JUDGMENT 1. - The defendant-appellants have preferred this Regular First Appeal under Section 96 of the Civil Procedure Code challenging the impugned judgment and decree dated 2nd May, 2005 passed by the Additional District Judge No.5, Jaipur City, Jaipur, whereby the learned trial court decreed the Civil Suit No.116/2004 of the plaintiff-respondent No.1 for specific performance of the agreement dated 19th May, 2004 and permanent injunction. 2. Briefly stated the facts of the case giving rise to this appeal are that plaintiff-respondent No.1 N.K. Gupta filed a suit for specific performance of the agreement dated 19th May, 2004 (Exhibit-1), possession and permanent injunction in the Court of District & Sessions Judge, Jaipur City, Jaipur against the defendant-appellants and the defendant-respondent No.2, which was transferred for disposal to the Court of Additional District Judge No.5, Jaipur City, Jaipur. 3. In the plaint, the plaintiff pleaded that the defendants No.1 to 3 agreed to sell their plot of land bearing No. DC-2 situated at Lal Kothi, District Center, Jaipur, measuring total area of 5631.9 square meters, to the plaintiff for a consideration of Rs. 4,10,00,000/- (Rupees four crore ten lac only). The plaintiff paid Rs. 7,00,000/- (Rupees seven lac) through Cheque No.018173 and Rs. 3,00,000/- (Rupees three lac) by cash, to the defendants No.1 to 3. In addition to the above sale consideration, the plaintiff also agreed to give a showroom measuring 1000 square feet super-built-area on the ground- floor after completion of the construction of the complex over the land in dispute, to the defendants No.1 to 3. The agreement was reduced in writing on 19th May, 2004. The said plot was allotted by the defendant No.4 Jaipur Development Authority (for short, 'the JDA') in favour of the defendants No.1 to 3, on 28th October, 2000. The defendants No.1 to 3 were required to get the sale-deed executed in their favour from the JDA and, as per the terms of the agreement, the remaining amount of sale consideration was to be paid at the time of Registry; the entire proceedings of the agreement were to be completed within a period of sixty days. The defendants No.1 to 3 did not get the sale- deed executed and registered in their favour from the defendant No.4 JDA. The defendants No.1 to 3 did not get the sale- deed executed and registered in their favour from the defendant No.4 JDA. The plaintiff was required to pay the remaining amount of sale consideration at the time of Registry before the Sub-Registrar and, he was always ready and willing to perform his part of the agreement. Since the plaintiff was not informed by the defendants No.1 to 3 as to whether they got the sale-deed executed and registered in their favour from the JDA, therefore, the plaintiff served a notice on 5th July, 2004 on the defendants No.1 to 3 through his Advocate wherein the defendants No.1 to 3 were asked to let the plaintiff informed as to whether they got the sale-deed registered in their favour from the defendant No.4 JDA, or not, and when would they get the sale-deed registered in favour of the plaintiff; the plaintiff is always ready and willing to pay remaining amount of sale consideration before the Sub Registrar. The defendants No.1 to 3 sent their reply to the above notice, on 16th July, 2004, stating therein that the plaintiff should pay the registry charges of the lease-deed to be executed and registered by the defendant No.4 JDA in favour of the defendants No.1 to 3, otherwise they would refund the amount of Rupees ten lac paid to them. They further stated that it was also agreed upon in between the parties that the plaintiff would bear the expenses in respect of lease-deed to be executed and registered by the defendant No.4 in favour of defendants No.1 to 3. The plaintiff thereafter sent a rejoinder on 26th July, 2004 to the reply of the defendants No.1 to 3 dated 16th July, 2004 making it clear that it was never agreed in between the parties that the plaintiff would bear the expenses of execution, stamping and registry of the lease-deed to be executed by the defendant No.4 in favour of the defendants No.1 to 3; therefore, the plaintiff asked the defendants No.1 to 3 to get the lease-deed executed and registered immediately in their favour and thereafter to execute and register the sale-deed in favour of the plaintiff; the plaintiff further stated in the rejoinder that he has always been ready and willing to pay the remaining amount of sale consideration and he has sufficient funds for the same. Thereafter, the defendants No.1 to 3 gave a threatening on 28th July, 2004 to the plaintiff that they would sell the disputed plot to some other person; thereupon, the plaintiff got a public notice published in the daily newspaper 'Rajasthan Patrika' on 31st July, 2004 to the effect that the defendants No.1 to 3 have agreed to sell the above disputed property to plaintiff by executing the agreement, therefore, if the same is purchased by any one then it will not be binding on the plaintiff. The plaintiff also gave an application to the Additional Director, JDA, on 10th August, 2004 and prayer was made therein not to transfer the aforesaid plot in the name of any other person. 4. It was further pleaded in the plaint that due to the threatening given by the defendants No.1 to 3 to the plaintiff on 28th July, 2004 and 10th August, 2004 to the effect that, on account of price hike of the disputed land, they would sell it to some other person and, as such, the plaintiff was compelled to file a suit for permanent injunction immediately, which was filed against the defendants No.1 to 3 in the trial Court on 25th August, 2004 with the prayer that by way of permanent injunction, the defendants No.1 to 3 be restrained from transferring the said plot by means of sale-deed, mortgage, gift or in any other manner and they should not handover the possession thereof to anyone. It was also pleaded that the defendants filed their written-statement to the suit for injunction wherein they specifically admitted in Para 11 thereof that they gave threatening to the plaintiff on 28th July, 2004 and 10th August, 2004 that they would sell the disputed property to some other person, which shows dishonesty on the part of the defendants No.1 to 3 and, as such, the plaintiff is entitled to get a decree of specific performance of the agreement dated 19th May, 2004, as well as possession of the disputed plot. The plaintiff also filed an application for temporary injunction bearing No.65/2004 along-with the suit for injunction but the same was dismissed vide order dated 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of suit for specific performance, therefore, the present suit for specific performance is being filed immediately. 5. The plaintiff also filed an application for temporary injunction bearing No.65/2004 along-with the suit for injunction but the same was dismissed vide order dated 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of suit for specific performance, therefore, the present suit for specific performance is being filed immediately. 5. The defendants No.1 to 3 filed their written-statement wherein they admitted execution of the agreement to sell on 19th May, 2004 in respect of the plot in dispute in favour of the plaintiff for a consideration of Rs. 4,10,00,000/-, and they also received Rs. 10,00,000/- from the plaintiff. It was denied that there was any condition in the agreement dated 19.05.2004 that first the defendants No.1 to 3 would get the sale deed executed and registered from the defendant No.4 JDA in their favour. The defendants No.1 to 3 had already paid total sale-consideration i.e. Rs. 3,44,91,000/- with interest, of the plot, in dispute, which was allotted to them and only thereafter the defendant No.4 JDA delivered the possession thereof to them on 30th September, 2003 and, as such, the defendants No.1 to 3 are in actual physical possession of the plot, in dispute. It was specifically pleaded in the written-statement that, as agreed upon between the parties, the plaintiff was required to bear the expenses of both the registries. The time of sixty days was the essence of the agreement. The notice dated 5th July, 2004 sent by the plaintiff was replied by the defendants through their Advocate on 16th July, 2004. The reply to the notice was rightly given by them. The facts relating to publication of public notice in the daily newspaper on 31st July, 2004 and filing of application dated 10th August, 2004 before the Additional Director, JDA, by the plaintiff, were denied. It was specifically admitted in Para 9 thereof that on 28th July, 2004 and 10th August, 2004 the defendants No.1 to 3 told the plaintiff that they would sell the disputed property to some other person as sufficient fund was not available with the plaintiff. It was denied that the defendants refused to sell the plot in dispute to the plaintiff on account of price hike of the disputed plot. It was denied that the defendants refused to sell the plot in dispute to the plaintiff on account of price hike of the disputed plot. The plaintiff filed a suit for permanent injunction along-with an application for temporary injunction; the said application was dismissed by the trial court on 28th October, 2004; the defendants sent a bank draft to the counsel of the plaintiff but the same was received back and thereafter the defendants furnished a copy of duplicate draft in the trial court but the plaintiff refused to accept the same. It was also pleaded that the order dated 28th October, 2004, dismissing the application for temporary injunction of the plaintiff, has become absolute and attained finality, and the present suit is barred by principle of res-judicata under Section 11 of the Civil Procedure Code. In the specific objections took in the written- statement, the defendants pleaded that the present suit is barred by the provisions of Order 2 Rule 2 of the Civil Procedure Code. The earlier suit filed by the plaintiff for injunction is also pending in the trial court itself. The time was the essence of the agreement. The plaintiff has not deposited the remaining amount of sale-consideration as per the Agreement dated 19th May, 2004 in the Court, therefore, the suit is not maintainable and hence it was prayed that the suit of the plaintiff be dismissed. 6. The plaintiff thereafter filed rejoinder denying the contents of the written-statement and reiterated the contents of the plaint.On the basis of the pleadings of the parties, the learned trial court framed five issues on 15th February, 2005, which have been reproduced in the impugned judgment passed by the trial court. 7. The plaintiff, in support of his case, examined himself as PW-1 whereas the defendants, in support of their case, examined the defendant No.3 Jugal Kishore Malhan as DW-1. 8. The plaintiff moved an application in the trial court on 27th April, 2005 for withdrawal of the earlier Suit No.89/2004 for injunction stating therein that he has already filed another Suit for specific performance of the agreement. The defendants raised an objection for costs. The trial court, vide its order dated 27th April, 2005, allowed the application on payment of costs of Rs. 1500/-; the plaintiff offered the amount of costs in the court itself which was accepted by the defendants. 9. The defendants raised an objection for costs. The trial court, vide its order dated 27th April, 2005, allowed the application on payment of costs of Rs. 1500/-; the plaintiff offered the amount of costs in the court itself which was accepted by the defendants. 9. The learned trial court, after hearing the submissions of both the parties and examining the record of the case, decreed the suit of the plaintiff vide judgment and decree dated 2nd May, 2005. Being aggrieved with the same, the present appeal has been preferred by the defendants No.1 to 3. 10. During the pendency of this appeal, the defendant-appellants moved an application under Order 41 Rule 27 Civil Procedure Code for the following documents to be taken on the record - (1) earlier plaint for permanent injunction, (2) written statement thereto, (3) rejoinder to the written-statement, (4) application of the plaintiff dated 27th April, 2005 for withdrawal of the suit, (5) order dated 27th April, 2005 of the trial court allowing the application of the plaintiff for withdrawal of the suit, (6) application under Section 151 Civil Procedure Code dated 15th January, 2005, and (7) order dated 28th October, 2004 dismissing the application for temporary injunction filed by the plaintiff. 11. The aforesaid application under Order 41 Rule 27 Civil Procedure Code was allowed by this Court vide order dated 3rd September, 2007 and the documents annexed therewith were ordered to be taken on the record. 12. Shri N.N. Agarwal, the learned counsel for the appellants, argued that the learned trial court has wrongly interpreted the agreement to sell dated 19th May, 2004 (Exhibit-1) particularly the word "registry" which has been used at three places in the agreement i.e. in Conditions No.2, 4 and 5. It was contended that the word "registry" used in the agreement clearly speaks that the plaintiff was required to bear the costs, expenses and charges towards execution, stamping and registration of both the lease/sale-deeds i.e. the lease/sale-deed to be executed by the JDA in favour of the defendants No.1 to 3, and in respect of the sale-deed to be executed by the defendants No.1 to 3 in favour of the plaintiff. He contended that it is a settled proposition of law that a document must be read in its entirety; all parts of the deed should be read and intention of the parties must be gathered from the document itself. He contended that it is a settled proposition of law that a document must be read in its entirety; all parts of the deed should be read and intention of the parties must be gathered from the document itself. He contended that although there is no specific condition in the agreement requiring the plaintiff to bear the expenses in respect of lease- deed to be executed by the JDA in favour of the defendants No.1 to 3, but if the whole agreement to sell is read in the light of the statements of PW-1 and DW-1, both, then there remains no doubt that the plaintiff had agreed to bear the expenses of both the registries. Since the plaintiff refused to bear the expenses, costs and charges towards execution, stamping and registration of the conveyance/sale-deed to be executed by the JDA in favour of the defendants No.1 to 3, therefore, he made himself not entitled for decree of specific performance of the agreement dated 19th May, 2004. He referred P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and Another, (2007) 10 SCC 231 . 13. Learned counsel for the appellants further argued that the present suit for specific performance was barred under Order 2 Rule 2 Civil Procedure Code. He contended that cause of action for filing the earlier suit for injunction and the present suit for specific performance of the agreement was one and same; since the plaintiff failed to include whole of the claim in his first suit, his second suit for specific performance is liable to be dismissed being barred by the provisions of Order 2 Rule 2 Civil Procedure Code. The requirement of Order 2 Rule 2 Civil Procedure Code is that every suit should include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action. The defendants took a specific plea in respect of bar of the suit under Order 2 Rule 2 Civil Procedure Code and a specific Issue No.4 was framed in this regard but the trial court committed a serious illegality in not correctly appreciating the object behind Order 2 Rule 2 Civil Procedure Code and this Issue was wrongly decided against the defendants, hence the finding of the trial court in respect of Issue No.4 is liable to be reversed and the plaintiff's suit is liable to be dismissed. In support of his contention, he referred - Kamal Kishore Saboo v. Nawabzada Humayun Kamal Hasan Khan, AIR 2001 Delhi 220 , Gajanan R. Salvi v. Satish Shankar Gupta, AIR 2004 Bombay 455 , Radhika Devi v. Bajrangi Singh and Others, (1996) 7 SCC 486 , Dadu Dayalu Mahasabha Jaipur (Trust) v. Mahant Ram Niwas & Another, 2008 (2) WLC (SC) (Civil) 357. 14. The learned counsel for the appellants further argued that Section 16(c) of the Specific Relief Act makes it clear that mere plea about readiness and willingness is not sufficient but it has to be proved. Readiness and willingness of either party to the agreement to perform essential terms thereof, should be inferred from totality of the circumstances or their conduct. Mere filing of suit, without proof as to readiness and willingness, is not sufficient. The readiness and willingness of the plaintiff is not to be seen only by words of mouth but it is required to be seen from actual conduct of the plaintiff. If it comes from the facts pleaded and from the evidence of the plaintiff himself that the plaintiff was not ready and willing to perform his part of agreement then the court has no option but to dismiss the suit of the plaintiff. He referred the relevant paragraphs of the plaint and the statement of the plaintiff in this regard, and contended that the requirement of Section 16(c) of the Specific Relief Act was not fulfilled in the present case and the trial court ought to have dismissed the suit of the plaintiff for specific performance. The trial court committed an illegality in deciding the Issue No.1 in favour of the plaintiff. In support of his submissions, he referred M/s. Ceean International Private Limited v. Ashok Surana and Another, AIR 2003 Calcutta 263 , Pushparani S. Sundaram and Others v. Pauline Manomani James and Others, (2002) 9 SCC 582 , Aniglase Yohannan v. Ramlatha and Others, (2005) 7 SCC 534 , and H.P. Pyarejan v. Dasappa (Dead) by Lrs. And Others, (2006) 2 SCC 496 . 15. And Others, (2006) 2 SCC 496 . 15. The learned counsel for the appellants further argued that the trial court wrongly decided Issue No.2 in favour of the plaintiff whereas looking to all the facts and circumstances of the case the decree of specific performance should not have been granted in view of specific provisions of Section 20 of the Specific Relief Act, and in support of his submissions, he referred - Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Others, AIR 1987 Supreme Court 2328 , K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77 , A.C. Arulappan v. Ahalya Naik (Smt.), (2001) 6 SCC 600 , and M. Meenakshi and Others v. Metadin Agarwal (Dead) by Lrs. & Others, (2006) 7 SCC 470 . 16. The learned counsel for the appellants also argued initially that time is essence of the agreement in the present case and suit was barred by the provisions of Order 23 Rule 1 Civil Procedure Code as no permission was sought for filing the present suit for specific performance of the agreement while withdrawing his earlier suit for injunction, vide order dated 27th April, 2005. However, during the course of arguments, the learned counsel for the appellants did not press both the pleas. 17. The learned counsel for the respondents, Shri R.K. Agarwal, argued that the trial court has considered the pleadings and evidence, oral and documentary, available on record, and has rightly decreed the plaintiff's suit. He contended that from the findings in respect of Issues No.1 and 2 recorded by the trial court, it is clear that not only the pleadings and contentions of the parties but also the oral and documentary evidence have been referred and considered and, by assigning cogent reasons, the said issues have been decided in favour of the plaintiff. The trial court has also decided Issue No.4 rightly in favour of the plaintiff. He further argued that there is no force in the submission of the learned counsel for the appellants about interpretation of the word "registry" used at three places in the Agreement dated 19th May, 2004. The trial court has also decided Issue No.4 rightly in favour of the plaintiff. He further argued that there is no force in the submission of the learned counsel for the appellants about interpretation of the word "registry" used at three places in the Agreement dated 19th May, 2004. so far as interpretation of document Exhibit-1, he admits the legal position that a document must be read in its entirety; the intention of the parties must be gathered from the document itself; all parts of deeds must be read in their entirety in order to ascertain the nature thereof. He submits that there is no ambiguity in the terms and conditions of the agreement dated 19th May, 2004 in the present case; during the course of arguments the learned counsel for the appellants himself agreed that there is no specific condition in the agreement as to who will bear the expenses of 'registry' of conveyance/sale deed to be executed by the JDA in favour of the defendants No.1 to 3; he argued that the submission of the learned counsel for the appellants that the word 'registry' used in the present agreement should be construed in such a manner that it includes both registries - first, the registry in respect of conveyance/sale deed to be executed by the JDA in favour of the defendants No.1 to 3, and second, the registry in respect of conveyance/sale deed to be executed by the defendants No.1 to 3 in favour of the plaintiff, is not tenable and cannot be accepted for the simple reason that there is no specific condition in this regard in the agreement. He contended that both the parties are businessmen of the same stream and they understand each and every term used in the agreement. The plaintiff was required to bear the expenses only in respect of registry relating to conveyance/sale deed to be executed by the defendants No.1 to 3 in favour of the plaintiff, and he was not required to bear the expenses of another registry, hence the same was not included in the agreement. The plaintiff was required to bear the expenses only in respect of registry relating to conveyance/sale deed to be executed by the defendants No.1 to 3 in favour of the plaintiff, and he was not required to bear the expenses of another registry, hence the same was not included in the agreement. He also referred the statements of PW-1 and DW-1, and contended that even from the statements of both these witnesses, it is clear beyond any doubt that there was no specific condition in the Agreement dated 19th May, 2004 requiring the plaintiff to bear the expenses in respect of registry of the conveyance/sale deed to be executed by the JDA in favour of the defendants, therefore, it was a duty of the defendants No.1 to 3 to bear the expenses in this regard. He contended that in absence of any specific condition in this regard in the agreement the same can be determined and decided by referring the provisions of law, particularly Section 32 of the Rajasthan Stamp Act, 1998, and Section 29 of the Indian Stamp Act, 1899, wherein it has been specified as to who shall bear the expenses of providing proper stamp in the case of conveyance, and it lays down therein that in absence of an agreement to the contrary, the expense of providing the proper stamp in the case of a conveyance (including a re-conveyance of mortgaged property) shall be borne by the grantee; in the case of a lease or agreement to lease - by the lessee or intended lessee, as the case may be. He also referred a decision of Division Bench of the Allahabad High Court in Kunwarpal Sharma and Another v. State of U.P. and Others, AIR 2003 Allahabad 7 , For the purpose of proper construction of documents, he also referred - Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 Supreme Court 2609 and B.K. Muniraju v. State of Karnataka and Others, (2008) 4 SCC 451 . 18. 18. So far as readiness and willingness to perform part of the contract on the part of the plaintiff as required under Section 16(c) of the Specific Relief Act, the learned counsel for the plaintiff-respondent contended that as per the principle of law, the said fact can be decided by referring the relevant evidence and in this regard he referred the pleadings as well as oral and documentary evidence and contended that from the same it is clear that the plaintiff was always ready and willing to perform his part of the agreement and it was the defendants who did not perform their part of the agreement. In support of his submissions, he referred Th. Shanker Singh v. Dharmdas, 1995 AIHC 364. 19. So far as grant of decree under Section 20 of the Specific Relief Act is concerned, the learned counsel for the plaintiff-respondent contended that grant of decree is a rule and refusal is an exception as held by the Hon'ble Supreme Court in Mademsetty Satyanarayana v. G. Yelloji Rao and Others, AIR 1965 Supreme Court 1405. 20. The learned counsel for respondent further contended that Order 2 Rule 2 Civil Procedure Code was not a bar to the present suit in the facts and circumstances of the present case, and in support of his submission he referred the relevant Paragraphs of the suit for permanent injunction and the present suit for specific performance of the agreement and also the application filed by the plaintiff for withdrawal of the suit for permanent injunction and the order passed thereon. He contended that the plaintiff filed the suit for specific performance during the pendency of the suit for permanent injunction and the plaintiff specifically mentioned this fact in the application for withdrawal of the suit for injunction and the trial court, while dismissing the plaintiff's application for temporary injunction, also made it clear that the plaintiff has alternative and effective remedy by way of suit for specific performance. He contended that bar of Order 2 Rule 2 Civil Procedure Code is decided on the facts and circumstances of each case. He also argued that plea of bar of suit under Order 2 Rule 2 Civil Procedure Code is only a technical plea as held by the Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 Supreme Court 1810(1) , hence the said plea cannot defeat the substantial justice. He also argued that plea of bar of suit under Order 2 Rule 2 Civil Procedure Code is only a technical plea as held by the Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 Supreme Court 1810(1) , hence the said plea cannot defeat the substantial justice. He further argued that while dismissing the plaintiff's application for temporary injunction by the trial court on 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of filing a suit for specific performance, two options were available to the plaintiff - first, he could have amended the suit itself and another, to file a fresh suit for specific performance of the Agreement as limitation for filing the suit for specific performance had not been expired. The plaintiff opted for filing a fresh suit and the same was filed on the basis of liberty granted by the trial court under its order dated 28th October, 2004, and treating the said date of order as cause of action for the same. He also argued that the 'right of action' and 'cause of action' both are separate. The 'cause of action' and 'subject matter' are also separate. The words 'cause of action' have been used under Order 2 Rule 2 Civil Procedure Code whereas the words 'subject matter' have been used under Order 23 Rule 3(b) Civil Procedure Code. He contended that Order 2 Rule 2 Civil Procedure Code should be read with Order 23 Rule 1 Civil Procedure Code. When the trial court allowed the plaintiff's application to withdraw his suit for permanent injunction on the ground that the suit for specific performance has also been filed then the bar of Order 2 Rule 2 Civil Procedure Code can't/shouldn't come in his way. He also contended that the application filed by the plaintiff for withdrawal of the suit for permanent injunction was not opposed by the opposite party. The only objection which they had, was for costs. This fact clearly shows that the defendants were consenting party to allow the plaintiff to prosecute with his suit for specific performance and, as such, the bar of suit under Order 2 Rule 2 Civil Procedure Code cannot come in his way. He further contended that the trial court, while allowing the application for withdrawal of the suit, imposed costs of Rs. He further contended that the trial court, while allowing the application for withdrawal of the suit, imposed costs of Rs. 1500/-, which was paid by the plaintiff and accepted by the defendants and, as such, now they cannot be allowed to take such a plea. In support of his submission, he referred - Narashalli Kempanna and Others v. Narasappa and Others, AIR 1989 Karnataka 50 , Ravjibhai Mathurbhai Solanki (deceased by LR's) and Others v. Bijalbhai Devjibhai Prajapati and Others, AIR 2004 Gujarat 102 , and Shri Inacio Martins, Deceased through LRs. v. Narayan Hari Naik and Others, AIR 1993 Supreme Court 1756. 21. The learned counsel for the plaintiff-respondent further argued that although the agreement on behalf of the defendant No.1 M/s. Malhan Construction was signed by Shri D.D. Malhan as well as Shri J.K. Malhan, but it was executed in the name of M/s. Malhan Construction through D.D. Malhan and reply to notice was also sent by the defendants on behalf of the defendant No.1 through its partner Shri D.D. Malhan but Shri D.D. Malhan was not examined in the present case on behalf of the defendants, therefore, an adverse inference should be drawn against the defendants. In support of his submission, he referred Vidhyadhar v. Manikrao and Another, (1999) 3 SCC 573 . He also argued that this Court, while exercising powers as first appellate court, can enter into not only questions of law but questions of fact as well, however, at the same time, the appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence on the principle that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. In support of his submissions, he referred Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 . 22. In support of his submissions, he referred Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 . 22. So far as the submission of the learned counsel for the appellants regarding grant of liberty by the trial court to the plaintiff to file fresh suit under Order 23(1) Civil Procedure Code and that the time is essence of agreement, are concerned, the learned counsel for the plaintiff-respondent contended that the learned counsel for the appellants did not press the same during the course of arguments and rightly so in view of the overwhelming evidence available in this regard in the present case and also the proposition of law laid down by the Hon'ble Supreme Court and various High Courts in M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., AIR 1968 Supreme Court 111 , Radha Krishna and Another v. The State of Rajasthan and Others, AIR 1977 Rajasthan 131 , Girdhari Lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh and Others, AIR 1985 Punjab and Haryana 219(1) , P.A. Muhammed v. The Canara Bank and Another, AIR 1992 Kerala 85 , Vimlesh Kumari Kulshrestha v. Sambhajirao and Another, (2008) 5 SCC 58 , Panchanan Dhara and Others v. Monmatha Nath Maity (dead) through LRS and Another, (2006) 5 SCC 340 , and Balasaheb Dayandeo Naik (Dead) through LRS and Others v. Appasaheb Dattatraya Pawar, (2008) 4 SCC 464 . 23. I have considered the submissions of the learned counsel for the parties and examined the impugned judgment as well as the record of the trial court. 24. The undisputed facts in the present case are that on 28th October, 2000 the disputed plot was allotted by the JDA in favour of the defendant No.1; the defendant No.1 paid the entire amount of sale consideration of the allotted plot to the JDA by September, 2003; the defendant No.1 M/s. Malhan construction through its partner D.D. Malhan (first party) entered into an agreement with Shri N.K. Gupta (second party) on 19th May, 2004 to sell the aforesaid plot on certain terms and conditions as enumerated in the agreement, for consideration of Rs. 4,10,00,000/-. 4,10,00,000/-. In addition to the above sale consideration, it was also agreed upon in between the parties that the second party (plaintiff) shall also provide a showroom of 1000 square feet super- built-area on the ground-floor free of costs after completion of construction of the complex, to the first party. It was also agreed upon that in case the showroom is not given then the second party will pay Rs. 30,00,000/-; if the first party does not take the showroom then the amount of Rs. 20,00,000/- will be paid by the second party to the first party. The choice was left open for the first party. The second party paid Rs. 7,00,000/- through Cheque and Rs. 3,00,000/- by cash, thus he paid total Rs. 10,00,000/- towards token money, and the remaining amount was to be paid by the second party to the first party within 45 days at the time of registry. All the formalities were to be completed within 60 days. In case there is delay in payment then the sale consideration shall carry interest at the rate of 10% per annum for 15 days. The expenses of registry will be borne by the second party. Any dues of JDA till date were to be borne by the first party and from today onwards the same shall be borne by the second party. The lease amount was to be paid by the first party. The entire payment to be made within 60 days. There was no specific condition in the agreement as to who will bear the expenses of conveyance/sale-deed to be executed and registered by the JDA in favour of the defendant No.1. The lease-deed was not executed and registered by the JDA in favour of the defendant No.1 till 5th July, 2004 i.e. up-to 47 days from the date of agreement, therefore, a legal notice (Exhibit-2) was served by the plaintiff on the defendants asking them to inform the plaintiff as to whether they have got the lease-deed executed and registered in their favour from the JDA and further that the plaintiff is ready and willing to perform his part of the agreement and the defendants were asked to get the conveyance/sale/deed executed and registered in his favour after payment of remaining amount of sale consideration before the Sub Registrar at the time of registry. The defendant No.1 M/s. Malhan construction through its partner Shri D.D. Malhan sent a reply dated 16th July, 2004, to the above notice through Advocate stating therein that the plaintiff had to pay the balance amount of Four Crore Rupees and the registration charges of the conveyance/lease deed. The amount of registration charges was to be paid directly by means of Demand Draft in favour of the JDA. It was also replied that the plaintiff has to bear the registration charges of both the registries. The plaintiff is not ready and willing to perform his part of contract nor he got the sufficient funds with him. The plaintiff thereafter sent a rejoinder dated 26th July, 2004 (Exhibit-11) to the counsel of the defendants denying the fact mentioned in the reply to the effect that the plaintiff was required to pay registration charges in respect of the conveyance/lease-deed to be executed by the JDA in favour of the defendants. It was averred that there was no such condition in the agreement. The plaintiff is required to bear the expenses of registry charges only in respect of the conveyance/sale-deed to be executed by the defendants No.1 to 3 in favour of the plaintiff. It was further averred that the plaintiff is ready and willing to pay the remaining amount of sale consideration and to bear all the expenses in respect of sale-deed to be executed and registered by the first party in favour of the second party. The first party gave threatening to second party on 28th July, 2004 and 10th August, 2004 that they will sell the disputed plot to some other person. The second party caused a public notice published in the daily �newspaper on 31st July, 2004 to the effect that the plot in dispute has been purchased by him through an agreement and in case any person purchases or agrees to purchase it then the same will be void and ineffective against him. The second party filed a suit for permanent injunction in the trial court on 25th August, 2004 wherein the defendants No.1 to 3 filed their written statement on 25th September, 2004. The execution of the agreement dated 19th May, 2004 was admitted in the written-statement. The rejoinder was filed on 16th October, 2004. The second party filed a suit for permanent injunction in the trial court on 25th August, 2004 wherein the defendants No.1 to 3 filed their written statement on 25th September, 2004. The execution of the agreement dated 19th May, 2004 was admitted in the written-statement. The rejoinder was filed on 16th October, 2004. An application for temporary injunction was also filed and the same was dismissed by the trial court on 28th October, 2004 observing therein that the plaintiff has an alternative and effective remedy by way of filing a suit for specific performance of the agreement. On the next date i.e. 29th October, 2004 the plaintiff filed another suit i.e. the present Suit No.116/2004 for specific performance of the Agreement dated 19th May, 2004, possession and permanent injunction. The defendants No.1 to 3 filed their written statement dated 13th January, 2005. The plaintiff filed an application in the trial court on 15th January, 2005 for consolidation of both the suits i.e. the Suit No.80/2004 filed on 25th August, 2004 for injunction and another Suit No.116/2004 for specific performance of the agreement, possession and permanent injunction. The plaintiff also filed rejoinder on 29th January, 2005. The Issues were framed on 25th February, 2005. On behalf of the plaintiff, statement of Shri N.K. Gupta PW-1 was recorded and on behalf of the defendant the statement of Jugal Kishore Malhan DW-1 was recorded. The plaintiff moved an application in the trial court on 27th April, 2005 under Order 23 Rule 3 Civil Procedure Code in Suit No.89/2004 i.e. suit for injunction, seeking permission of the Court for its withdrawal. It was mentioned in the application that the plaintiff has already filed Suit No.116/2004 for specific performance of the Agreement. The same Court has already recorded a finding in the order dated 28th October, 2004 that the plaintiff has an alternative remedy of filing a suit for specific performance, therefore, he wants to withdraw the suit. The copy of the application was supplied to the learned counsel for the defendants. The trial court heard the arguments on the above application. The learned counsel for the defendants raised an objection for costs. The learned trial court, vide its order dated 27th April, 2005 granted permission to the respondent to withdraw the suit on payment of costs of Rs. 1500/- and dismissed the plaintiff's suit for injunction, as withdrawn. The trial court heard the arguments on the above application. The learned counsel for the defendants raised an objection for costs. The learned trial court, vide its order dated 27th April, 2005 granted permission to the respondent to withdraw the suit on payment of costs of Rs. 1500/- and dismissed the plaintiff's suit for injunction, as withdrawn. On 27th April, 2005 the plaintiff paid the amount of costs to the defendants, which is clear from the order-sheet of the trial court dated 27th April, 2005. No other objection was raised to the aforesaid application by the learned counsel for the defendants except the objection for costs, which was imposed by the trial court and the same was paid by the plaintiff and accepted by the defendants. 25. The learned trial court framed five Issues in the present case. Issue No.1 is as to whether the plaintiff was ready and willing to perform his part of the Agreement dated 19th May, 2004; Issue No.2 is as to whether the plaintiff is entitled to a decree of specific performance of the Agreement dated 19th May, 2004; Issue No.3 is as to whether the said Agreement dated 19th May, 2004 is admissible in evidence for want of proper stamps; Issue No.4 is as to whether the plaintiff's suit is barred and not maintainable in view of Order 2 Rule 2 Civil Procedure Code; Issue No.5 relates to relief clause to be granted in the case. 26. So far as Issue No.3 regarding admissibility of the document is concerned, an order was passed by the trial court during the pendency of the suit for payment of ten times penalty as per Section 35 of the Indian Stamp Act, which was deposited by the plaintiff, therefore, a finding was recorded that the Agreement dated 19th May, 2004 is admissible in evidence and thus the Issue No.3 was decided in favour of the plaintiff and against the defendants. The learned counsel for the appellants has also not challenged the finding on Issue No.3. The learned counsel for the appellants has also not challenged the finding on Issue No.3. The Issue No.4, with regard to maintainability of the suit as bar under Order 2 Rule 2 Civil Procedure Code, has also been decided by the trial court against the defendants and in favour of the plaintiff holding therein that the first suit was based on threatening of the defendants whereas the present suit for specific performance has been filed on the basis of resiling of the defendants from the terms and conditions of the Agreement dated 19th May, 2004. The trial court observed that the cause of action in both the suits were separate and different and further that the first suit has already been permitted to be withdrawn and is no more pending in the Court, therefore, the provisions of Order 2 Rule 2 Civil Procedure Code are not applicable. The Issues No.1 and 2 both have also been decided in favour of the plaintiff and against the defendants by the trial court. The trial court has recorded a finding that the plaintiff was ready and willing to perform his part of the Agreement and is entitled to a decree of specific performance of the Agreement dated 19th May, 2004 and consequently the decree was passed in favour of the plaintiff. 27. The learned counsel for both the parties have argued the matter at length in respect of findings of the trial court in respect of Issues No.1, 2 and 4. This court is thus required to adjudicate as to whether the finding of the trial court in respect of Issues No.1, 2 and 4 is correct, or not. 28. First of all I would like to examine the finding of the trial Court in respect of Issue No.4. Order 2 Rule 2 of the Civil Procedure Code lays down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. The Sub Rule (2) lays down that where a plaintiffs omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The Sub Rule (2) lays down that where a plaintiffs omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub-Rule (3) lays down that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. For ready reference the Order 2 Rule 2 with its sub rules and illustration reads as follows : "2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs: but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Illustration A lets a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907." 29. Illustration A lets a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907." 29. The plaintiff in Para 14 of the plaint pleaded that in earlier suit for injunction the plaintiff filed an application for temporary injunction, which has been rejected by the Court of Additional District & Sessions Judge No.5, Jaipur City, Jaipur, vide order dated 28th October, 2004 on the ground that the plaintiff has an alternative and effective remedy by way of filing a suit for specific performance of the agreement, therefore, this suit for specific performance has been filed without any delay. It is relevant to mention here that application for temporary injunction was dismissed on 28th October, 2004 and the present suit for specific performance was filed on 29th October, 2004 on the next date itself. The plaintiff in Para 15 of the plaint further pleaded that the cause of action for filing a suit for specific performance arose on 19th May, 2004 when the agreement to sell was executed and on 5th July, 2004 when the plaintiff served a notice through his Advocate on the defendants No.1 to 3 and on 16th July, 2004 when the defendants No.1 to 3 sent their reply to the notice and on 10th August, 2004 when the defendants No.1 to 3 gave a threatening; and, for the purpose of permanent injunction, on 28th July, 2004 and 10th August, 2004 when the defendants gave a threatening to the plaintiff to sell/transfer the disputed property to some other persons. 30. It is relevant to mention that a copy of earlier suit for injunction No.89/2004 was not placed on the record by the defendants enabling them to take a plea of bar under Order 2 Rule 2 Civil Procedure Code. However, the defendant- appellants moved an application before this Court under Order 41 Rule 27 Civil Procedure Code along-with a certified copy of the Suit No.89/2004 and this court allowed the application on 3rd September, 2007. 31. However, the defendant- appellants moved an application before this Court under Order 41 Rule 27 Civil Procedure Code along-with a certified copy of the Suit No.89/2004 and this court allowed the application on 3rd September, 2007. 31. The plaintiff in Para 12 of the suit for injunction i.e. Suit No.89/2004, pleaded that the cause of action for filing the suit for injunction accrued on 28th July, 2004 and lastly on 10th August, 2004 when the defendants gave threatening in respect of the disputed plot. The first suit for injunction (No.89/2004) was filed on 25th August, 2004 along-with an application for temporary injunction. The application for temporary injunction was dismissed on 28th October, 2004. During the pendency of the first Suit No.89/2004, the plaintiff filed the present suit for specific performance (Suit No.116/2004) on 29th October, 2004. The order dated 28th October, 2004 has been placed on the record along-with the application under Order 41 Rule 27 Civil Procedure Code wherein the trial court, in Para 8 thereof, observed that an agreement has been executed in between the plaintiff and the defendants No.1 to 3, and the plaintiff has paid 10 lac rupees to the defendants No.1 to 3 as token money against the sale consideration and in this situation the plaintiff has an alternative and effective remedy by way of filing a suit for specific performance whereas the present suit has been filed for injunction only, hence no interim injunction can be granted in favour of the plaintiff and thus rejected the application under Order 39 Rules 1 and 2 of the Civil Procedure Code. Both the suits were pending in the same Court. The plaintiff moved an application dated 27th April, 2005 in first suit No.89/2004 under Order 23 Rule 3 Civil Procedure Code for seeking permission to withdraw the suit. It was averred in the application that the plaintiff has already filed a suit No.116/2004 for specific performance of the agreement; the learned Court has also observed in the order dated 28th October, 2004 that the plaintiff has an alternative and effective remedy by way of bringing the suit for specific performance, therefore, the plaintiff wants to withdraw the suit. The defendants did not oppose the application on merits and raised an objection only for costs. The defendants did not oppose the application on merits and raised an objection only for costs. The trial court allowed the application vide order dated 27th April, 2005 and granted permission to the plaintiff to withdraw the suit on payment of costs of Rs. 1500/- and consequently dismissed the suit as withdrawn. The operative portion of the order dated 27th April, 2005 reads as under:- "UBHYA PAKSHO KO SUNNE KE PASCHYAT VAADI KO RUPYA 1500/- PAR DAAWA VAPAS LENE KI ANUMATI DI JAATI HAIN. VAADI KA VAAD JARIYE WITHDRAWAL KHARIJ KIYA JATA HAIN." 32. The aforesaid facts clearly show that both the parties were in knowledge of the cause of action arose in the suit for injunction and cause of action arose in the suit for specific performance of the Agreement dated 19th May, 2004. The defendants took a plea of bar under Order 2 Rule 2 Civil Procedure Code in the Suit No.116/2004, however, they did not contest the application dated 27th April, 2005 filed in the Suit No.89/2004 under Order 23 Rule 3 Civil Procedure Code seeking permission to withdraw the suit on the ground that the Suit No.116/2004 for specific performance of the Agreement has already been filed in the Court and the learned court has already recorded a finding in the order dated 28th October, 2004 that the plaintiff has an alternative to bring a suit for specific performance. The defendants raised only one objection to the above application in respect of costs and their objection for costs was upheld by the Court and permission was granted for withdrawal of the suit on payment of costs of Rs. 1500/-. The amount of costs was paid by the plaintiff to the defendant which was accepted by them and in these circumstances it is clear that the plaintiff was allowed by the court to continue with the Suit No.116/2004. The order dated 27th April, 2005 was not challenged by the defendants in the revisional or appellate court and the same has attained finality. The Order 2 Rule 2 Civil Procedure Code is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. The order dated 27th April, 2005 was not challenged by the defendants in the revisional or appellate court and the same has attained finality. The Order 2 Rule 2 Civil Procedure Code is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court. But the Rule does not preclude a second suit based on a distinct cause of action. It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. No doubt that property in both the suits is one and the same but cause of action in both the suits in respect of same property is separate and distinguishable. There is a difference in between the 'cause of action' and 'subject matter'. 'Right of action' and 'cause of action' are also separate. In Narashalli Kempanna and Ors. v. Narasappa and Ors. (Supra), the Karnataka High Court considered the bar of suit under Order 2 Rule 2 Civil Procedure Code in the context of facts of that case wherein the previous suit for possession was dismissed on the ground of existence of proper remedy of filing suit for partition and possession. Subsequent suit for partition and separate possession was filed and an objection was raised about bar of Order 2 Rule 2 Civil Procedure Code, it was held that dismissal of previous suit had given rise to fresh cause of action and also amounted to granting leave for filing another suit for relief as to partition and possession. It was also held that the plea of bar of suit based on Order 2 Rule 2 Civil Procedure Code is highly technical plea. It was also held that the plea of bar of suit based on Order 2 Rule 2 Civil Procedure Code is highly technical plea. Para 14 of the judgment is reproduced as under:- "14. It was thereafter the present suit for partition was filed, From the finding recorded in R.A. No. 269/1956 and the cause of action disclosed in the plaint filed in O.S. No. 299/5S, it is clear that the present suit is not barred by reason of the bar contained under Order 2, Rule 2, C.P.C. It is very pertinent to notice that in R. A. No. 20/56, it was held that the plaintiff i was to seek possession of the suit properties in an appropriate suit for partition. On that ground, the suit for possession was dismissed The lower appellate Court has held in para 30 of its judgment that this cannot be construed as giving rise to a separate and fresh cause of action. It is not right in holding so. It has also to be remembered that the plea of bar of suit based on Order 2 Rule 2 is a highly technical plea. It tends to defeat justice and deprive the party of his or her legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. If in a case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to partition and possession of the suit properties must be held to have been kept open and leave of the Court for such relief must be held to have been granted as otherwise in such a case in the very suit itself a decree for partition and separate possession could be passed. Instead of that, if the Court dismisses the suit stating that the relief has to be sought in a suit for partition, such a decree amounts to permitting the plaintiff to file a separate suit for partition and possession. In such a situation the bar contained in Order 2, Rule 2, C.P.C. is not attracted because the dismissal of the suit on that ground not only gives rise to a fresh cause of action but also, as already pointed out, amounts to granting leave for filing another suit for such relief. In such a situation the bar contained in Order 2, Rule 2, C.P.C. is not attracted because the dismissal of the suit on that ground not only gives rise to a fresh cause of action but also, as already pointed out, amounts to granting leave for filing another suit for such relief. That being so the cause of action for both the suits cannot be held to be identical." 33. In Gurbux Singh v. Bhooralal, AIR 1964 Supreme Court 1810(1) , a Constitutional Bench of the Hon'ble Apex Court considered the plea of bar under Order 2 Rule 2(3) Civil Procedure Code and held as under:- "6. In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raised the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for, unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which. is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule, As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that plea. of a bar under, Order 2 Rule 2, C.P.C. can be established only if the defendant files in evidence, the pleadings of the previous suit and thereby proves to the i Court the identity of the cause of action in the two suits. It is for this reason that we consider that plea. of a bar under, Order 2 Rule 2, C.P.C. can be established only if the defendant files in evidence, the pleadings of the previous suit and thereby proves to the i Court the identity of the cause of action in the two suits. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar under Order 2. r. 2, Civil Procedure Code was not maintainable. Learned counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read: "The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court." It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge "the two courts have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under Order 2. r. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under Order 41. r. 27, Civil Procedure Code by consent of parties. r. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under Order 41. r. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under Order 41. r. 27, Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit." 7. Learned counsel for the appellant, however, urged that in his plaint in the present suit the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profits. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word 'mesne profits' is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression 'mesne profits' is an accurate translation of the expression in the original plaint. This apart, we consider that learned counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that relies were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterization of the particular sum demanded but what in substance in the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. If is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. We therefore consider that the order of remand passed by the learned Additional Distract Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order of remand which we are affirming. " 34. The Division Bench of the Gujarat High Court in Ravjibhai Mathurbhai Solanki (deceased by LR's) and Others v. Bijalbhai Devjibhai Prajapati and Others, (AIR 2004 Gujarat 102) , considered the plea of bar under Order 2 Rule 2 Civil Procedure Code in the context of facts of that case wherein suit for permanent injunction against the defendants from selling suit land to third parties was filed. An application for withdrawal of the suit was filed which was allowed and an order was passed permitting withdrawal of the suit on the ground that the plaintiff's suit might fail on ground that they had remedy of suit for specific performance of contract and that they had not resorted to same with condition to file fresh suit on same cause of action. The fresh suit for specific performance of agreement was filed and it was held that it does not hit by Order 2 Rule 2 Civil Procedure Code. Para 14.1 of the judgment reads as under:- "14.1. If we peruse application at Exh. 23 submitted by plaintiffs under Order 23 Rule 1 of Civil Procedure Code in Regular Civil Suit No. 314 of 1981, which is also brought on record of this case at Exh. 245, it is dated 22nd January, 1982, it is stated by the plaintiffs that defendants have executed a document regarding agreement for sale of the suit land for Rs. 4,10,000/- on 24th March, 1980 and plaintiffs have paid to defendants Rs. 72,200/- as part payment of the agreed consideration. However, because of the rise in the prices of land in Anand town, the plaintiffs were making efforts to sell lands to third parties by charging higher consideration and, therefore, the present suit i.e. R.C.S. No. 314 of 1981 was required to be filed for restraining them from transferring the suit land. It is stated in para. 2 of the said application that the defendants have raised dispute in written statement that the suit was not maintainable in the Court of the Civil Judge [Junior Division] at Anand as the land was valued at more than Rs. 20,000/- and that the suit was premature. In para. 3 it has been stated that in view of the disputes raised in law by defendants and also on facts it was quite likely that on account of technical defects their suit may fail and further that looking to the conduct of the defendants and the replies filed by the defendants, it was clear that sooner or later plaintiffs would be required to file suit for specific performance. Hence, the permission to file fresh suit for the said suit property be granted to them and this suit be allowed to be withdrawn. Hence, the permission to file fresh suit for the said suit property be granted to them and this suit be allowed to be withdrawn. It also bears endorsement of learned advocate for the defendants which is reproduced as under:- "I strongly object. Full cost should be awarded to us. Sd/- R.J. Bhalja, Advocate for defendants 22.01.82." The Court has on the same day passed the following order:- "Read. Heard. It seems that plaintiffs' suit may fail on the ground that he has remedy of suit for specific performance of the contract. He has not resorted it. In the circumstances, I allow the plaintiffs to withdraw the suit with a condition to file a fresh suit on the same cause of action. No order as to costs. Sd/- P.D. Gujarathi, 22.1.82 Civil Judge (J.D.) Anand."This application as well as the order passed below it, if closely perused, clearly show that the plaintiffs had expressed their apprehension regarding failure of the suit on account of the defences raised by the defendants in their written statement in respect of the jurisdiction of that Court to entertain the suit as well as the suit being filed at a premature stage. The application also shows that the plaintiffs had all the reason/s to believe that sooner or later, they would be required to file suit for specific performance of the contract in view of the conduct and the replies of the defendants. The permission is, therefore, sought for filing fresh suit and withdrawal of the said suit in respect of the same suit property. Thus, it is clear that what plaintiffs had asked for was withdrawal of R.C.S. No. 314 of 1981 with a view to file suit for specific performance of the contract in relation to the same property. The order of the learned Judge shows that what appeared to the learned Judge was that the plaintiffs' suit might fail on the ground that they had remedy of suit for specific performance of the contract and that they had not resorted to the same and in those circumstances the plaintiffs were allowed to withdraw the previous suit with a condition to file fresh suit on the same cause of action. The cost was not awarded despite demanded by the learned advocate for defendants. The cost was not awarded despite demanded by the learned advocate for defendants. It is, therefore, very clear that the plaintiffs had withdrawn the earlier suit with a permission to file fresh suit for the specific performance of the contract and the said permission was duly granted by the trial Court. In view thereof, we do not see how the provisions of Order 2 Rule 2 will come into operation as the provisions clearly provide for withdrawal of the earlier suit and filing of the fresh suit with the permission of the concerned Court. When such permission has been granted in this case, there is no question of operation of Order 2 Rule 2 of C.P.C." 35. In Shri Inacio Martins, Deceased through LRs. v. Narayan Hari Naik and Others, AIR 1993 Supreme Court 1756 , the Hon'ble Apex Court considered the applicability of the provisions of Order 2 Rule 2 (3) and Section 11 Civil Procedure Code where earlier suit for injunction was dismissed on technical ground; subsequent suit for declaration of title and recovery of possession was filed and plea was raised about bar of suit under Order 2 Rule 2(3) Civil Procedure Code and it was held that subsequent suit is not barred. The relevant portion of Para 4 and 5 of the judgment read as under:- "4. .....The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom. With a view to preventing any such action on the part of the defendants he instituted the suit for an injunction to restrain them from so doing. ............. The High Court, in the backdrop of these facts, came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties and hence regardless of the relief claimed the second suit was clearly barred by res judicata. This finding of the High Court is difficult to sustain. This finding of the High Court is difficult to sustain. Section 11 of the Civil Procedure Code provides that 'no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, ........... As the record stands the only ground on which the previous suit was dismissed was the technical ground that a suit for a mere declaration cannot lie without claiming possession once it is found that the plaintiff had lost possession. Injunction could not be granted to the plaintiff against dispossession as he had already been dispossessed. 5. The next contention which found favour with the High Court was based on the language of Order 2 Rule 2(3) of the Civil Procedure Code. The submission regarding constructive res judicata was also based on this very provision. Now Order 2 concerns the framing of a suit. Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit. Sub-rule (1) of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit. However, Sub-rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. It is well known that Order 2 Rule 2 Civil Procedure Code is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. It is well known that Order 2 Rule 2 Civil Procedure Code is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court. But the Rule does not preclude a second suit based on a distinct cause of action. It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material. Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical-ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court's assistance to protect his possession by a prohibitory injunction. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court's assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court's assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Civil Procedure Code. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent suit was not identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was not claimed whereas in the second suit the relief �was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code." 36. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code." 36. The learned counsel for the appellant, in support of his submission in respect of bar under Order 2 Rule 2 Civil Procedure Code, referred Radhika Devi v. Bajrangi Singh and Others, (1996) 7 SCC 486 , and contended that in similar circumstances an application for amendment of the pleading under Order 6 Rule 17 Civil Procedure Code was filed, which was not allowed on the ground that by lapse of time a right has been accrued in the opposite party which cannot be taken away. The submission of the learned counsel for the appellant is that if an application would have been filed in the present case for amendment in the earlier suit seeking permission to include another prayer for specific performance of the agreement then the same would not have been allowed and as such his accrued right has been taken away in the present matter. The facts of Radhika Devi's case (Supra) were altogether different and are not applicable in the present case. In that case the suit for partition was filed by the appellant in the year 1988. The written-statement was filed by the respondent specifically stating about the gift made in their favour but no steps were taken by the appellant to file application for amendment for three years thereafter. Ultimately the application under Order 6 Rule 17 Civil Procedure Code was filed by the appellant in November, 1992 seeking declaration that gift-deed was obtained by the respondent illegally and fraudulently, and therefore it was ineffective and not binding on the appellant. By that time, the suit for declaration filed beyond three years from the date of knowledge had become time-barred and it was held that the appellant was not entitled to amend the suit. So far as the present case is concerned, the agreement to sell was executed on 19th May, 2004; the legal notice was given on 5th July, 2004; the reply to the notice was given on 16th July, 2004; the first Suit No.89/2004 was filed on 25th August, 2004; the application for temporary injunction was dismissed on 28th October, 2004; the present Suit No.116/2004 for specific performance was filed on 29th October, 2004. As per Article 54 of the Limitation Act, the period of limitation for filing a suit for specific performance is three years; whereas, from the above facts it is clear that the suit was filed well within the time rather immediately when the application for temporary injunction was dismissed on 28th October, 2004 observing therein that the plaintiff has an alternative remedy by way of suit for specific performance and, as such, the above referred judgment cited by the learned counsel for the appellants is not at all applicable in the facts and circumstances of the present case. 37. The learned counsel for the appellants, also referred a Division Bench judgment of the Delhi High Court in Kamal Kishore Saboo v. Nawabzada Humayun Kamal Hasan Khan, AIR 2001 Delhi 220. The facts of the case before the Delhi High Court were that an agreement to sell dated 5th January, 1991 was executed in respect of property in dispute; a suit for permanent injunction was filed in the Court of Senior Civil Judge, Delhi in the year 1998 on the basis of cause of action arose on 6th November, 1998 and during the pendency of that suit another Suit No.93/1999 was filed for specific performance of the contract with a prayer to grant decree of specific performance of the agreement to sell dated 5th January, 1991. The second suit was dismissed on the ground that it is barred by provisions of Order 2 Rule 2 Civil Procedure Code. It was held that cause of action for filing a suit for specific performance had arisen when the first Suit No.863/1998 was filed. The Division Bench of the Delhi High Court affirmed the order passed by the trial court. So far as the facts of the present case are concerned, the same are altogether different and distinguishable from the facts of the case before the Delhi High Court. In the present case, an application for withdrawal of the first suit was filed which was not opposed on merits by the defendants and their objection was only for costs. The permission was granted to the plaintiff to withdraw the first suit on payment of costs, the amount of costs was paid by the plaintiff and accepted by the defendants. In the present case, an application for withdrawal of the first suit was filed which was not opposed on merits by the defendants and their objection was only for costs. The permission was granted to the plaintiff to withdraw the first suit on payment of costs, the amount of costs was paid by the plaintiff and accepted by the defendants. The cause of action in the first suit and another suit is also separate, as discussed above, hence the judgment of the Delhi High Court is not applicable in the facts and circumstances of the present case. 38. The learned counsel for the appellants has also relied upon Gajanan R. Salvi v. Satish Shankar Gupta, AIR 2004 Bombay 455 and Dadu Dayalu Mahasabha Jaipur (Trust) v. Mahant Ram Niwas & Another, 2008 (2) WLC (SC) (Civil) 357 , but, after considering the facts of the present case in the light of above referred judgments, it is clear that the same are distinguishable and are not applicable in the present case. 39. The Karnataka High Court in Para 12 of the judgment in Narashalli Kempanna and Others v. Narasappa and Others, AIR 1989 Karnataka 50 , has also observed that the cause of action referred to in Order 2 Rule 2 Civil Procedure Code is the one pleaded by the plaintiff in the previous suit and not one which the court can infer on reading the other evidence on the record than the plaint in the previous. The principle embodied in Order 2 Rule 2 Civil Procedure Code is that every suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The very basis for attracting the bar contained in Order 2 R.2 Civil Procedure Code is the identity of the cause of action. I have already referred the relevant Paras of both the suits relating to cause of action as pleaded in the plaint by the plaintiff. 40. Apart from the above, it is also relevant to mention that a Constitutional Bench of the Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 Supreme Court 1810(1) , has observed that plea under Order 2 Rule 2 Civil Procedure Code is a technical bar. 40. Apart from the above, it is also relevant to mention that a Constitutional Bench of the Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 Supreme Court 1810(1) , has observed that plea under Order 2 Rule 2 Civil Procedure Code is a technical bar. The Karnataka High Court in Narashalli Kempanna and Others v. Narasappa and Others, AIR 1989 Karnataka 50 has also relied upon the aforesaid judgment of the Hon'ble Apex Court and has held that plea of bar under Order 2 Rule 2 Civil Procedure Code is a technical plea. 41. The words 'cause of action' have been considered by the Hon'ble Apex Court in detail in Om Prakash Srivastava v. Union of India and Another, (2006) 6 SCC 207 . The relevant Paras 9 to 17 are reproduced as Under:- 9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors). (1994) 6 SCC 322 . 10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar (1998) 6 SCC 514 : 1998 SCC (Cr) 1471. 11. It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and Ors. (1996) 3 SCC 443 . 12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. (See South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and Ors. (1996) 3 SCC 443 . 12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors., 2001(2) SCC 294 ). 13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh, (1977) 1 SCC 791 . 14. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors., (2000) 7 SCC 640 : 2001 SCC (Cri) 215. 15. In Halsbury Laws of England (Fourth Edition) it has been stated as follows : "Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a Page 3246 remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action." 16. As observed by the Privy Council in Payana v. Pana Lana, (1914) 41 IA 142 , the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arises from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohammad Khalil Khan v. Mahbub Ali Mian) (1947-48) 75 IA 121 : AIR 1949 PC 78 . 17. It would be appropriate to quote para 61 of the said judgment, which reads as follows : 61. (1) The correct test in cases falling under Order 11 Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit (Moonshee Buzloor Fuehrer v. Shumroonnissa Begum, (1867) 11 MIA 551 (P.C.). (2) The 'cause of action' means every fact which will be necessary for the plaintiff to prove it traversed to order to support his right to the judgment (Read v. Brown (1888) 22 QBD 128). (2) The 'cause of action' means every fact which will be necessary for the plaintiff to prove it traversed to order to support his right to the judgment (Read v. Brown (1888) 22 QBD 128). (3) If the evidence to support the two claims is different. (Brunsden v. Humphrey (1884) 14 QBD 141). (4) The causes of action in the two suits may be considered to be away if in substance they are identical (Brunsden v. Humphrey (1884) 14 QBD 141). (5) The cause of action has no relation whether to the defence that may be act up by the defendant nor does it depend upon the character of the relief prayed for the plaintiff. It refers... to media upon which the plaintiff sake the Court to arrive at a conclusion in his favour. (Mst. Chand Kour v. Pratap Singh (1887-88) 15 IA 156. This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2) where plaintiff made various claim in the same suit." 42. DW-1 Jugal Kishore Malhan, in his cross-examination, specifically admitted that it is correct that they threatened the plaintiff on 28th July, 2004 and 10th August, 2004 that they would sell the plot to some other person. The Suit No.89/2004 was filed on the basis of this threatening of the defendants dated 28th August, 2004 and 10th August. 2004. The application for temporary injunction in the Suit No.89/2004 for injunction, was dismissed on 28th October, 2004. In Para 14 of the suit No.116/2004 for specific performance, it was specifically mentioned that the application for temporary injunction No.65/2004 in the suit for injunction, has been dismissed with an observation that the plaintiff has an alternative and effective remedy to file a suit for specific performance, therefore, the present suit for specific performance is being filed immediately. In Para 15 of the plaint it was further averred that the cause of action for filing the suit for specific performance arose on 19th May, 2004 when the agreement was executed and on 5th July, 2004 when notice was sent by the plaintiff to the defendants and further on 16th July, 2004 when the defendants No.1 to 3 gave reply to the notice. During the pendency of both the suits, the application for withdrawal of Suit No.89/2004 was filed on the ground that the Suit No.116/2004 for specific performance has already been filed and the said application was not opposed on merits by the defendants except the objection of costs. The trial court granted permission to the plaintiff to withdraw the Suit No.89/2004 on payment of costs of Rs. 1500/-, and the amount of costs was paid by the plaintiff and accepted by the defendants. It amounts to granting permission by the Court to the plaintiff to continue with the suit for specific performance of the agreement also. In such a situation, it is very difficult to hold that bar of Order 2 Rule 2 Civil Procedure Code is applicable in the facts and circumstances of the present case. 43. In view of the above discussion of pleadings, evidence and case law, I am of the view that the learned trial court was fully justified in deciding the Issue No.4 in favour of the plaintiff and against the defendants by holding that bar of Order 2 Rule 2 Civil Procedure Code is not applicable in the facts and circumstances of the present case. 44. Now I will examine the finding of trial court on the Issues No.1 and 2; the Issue No.1 is as to whether the plaintiff has always been ready and willing to perform his part of the agreement dated 19.05.2004 and Issue No.2 is as to whether the plaintiff is entitled for specific performance of the agreement dated 19.05.2004. 45. Section 16(c) of the Specific Relief Act, 1963, lays down that a specific performance of the contract cannot be enforced in favour of a person who fails to establish and prove that he has performed or has always been ready and willing to perform the essential terms of the agreement which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendants. An explanation has been added to Clause (c) which lays down that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; and the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 46. Sub-section (1) of Section 20 of the Specific Relief Act lays down that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. 47. In Aniglase Yohannan v. Ramlatha and Others, (2005) 7 SCC 534 , the Hon'ble Apex Court held that the basic principle behind Section 16(c) read with Explanation (ii) of the Specific Relief Act, 1963, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been unblemished throughout entitling him to the specific relief. Para 12 and 13 of the judgment are reproduced as under:- "12. The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey, 1995 Supp (4) SCC 542 : AIR 1994 Supreme Court 542 that the plaintiff had substantiated his plea." 48. In H.P. Pyarejan v. Dasappa (Dead) by LRS. And Others, (2006) 2 SCC 496 , the Hon'ble Apex Court held that the basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been unblemished throughout entitling him to the specific relief. Para 13 and 14 of the judgment are reproduced as under:- "13. Para 13 and 14 of the judgment are reproduced as under:- "13. The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 14. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The principles were recently elaborated in Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534 . 49. In Pushparani S. Sundaram and Others v. Pauline Manomani James and Others, (2002) 9 SCC 582 , the Hon'ble Apex Court held that mere filing suit for specific performance and taking the plea that he was ready and willing by themselves are not sufficient to satisfy the requirements of Section 16(c). The plaintiff must aver and prove that either he has actually performed or that he was always ready and willing to perform his essential obligations under the contract. Para 5 of the judgment is reproduced as under:- "5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authorities on the 31st March, 1982, the present suit was filed in April, 1982 and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to Para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are being a plea that they were ready and willing to perform their part of the contract is there in the pleading. We have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. We have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining first of the two circumstances, how could mere filing of this suit, after exemption was granted could be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." 50. The learned counsel for the appellants, in support of his contention with regard to Section 16(c) of the Specific Relief Act, also referred M/s. Ceean International Private Limited v. Ashok Surana and Another, AIR 2003 Calcutta 263 , but, after considering the facts of that case with the facts of the present case, it is clear that the said case is distinguishable on facts and law both of the present case. 51. In P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and Another, (2007) 10 SCC 231 , the Hon'ble Apex Court held that a document must be read in its entirety. All parts of the deeds should be read. Intention of the party must be gathered from the document itself. Para 13 of the judgment is reproduced as under:- "13. A document, as is well known, must be read in its entirety. The intention of the parties, it is equally well settled, must be gathered from the document itself. All parts of the deed must be read in their entirety so as to ascertain the nature thereof." 52. In M. Meenakshi and Others v. Metadin Agarwal (Dead) by LRS. A document, as is well known, must be read in its entirety. The intention of the parties, it is equally well settled, must be gathered from the document itself. All parts of the deed must be read in their entirety so as to ascertain the nature thereof." 52. In M. Meenakshi and Others v. Metadin Agarwal (Dead) by LRS. & Others, (2006) 7 SCC 470 , the Hon'ble Apex Court observed in the facts and circumstances of that case that where the agreement to sell land stipulated that it was subject to grant of permission by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976, and the said authority refused to grant such permission then such order of the competent authority should have been necessarily taken into consideration to decide as to whether to exercise the discretionary jurisdiction to direct specific performance of that agreement or not. Para 39 of the judgment is reproduced as under:- "39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Chandnee Vidya Vati Madden v. Dr. C.L. Katial, (1964) 2 SCR 495 : AIR 1964 Supreme Court 978 , and Nirmala Anand v. Advent Corpn. C.L. Katial, (1964) 2 SCR 495 : AIR 1964 Supreme Court 978 , and Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 5 SCC 481 ; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted." 53. In A.C. Arulappan v. Ahalya Naik (Smt.), (2001) 6 SCC 600 , the Hon'ble Apex Court held that discretion of the Court regarding grant of specific relief is not to be exercised in arbitrary or unreasonable manner. Equitable principles in Section 20 must be kept in mind while granting decree for specific performance. 54. In K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77 , the Hon'ble Apex Court reinstated the jurisdiction of the court to decree specific performance. Para 29 of the judgment is reproduced as under:- "29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while .nonperformance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589 : AIR 1996 Supreme Court 2814 , by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court." 55. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Others, AIR 1987 Supreme Court 2328 , the Hon'ble Apex Court held that the court should meticulously consider all facts and circumstances of the case while decreeing the suit for specific performance. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. Para 14 of the judgment reads as under:- "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. 56. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. 56. In Prakash Chandra v. Angadlal and Others, AIR 1979 Supreme Court 1241 , the Hon'ble Apex Court, after considering the provisions of Section 20 of the Specific Relief Act, held that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. Para 9 of the judgment reads as under:- "9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted be relief of specific performance. An application on has been filed before us by the first and second respondents alleging that the said respondents had raised certain court auctions on the site during the pendency of the litigation and, there fore, specific relief should not be granted to the appellant. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. Having regard to the material before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant." 57. In Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 Supreme Court 2609 , the Hon'ble Apex Court observed that in construing the document one must have regard not to be presumed intention of the parties but to the meaning of the words they have used. If two interpretations of the document are possible, one which would give effect and meaning to all its parts should be adopted and for the purpose, the words creating uncertainty in the document can be ignored. Para 19 and 20 of the judgment are reproduced as under:- "19. Both sides have relied upon certain passages in Odgers' "Construction of Deeds and Statutes" (5th ed. 1967). There (at pages 28-29), the First General Rule of Interpretation formulated is : "The meaning of the document or of a particular part of it is therefore to be sought for in the document itself". That is, undoubtedly the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect with certain exceptions contained in Sections 95 to 98 of the Act. Of course, "the document" means "the document" read as a whole and not piecemeal. 20. The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers' short book under the First Rule of Interpretation set out above : Lord Wensleydale in Monypenny v. Monypenny, (1861) 9 H.L.C. 114 at p. 146. 20. The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers' short book under the First Rule of Interpretation set out above : Lord Wensleydale in Monypenny v. Monypenny, (1861) 9 H.L.C. 114 at p. 146. said : "the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions." Brett, L.J., in Re Meredith, ex p. Chick [1879] 11 Ch. D. 731 at p. 739. observed : "I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke.... They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used." 58. In B.K. Muniraju v. State of Karnataka and Others, (2008) 4 SCC 451 , the Hon'ble Apex Court reiterated the principles for interpretation of deeds and documents, and, in Para 18 and 19 of the judgment, held as under:- "18. The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible - the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar v. Manikrao, (1999) 3 SCC 573 , Subbegowda v. Thimmegowda, (2004) 9 SCC 734 , and Bishwanath Prasad Singh v. Rajendra Prasad, (2006) 4 SCC 432. 19. The above principles make it clear that we have to see terms and conditions and recitals in the document and not the title alone. Though the document, according to the appellant, "Certificate of Grant", perusal of the clauses therein, clearly shows that the land was sold on 04.03.1948 in a public auction and Motappa purchased the same for a price of Rs. 408.12. In addition to the recitals, the "darkhast register extract" produced as Annexure "C" before the High Court also shows that the land in question was sold for a "price". Form I also indicates that the land in question was purchased and what was paid by the purchaser under the said document was the purchase price." 59. In Th. Shanker Singh v. Dharmdas, 1995 AIHC 364 , the Division Bench of this Court considered the provisions of Section 16(c) of the Specific Relief Act and observed that it is not requirement of law that a person desiring execution of the agreement should always be ready at every moment of his life with the money which he would have to pay towards the same. Para 17 and 18 of the judgment are reproduced as under:- "17. Learned counsel for the defendant next urged that as the plaintiff was not ready and willing to perform this part of the contract within the meaning of Section 16, the suit was liable to be dismissed. It is admitted by the defendant that necessary averments relating to readiness and willingness have been made in the plaint. The trial court as well as the learned Single Judge after considering the evidence, concluded that the plaintiff was always ready to perform his part of the contract. That finding is supported by the circumstances. It is not the requirement of law that a person desiring execution of the agreement, should always be ready at every moment of his life with the money which he would have to pay towards the same. 18. That finding is supported by the circumstances. It is not the requirement of law that a person desiring execution of the agreement, should always be ready at every moment of his life with the money which he would have to pay towards the same. 18. The question as to whether or not, the plaintiff was ready and willing to perform the contract, was one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations. Substantial thing, for which the defendant bargained was the payment of the price, and, unless time be and remain of the essence, he obtained what he bargained for." 60. Apart from the above, the Hon'ble Apex Court in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 , also considered the provisions of Order 41 Rule 33 and Section 96 of the Civil Procedure Code and held that it is no doubt true that the High Court was exercising the power as first appellate court and hence it was open to the court to enter into not only questions of law but questions of fact as well but at the same time the appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence on the principle that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. Para 29 to 31 of the judgment read as under:- "29. Before more than a century, in Coghlan v. Cumberland, (1898) 1 Ch 704 , Lindley, M.R. pronounced the principle thus; "Even where the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen." [see also observations of Lord Thankerton in Watt v. Thomas, (1947) 1 All England Reporter 582 ]:- 30. In Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32 , the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated; "But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given." 31. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given." 31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, 1950 SCR 781 , stated; "7. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact." 61. In Vimlesh Kumari Kulshrestha v. Sambhajirao and Another, (2008) 5 SCC 58 , while considering the provisions of Order 23 Rule 1(3) (b), the Hon'ble Apex Court held that when application for withdrawal of first suit was filed after filing the second suit and withdrawal of suit was allowed on payment of costs to opposite party then it was wrong in dismissing the second suit on the ground that it was hit by Order 23 Rule 1 (b) merely because specific permission to file second suit was not obtained. Para 9 to 17 of the judgment are reproduced as under:- "9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. Para 9 to 17 of the judgment are reproduced as under:- "9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the Respondent in regard to payment of proper court fee. We, therefore, are of opinion that Order 23 Rule 1 of the Code was not applicable to the facts and circumstances of the present case. 10. A somewhat similar question came up for consideration in Mangi Lal v. Radha Mohan, 1930 Lahore 599(2) , wherein it was held : (AIR p.599) "Order 23, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits." 11. The said view was followed by the Kerala High Court in P.A. Muhammed v. Canara Bank, ( AIR 1992 Kerala 85). 12. An identical view was also taken in Girdhari Lal Bansal v. Chairman, Bhakra Beas Management Board, AIR 1985 Punjab and Haryana 219 , wherein it was held : "4. ...The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dated 18-11-1982. The learned Counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then Order 23, C.P.C. is not attracted and the second suit cannot be dismissed under Order 23, Rule 1(4) of the Civil Procedure Code Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under Order 23, C.P.C." 13. We agree with said views of the High Courts. 14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned Trial Court. 14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the costs as directed by the Court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passed by the Court. It is trite that even a presumption of implied grant can be drawn. 15. In Hari Basudev v. State of Orissa, AIR 2000 Orissa 125 , a Division Bench of the Orissa High Court held : "7. As already indicated, the cause of action accrued to opposite party No. 4 to file the election dispute under Section 30 of the Act only after publication of the result of the election. Opposite party No. 4 in his petition made out a case for grant of permission to withdraw M.J.C. No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted." 16. In Mulla's The Civil Procedure Code, Seventeenth Edition, page 674, it is stated : "(g) Permission need not be Express.- The permission mentioned in this section need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, Page 0740 in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as compromised and not on merits. An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant." 17. For the reasons aforementioned, we are of the opinion that the High Court was not correct in applying the provisions contained in Order 23 Rule 1 of the Civil Procedure Code in the facts and circumstances of the case." Both the parties in the present case deal with the real estate business and they know the meaning of each word enumerated in the agreement. The Hon'ble Supreme Court in Vimlesh Kumari Kulshrestha v. Sambhajirao and Another, (2008) 5 SCC 58 , relied upon a decision of the House of Lords in Hillas & Co. Ltd. v. Arcos Ltd., 1932 All England Reporter Rep 494 (HL). In Para 22 of the judgment reads as under:- "22. Reliance, has been placed by Mr. Narasimha on a decision of the House of Lords in Hillas & Co. Ltd. v. Arcos, Ltd. , wherein it was held : 1932 All England Reporter Rep 494 (HL) "It is the duty of the court to construe agreements made by business men - which often appear to those unfamiliar with the business far from complete or precise- fairly and broadly, without being astute or subtle in finding defects; on the contrary, the court should seek to apply the maxim verba ita sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does not mean that the court is to make a contract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law, as, for instance, the implication of what is just and reasonable to be ascertained by the court Page 0741 as matter of machinery where the contractual intention is clear but the contract is silent on some detail. Thus in contracts for future performance over a period the parties may not be able nor may they desire to specify many matters of detail, but leave them to be adjusted in the working out of the contract." 62. In the present case the agreement on behalf of the defendant No.1 (the first party) was executed through Shri D.D. Malhan and reply of notice served by the plaintiff was also given by the counsel for the Party No.1 on behalf of the Firm through Shri D.D. Malhan but Shri D.D. Malhan has not been examined in the present case. The Hon'ble Supreme Court in Vidhyadhar v. Manikrao and Another, (1999) 3 SCC 573 , held that if a party abstains from entering the witness-box, an adverse inference would arise against him under Section 114 Ill.(g) of the Evidence Act of 1872. Para 17 of the judgment is reproduced as under:- "17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230 . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madhya Pradesh 225 also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madhya Pradesh 225 also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punjab and Haryana 7 , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box." 63. The plaintiff, in his plaint, averred that the defendants No.1 to 3 agreed to sell the disputed plot for a consideration of Rs. 4,10,00,000/- and executed an agreement dated 19th May, 2004. The plaintiff paid Rs. 7,00,000/- through Cheque and Rs. 3,00,000/- by cash to the defendants No.1 to 3. In addition to the above, the plaintiff was also required to give to the defendants a showroom on the ground-floor measuring 1000 square feet super- built-area after construction of complex. The remaining amount of the sale- consideration, as per the agreement, was to be paid within 45 days at the time of registry; all the proceedings were to be completed within 60 days; the expenses of registry will be borne by second party. The defendants did not get the lease-deed executed and registered from the JDA in their favour, therefore, on 47th day i.e. 5th July, 2004 a legal notice was served by the plaintiff on the defendants to let him know as to whether they got the sale- deed executed and registered in their favour from the JDA. All the formalities are required to be completed within 60 days. The plaintiff is ready and willing to pay the remaining amount at the time of registry before the Sub Registrar and to get the sale-deed registered in his favour. The defendants, in their reply dated 16th July, 2004 (Exhibit-10), replied that the plaintiff is required to incur the expenses of stamping and registration charges of the lease-deed to be executed by the JDA in favour of the defendants. The defendants, in their reply dated 16th July, 2004 (Exhibit-10), replied that the plaintiff is required to incur the expenses of stamping and registration charges of the lease-deed to be executed by the JDA in favour of the defendants. The plaintiff sent a rejoinder dated 26th July, 2004 stating therein that there was no term in the agreement to the effect that the expenses of execution of the lease-deed and its registry by the JDA in favour of the defendants are to be borne by the plaintiff. The defendants are required to bear these expenses. The plaintiff is ready to bear the expenses of the sale-deed to be executed and registered by the defendants in favour of the plaintiff. The plaintiff is also ready and willing to perform his part of the agreement and he is also ready to pay the remaining amount of sale consideration.64. So far as averments in respect of readiness and willingness, as required under Clause (c) of Section 16 of the Act are concerned, the same are there.65. Now the question is whether the said averments have been proved or not by the plaintiff by producing cogent evidence. As mentioned above, the plaintiff has already shown his readiness and willingness in the notice sent on his behalf by his counsel on 5th July, 2004 and in the rejoinder to the reply, sent to the defendants on 26th July, 2004. PW-1 N.K. Gupta, in his affidavit, has also stated that he was always ready and willing to pay the remaining amount of contract and to get the sale-deed executed and registered in his favour. He is ready to make the arrangement of entire amount within three days. He is competent to make arrangement of the entire amount within twenty four hours also. He gave notice through his counsel to the defendants on 47th day itself whereas all formalities were to be completed within 60 days as per the term of the agreement. The defendants gave wrong reply to his notice that the plaintiff is required to bear the expenses of the registry of the lease-deed to be executed by the JDA in favour of the defendants also. PW-1, in his cross-examination also stated that he is paying income-tax of about 2 to 3 crore rupees per annum. There was income-tax raid at his residence but his account was not seized. PW-1, in his cross-examination also stated that he is paying income-tax of about 2 to 3 crore rupees per annum. There was income-tax raid at his residence but his account was not seized. There was arrangement of the entire amount at the time of drafting the suit, therefore, there is no need to submit any document in this regard.66. It is relevant to mention that the agreement (Exhibit-1) has been executed in the name of M/s. Malhan Construction, as first party, through its partner Shri D.D. Malhan. The reply to the notice (Exhibit-10) was also sent on behalf of M/s Malhan Construction through its partner Shri D.D. Malhan. No doubt, the agreement (Exhibit-1) has been signed by D.D. Malhan and J.K. Malhan, both, on behalf of M/s. Malhan Construction, but when the agreement has been executed on behalf of Firm through D.D. Malhan and reply to notice has also been sent on behalf of the Firm through its partner D.D. Malhan then there appears no explanation on the record as to why Shri D.D. Malhan, partner of M/s. Malhan Construction, has not been examined in the present case. DW-1 Jugal Kishore Malhan, in his affidavit, stated that there was a raid of income-tax Department at the plaintiff's house on 30th June, 2004. DW-1, in his cross-examination, stated that he is not aware that the plaintiff is running his business in the name of 'Manglam Group' and its Manglam City and other 20 to 25 projects are going on. He also stated that he is not aware that the plaintiff pays 7 to 8 lac rupees towards income-tax in his individual capacity. He stated that in Exhibit-1, it was written that the registry expenses will be borne by the plaintiff meaning thereby for both the registries the expenses will be borne by the plaintiff. In his cross- examination he admitted that he never demanded any money in writing from the plaintiff. He further admitted that the counsel for the plaintiff told him that in case he is ready to execute and register the sale-deed, the plaintiff is ready to pay the entire remaining amount within 24 hours. He stated that he is not ready to execute and get the sale-deed registered in favour of the plaintiff even if the payment of entire amount is paid within three days.67. He stated that he is not ready to execute and get the sale-deed registered in favour of the plaintiff even if the payment of entire amount is paid within three days.67. From the pleadings and evidence of the parties, it is clear that the agreement was executed in between both the parties on 19th May, 2004; the defendants have admitted execution of the agreement (Exhibit-1); they also admitted that they received ten lac rupees and remaining amount was to be paid within 45 days by the plaintiff at the time of registry; all formalities were to be completed within 60 days. From the notice (Exhibit-2), the reply thereto (Exhibit-10) and the rejoinder (Exhibit-11), it appears that the dispute arose in between the both the parties on payment of expenses, costs and charges towards execution, stamping and registration of the lease/deed, which was to be executed by the JDA in favour of the defendants No.1 to 3. According to the plaintiff, the said expenses were to be borne by the defendants, whereas, as per the defendants the said expenses were to be borne by the plaintiff. The word 'registry' has been used at three places in the agreement (Exhibit-1). There is no specific condition in the agreement as to who will bear the expenses in respect of lease deed to be executed and registered by the JDA in favour of the defendants No.1 to 3. The learned counsel for the defendant- appellants referred the statements of PW-1 and DW-1 to show that in absence of any specific condition in the agreement about it, the same may be construed in favour of the defendants and it may be held that the word 'registry' used in the agreement includes the payment of both the registries to be executed and registered by JDA in favour of the defendants No.1 to 3 and another by the defendants No.1 to 3 in favour of the plaintiff.68. On the other hand, the learned counsel for the plaintiff-respondent also referred the statements of PW-1 and DW-1, and contended that the word 'registry' used at three places in the agreement (Exhibit-1) may be construed in the manner as written in it and even from the appreciation of evidence it is clear that the plaintiff was required to bear the expenses in respect of sale-deed to be executed and registered only in his favour by the defendants. So far as the expenses in respect of the lease-deed to be executed and registered by the JDA in favour of the defendants, are concerned, the same were not required to be borne by the plaintiff.69. I have also examined the statements of PW-1 and DW-1 and also gone through the entire agreement (Exhibit-1) to reach to a conclusion as to who was to bear the expenses, costs and charges towards execution, stamping and registration of the sale-deed to be executed by the JDA in favour of the defendants No.1 to 3, and, after examining the same, I find that the word 'registry' used in the agreement clearly shows that it was used only in respect of the sale-deed, which was to be executed and registered by the defendants No.1 to 3 in favour of the plaintiff and not in respect of the lease-deed which was to be executed and registered by the JDA in favour of the defendants No.1 to 3.70. Apart from the above, it is also relevant to mention that in absence of any specific condition about it, a reference may be given to Section 32 of the Rajasthan Stamp Act, 1998 and Section 29 of the Indian Stamp Act, 1899, which provide that in absence of an agreement to the contrary, the expenses of providing the proper stamp shall be borne in the case of conveyance by the grantee; in the case of lease of agreement to lease by the lessee or intended lessee. Section 32 and Section 29, as referred above, are reproduced as under:- "32. Duties by whom payable.- ... (a) ..... (b) in the case of a conveyance (including a re-conveyance of mortgaged property) - by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee;" "29. Duties by whom payable.- ... (a) ..... (b) ..... (bb) .... (c) in the case of a conveyance (including a reconveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease - by the lessee or intended lessee;" 71. The provisions of law also make it clear that in absence of any specific condition the expenses of providing proper stamp shall be borne by the lessee. The provisions of law also make it clear that in absence of any specific condition the expenses of providing proper stamp shall be borne by the lessee. In the lease-deed to be executed by the JDA in favour of the defendants, the defendants are the lessee and the expenses of providing the proper stamp shall be borne by lessee i.e. the defendants.72. In view of the above discussions in respect of the facts, evidence - both oral and documentary, and the case law cited at the bar, I am of the view that the Issues No.1 and 2 both have rightly been decided by the learned trial court in favour of the plaintiff and no interference in the said finding is called for by this Court.73. I do not find any merit in any of the submissions of the learned counsel for the appellants and consequently the appeal, being devoid of any merit, is hereby dismissed with no order as to costs.Appeal dismissed. *******