanent injunction restraining the respondent from alienating the suit properties. Averments in the suit and cause of action disclosed therein stated that the respondent was not willing and failed to perform his part of the contract. The appellant claimed only the relief of injunction and omitted to claim the relief of specific performance. It was held that the subsequent suit for specific performance was not maintainable. (4) In T.N. Electricity Board v. T.N.Alloy Foundary Co. Ltd., (2001)3 M.L.J. 275 : (2001)4 C.T.C. 174 it has been held by a Bench of this Court that it is the duty of the plaintiff to claim for relief to which he is entitled arising from same cause of action in the same suit. (4) In T.N. Electricity Board v. T.N.Alloy Foundary Co. Ltd., (2001)3 M.L.J. 275 : (2001)4 C.T.C. 174 it has been held by a Bench of this Court that it is the duty of the plaintiff to claim for relief to which he is entitled arising from same cause of action in the same suit. (5) In Sidramappa v. Rajashetty, (1970)1 S.C.J. 857: A.I.R. 1970 S.C. 1059 it has been held as follows: “The requirement of O.2, Rule 2, is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action.” Cause of Action “ means the” Case of action for which the suit was brought“. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Where the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff’s subsequent suit is not barred by O.2, Rule 2.” (6) In T.N.Linga Gounder v. Kappa Gowder, (1976)1 M.L.J. 363 the plaintiff filed a suit for recovery of possession of the southern half of a certain survey number alleging wrongful possession by the defendant. On that date, he did not have title to the northern portion. Subsequently, he file a suit for declaration of his title and recovery of possession of the northern portion. The subsequent suit was decreed on the ground that the findings in the earlier suit operated as res judicata. The first defendant who was also claiming title and who was in possession of the property appealed. It was held by Mohan, J. (as the learned Judge then was), when the cause of action for the earlier suit was trespass, while in the latter suit it was different. The causes of action being different the findings in the prior suit would not operate as res judicata. It was held by Mohan, J. (as the learned Judge then was), when the cause of action for the earlier suit was trespass, while in the latter suit it was different. The causes of action being different the findings in the prior suit would not operate as res judicata. (7) In Abnashi Singh v. Lalwant Kaur, A.I.R. 1977 P.& H., it has been held as follows: “The rule contained in O.2, Rule 2 is designed to counteract two evils, namely, the splitting up of claims and the splitting up of remedies. At the same time, before the principle contained in this provision can be applied, three conditions must be satisfied. Firstly, the earlier suit and the second suit must arise from the same cause of action and, secondly, the two suits must be between the same parties, and thirdly the earlier suit must have been decided on merits. In that case the members of a Hindu undivided family brought a suit for declaration that the printing press business being the ownership of the Hindu undivided family, the defendant, a widow of the deceased coparcener who obtained a licence to run the press in her own name, should be restrained from running the press in her own name. This suit though decreed by the trial Court was dismissed in appeal on the finding that the family had already disrupted in 1944 and no return was proved. The plaintiffs thereupon filed a second suit for partition of the entire property of the family and for accounts against the defendant.” It was held - “that the causes of action for the two suits being quite different, the necessary condition for applicability of O.2, Rule 2 was missing and therefore, the second suit was not barred.” It was further held - “even if the plaintiffs had brought a suit for a partial partition of press business, such a suit would have been dismissed on the principle that the suit did not lie in that form. The dismissal of a suit on such a ground does not debar a plaintiff to bring in a fresh suit in proper form prescribed by law.” (8) In M.S. Velappan v. K.S. Goapalakrishnan, (1993)1 L.W. 493 it has been held that the withdrawal of a suit when another suit is pending will not attract the rule of bar to fresh suit under 0.23, Rule 4 or under 0.2, Rule 2, or under Explanation IV to Sec.11, C.P.C. In that case when the suit was filed before this Court, the suit before the City Civil Court was pending. So, there was no ground either under S.11 and under Explanation thereof or under O.2, Rule 2 of the Code of Civil Procedure available to the party. He could not also have any plea under 0.23, Rule 4 of the C.P.C because the suit pending in the City Civil Court was withdrawn only after the suit in this Court was admitted and the defendants appeared. The bar to a fresh suit under 0.23, Rule 4 could not be made retro-active to destroy a suit which had already been admitted and was in the process of hearing. 14. In a recent judgment of a Bench of this Court in Vimalchand v. Ramalingam, (2002)3 M.L.J. 177 , in para 30, it is observed as follows: “O.2, CPC can be made applicable only if the earlier suit was disposed of and thereafter a fresh suit is being filed with the same cause of action for fresh relief. When the present suit has been filed during the pendency of the earlier suit, in our view, the provision of 0.2, Rule 2, CPC is not attracted.” 15. It is not disputed that only after the present suit came to be filed, the earlier suit was withdrawn. Of course, Mr.R.Krishnaswami, learned Senior Counsel, took me through the plaint in the earlier suit and the plaint in the present suit, and attempted to show that the cause of action in respect of both the suits being same, the present suit is clearly hit by O.2, Rule 2, C.P.C. Having regard to the decision of the Bench referred to above, the said contention cannot be accepted. 16. 16. The lower appellate Court has elaborately considered this question in paragraphs 7 and 8 and held that the cause of action for the present suit is a distinct cause of action and was different from the cause of action on which the prayer for injunction was requested in the earlier suit. The cause own action for the earlier suit was the attempt of the defendants to trespass into the suit lands and the cause of action for the present suit is entirely different. The learned Judge further found that the evidence to support the claim in the present suit is entirely different from the evidence that was to be adduced in the former suit to substantiate the plaintiff’s prayer for a bare injunction. Merely because the execution of the sale agreement has been mentioned as the first cause of action in both the suits, it cannot be said that the cause of action is identical. I therefore answer this point against the appellants and hold that the present suit is not hit by the provisions of O.2, Rule 2, CPC nor does it suffer for want of leave of the Court for instituting the second suit. 17. When we move on to the question relating to territorial jurisdiction, it is seen that there is no prayer in the present suit for recovery of possession as according to the plaintiff he is already in possession pursuant to the agreement for sale. The suit is for specific performance simpliciter and there is no question of want of jurisdiction in the Madras Court. The trial Court, which held in favour of the defendants and dismissed the suit, has held that the City Civil Court has jurisdiction. The suit is not a suit for land as has been held in N.Dhanalakshi and others v. S.Ekananthan, (1998)1 M.L.J. 132 distinguishing Ram Bahadur Thakur v. Velliangiri, (1989)1 L.W. 529. I therefore hold that the City Civil Court, Madras has jurisdiction to entertain the suit. 18. The next question relates to whether the agreement has been cancelled as contended by the defendants. It is in evidence that the plaintiff himself has sold portions of the properties, subject matter of the suit, under Exs.B.1 and B.2 in favour of third parties, as power of attorney holder of the owners. 18. The next question relates to whether the agreement has been cancelled as contended by the defendants. It is in evidence that the plaintiff himself has sold portions of the properties, subject matter of the suit, under Exs.B.1 and B.2 in favour of third parties, as power of attorney holder of the owners. This clearly shows that the plaintiff is not even aware as to the ownership of the properties, subject matter of the agreement, in his favour. The learned counsel for the plaintiff was not able to explain this serious lapse on the part of the plaintiff. The contention on behalf of the appellants that the very fact that Exs.B.1 and B.2 were executed by the plaintiff would show that the agreement was cancelled, merits favourable consideration. Unless the agreement set up by the plaintiff had been cancelled or made non est, Exs.B.1 and B.2 would not have come into existence. It is,s in this connection the learned counsel drew my attention to the plaintiff’s own evidence and submitted he did not know anything; the documents relating to the suit property were not with him; after Exs.B.1 and B.2 himself selling portions of the suit property he filed the suit for the entire property. I do not agree with the finding by the lower appellate Court that the execution of the sale deeds under the originals of Exs.B-1 and B-2 in respect of the northern portion of the suit property does not amount to cancellation of the suit agreement. The reasoning is faulty. Having regard to his conduct, the discretionary relief of specific performance cannot be granted to the plaintiff. The learned counsel for the plaintiff contended that in as much as the defendants denied the very agreement it was not open to the defendants to talk of the laches, ulterior motive, etc. It is settled that jurisdiction to decree for specific performance is discretionary and that the Court is not bound to grant such relief merely because it is lawful to do so. In the present case, it is not even lawful to grant relief. 19. It has been held in Vidyanadam v. Vairam, A.I.R. 1997 S.C. 1751 that prescription of certain time limit for taking steps by one or other party under an agreement for sale though may not amount to making the time the essence of the contract, it cannot altogether be ignored by the Court. 19. It has been held in Vidyanadam v. Vairam, A.I.R. 1997 S.C. 1751 that prescription of certain time limit for taking steps by one or other party under an agreement for sale though may not amount to making the time the essence of the contract, it cannot altogether be ignored by the Court. In that case there was total inaction on the part of the agreement holder of 2 1/2 years in violation of the terms of the agreement. In Veeragee Ammal v. Seeni Ammal, (2002)1 M.L.J. (S.C.) 134: (2002)1 S.C.C. 134 : A.I.R. 2001 S.C. 2920, it has been held that the person seeking enforcement of agreement for sale of immovable property must approach Court within reasonable time even if time is not of the essence of contract. In the instant cases, we have already noticed that the time fixed under the agreement is four months and the plaintiff comes to the Court only after 2 1/2 years. 20. It has been held in Shoba Viswanathan v. D.P.Kingsley, (1996)2 M.L.J. 96 by a Division Bench of this Court that in a suit for specific performance, if the Court feels that the suit is filed with an ulterior motive, that conduct also will have to be taken into consideration while exercising the discretion. The conduct of the plaintiff in the instant case is far from being above board. 21. Though on the questions relating to territorial jurisdiction and O.2, Rule 1, C.P.C., the substantial questions of law have to be answered in favour of the plaintiff still on the merits of the case the substantial questions of law have to be answered in favour of the appellants and they are accordingly answered. 22. The lower appellate Court, in para 10 while discussing point No.5, has referred to the execution of the sale deeds, Exs.B.1 and B.2 in respect of a portion of the suit properties agreed to be sold under Ex.A.1, and having regard to the fact that the suit had been filed within the period of limitation, held that it would show that the suit agreement was a real one. This is clearly erroneous reasoning. Equally, the reasoning of the learned Judge in para 11 for rejecting the case of the defendants regarding the cancellation of the suit agreement by his conduct, cannot be sustained. This is clearly erroneous reasoning. Equally, the reasoning of the learned Judge in para 11 for rejecting the case of the defendants regarding the cancellation of the suit agreement by his conduct, cannot be sustained. By his conduct in having executed Exs.B.1 and B.2 in respect of portions of the suit properties as power of attorney holder, the plaintiff had in effect cancelled the suit agreement. 23. In Kulwant Karu v. Gurdial Singh Mamn, A.I.R. 2001 S.C. 1273: (2001)4 S.C.C. 262 , it has been held that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. In the same decision, it has been held that scrutiny of evidence is totally prohibited in second appeal is too rigid a proposition. The lower appellate Court has by-passed relevant materials in a casual manner and reached a perverse conclusion. 24. For all the reasons stated above, the decision reached by the lower appellate Court cannot be sustained. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. The second appeals are allowed. There will be no order as to costs. C.M.P.Nos.2740 of 1990 and 3218 of 1992 are closed.