JUDGMENT : Order on Civil Miscellaneous Review Application No. 192 of 2021 1. Heard Sri Santosh Kumar Kesarwani, learned counsel for the review applicant/defendant no. 1-revisionist, Sri P.K. Jain, learned Senior Counsel assisted by Sri Abu Bakht, learned counsels for the opposite party/ plaintiff-respondent no. 1. 2. This review application has been filed by the counsel for the defendant no. 1- revisionist praying for review of the judgment and order dated 14.07.2021 passed by this Court dismissing the above noted civil revision. 3. The brief facts relevant for deciding the case are that the defendant no.1/revisionist claiming himself to be the owner of Premises No. 7/89, Tilak Nagar, Kanpur Nagar (area 3295.53 sq. metres) executed a registered agreement to sell in favour of plaintiff/respondent no.1 on 31.08.1998. The plaintiff/respondent no.1 has paid Rs. 10,00,000/- to the defendant no.1/revisionist towards advance sale consideration on different dates. The defendant no.1/revisionist informed the plaintiff/respondent no.1 that with regard to the property in dispute, litigation is pending before the Hon'ble High Court and as soon as the same is decided, he will execute the sale deed in his favour as per the agreement dated 31.08.1998. The plaintiff/respondent no.1 came to know that the defendant no.1/revisionist is contacting third parties for the sale of the property in dispute and therefore, he instituted an Original Suit No. 111 of 2009 for injunction praying for restraining the defendant no.1/revisionist from transferring, selling or alienating the suit property to any third party and from creating any encumbrances over the same. After the institution of the aforesaid suit, the defendant no.1/revisionist informed the plaintiff/respondent no.1 that the litigation is still pending before the Hon'ble High Court with regard to the property in dispute and therefore, he is not in a position to execute the sale deed in favour of plaintiff/respondent no.1, hence, the plaintiff/respondent no.1 withdrew/not pressed his injunction suit. Thereafter, the plaintiff/respondent no.1 came to know that the defendant no.1/revisionist is negotiating with defendant nos. 2 and 3 for selling of the suit property. He also came to know that the litigation regarding the property has come to an end and the defendant no.1/revisionist has won the case from Hon'ble High Court and Supreme Court. Thereafter, the plaintiff/respondent no.1 came to know that the defendant no.1/revisionist is negotiating with defendant nos. 2 and 3 for selling of the suit property. He also came to know that the litigation regarding the property has come to an end and the defendant no.1/revisionist has won the case from Hon'ble High Court and Supreme Court. Hence, the plaintiff/respondent no.1 instituted the present Original Suit No. 751 of 2017 before the trial court praying for a decree for specific performance of contract directing the defendant no.1/revisionist to execute the sale deed of the property in dispute as per the agreement to sell dated 31.08.1998 and put the plaintiff/respondent no.1 in possession in respect of the aforesaid property. 4. During the pendency of suit, defendant no.1/revisionist filed an application under Order VII, Rule 11 C.P.C., paper no. 44-C praying that the plaint of the suit may be rejected, suit being barred by Order II, Rule 2 C.P.C. It was pleaded in the aforesaid application that in paragraph 6 of the plaint, the plaintiff/respondent no.1 has admitted that he had earlier instituted a suit for injunction against defendant no.1/revisionist for restraining him from selling the property in dispute in violation of the terms of the agreement to sell. It was further pleaded that the cause of action in the previous suit for injunction was same as in the present suit for specific performance of contract. In the earlier suit, the plaintiff / respondent no.1 had two reliefs available to him, one of injunction and second of specific performance of contract. He sought only one relief of injunction and therefore, the present suit filed subsequently is barred by Order II, Rule 2 C.P.C. The Hon'ble Supreme Court has held that such a suit is barred by law, hence, the plaint of the suit deserves to be rejected under Order VII, Rule 11 (d) C.P.C. The plaintiff/respondent no.1 filed his objection to the aforesaid application stating that the earlier suit was filed praying for the relief of injunction only and was withdrawn since the defendant no.1/revisionist informed that the litigation is pending before the Hon'ble High Court. The earlier Original Suit No. 111 of 2009 was not pressed by the plaintiff/respondent no.1 before the court and by the order dated 26.08.2010, the trial court passed the order that the plaintiff/respondent no.1 wants to withdraw the suit, hence, it is being dismissed as not pressed. The earlier Original Suit No. 111 of 2009 was not pressed by the plaintiff/respondent no.1 before the court and by the order dated 26.08.2010, the trial court passed the order that the plaintiff/respondent no.1 wants to withdraw the suit, hence, it is being dismissed as not pressed. In the order aforesaid, the trial court has referred to the objection of the defendant no.1/revisionist wherein he has stated that the case regarding the property in dispute was pending before the Hon'ble High Court which he has won but appeal has been preferred by the other side before the Hon'ble Supreme Court and the same is pending. He further stated that unless the case is decided by the Hon'ble Supreme Court, he cannot execute the sale deed and therefore, there is no justification for proceeding with the present suit. In the application praying for withdrawal of the suit, the plaintiff/respondent no.1 had clearly mentioned that the defendant no.1/revisionist has not refused to execute the sale deed. Permission was sought from the court below for instituting the suit for specific performance in case of refusal by the defendant no.1/revisionist. Thereafter, the suit was dismissed as withdrawn and not pressed. 5. By the judgment and order dated 14.07.2021, this court dismissed the revision on the following consideration and findings:- 1. Learned counsel for the defendant no.1/revisionist has submitted that when the earlier suit was instituted by the plaintiff/respondent no.1, he had the option of seeking two reliefs, relief of injunction and specific performance of contract. He chose only one relief of injunction and therefore, he cannot institute a suit for specific performance of contract. He has relied upon three cases of the Hon'ble Apex Court in support of his arguments viz., Kamala Vs. K.T. Eshwara Sa, AIR 2008 SC 3174 ; Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited, 2013 (1) SCC Page 625 and; Vurmi Pullarao Vs. Vemari Vyankata Radharani, AIR Online 2019 SC Page 1959. 2. Learned Senior Counsel for the plaintiff/respondent no.1 has relied upon clause 4 of the Memorandum of Understanding (MOU) dated 01.09.1998 executed between the parties wherein it was clearly provided that the deed of transfer of the suit property shall be executed only after the litigation is decided in favour of the first party. 2. Learned Senior Counsel for the plaintiff/respondent no.1 has relied upon clause 4 of the Memorandum of Understanding (MOU) dated 01.09.1998 executed between the parties wherein it was clearly provided that the deed of transfer of the suit property shall be executed only after the litigation is decided in favour of the first party. He has given details of the litigation of the defendant with third party and the litigation between the defendant and the third party came to an end before the Hon'ble Apex Court on 16.12.2015 and thereafter, the present suit has been instituted. He has submitted that the earlier suit was only for injunction against the defendant no.1/revisionist who was going to sell the suit property to third party. On the undertaking of the defendant no.1/revisionist before the trial court, the suit was withdrawn. The cause of action for the earlier suit arose in the year 2009 when the earlier Suit No. 111 of 2009 was instituted. He has submitted that no cause of action for instituting the suit for specific performance of contract arose at the time of filing of the Original Suit No. 111 of 2009 since the litigation was pending regarding the property in dispute before the Hon'ble Supreme Court at that time. He has relied upon the judgements in the cases viz., Pramod Kumar and others Vs. Jhalak Singh and others, 2019 (2) ARC page 322 paras, 26, 27 and 41; Babu Sahab Chimma Sahab and others Vs. Mahesh Vijay Sinha, 2017 (2) SC page 203 paras 15 and 16; Inbasegaran and another Vs. S. Natrajand (Dead) thr. Lrs., 2015 (2) ARC page 190 paras 17, 18, 19, 32 and 33; Lakshmi alias Bhagyalakshmi and Anr. Vs. E. Jayaram (D) by Lrs., 2013 (1) ARC page 640 paras 6 and 7 and; Gurbux Singh Vs. Bhooralal, 1964 SC page 1810 paras 6 and 7. 3. After hearing the learned counsels for the parties, this Court finds that the main grievance of the defendant no.1/revisionist is that the case laws relied by him before the trial court have not been considered. The first case relied upon by the learned counsel for the defendant no.1/revisionist is Kamala (supra) wherein the Hon'ble Apex Court has repeated the settled law that for arriving at conclusion that suit is barred under any law, the averments made in the plaint should be looked into. The first case relied upon by the learned counsel for the defendant no.1/revisionist is Kamala (supra) wherein the Hon'ble Apex Court has repeated the settled law that for arriving at conclusion that suit is barred under any law, the averments made in the plaint should be looked into. In that case, the suit was filed claiming for relief of partition of properties. No property was found available for partition. The co-sharers of the property had divided the property by metes and bounds and therefore, the Hon'ble Apex Court held that plaint of such a suit cannot be rejected under Order VII, Rule 11 (d) C.P.C. since whether any property is available for partition is a question of fact. The identity of the properties which were subject matter of earlier suit vis-a-vis properties which were subsequently acquired and their effect is beyond the purview of Order VII, Rule 11 (d) C.P.C. This case law does not supports the revisionist at all. 4. The second judgement relied upon by the learned counsel for the defendant no.1/revisionist is Vurmi Pullarao (supra) wherein the second suit for specific performance of contract was found barred by Order II, Rule 2 (3) C.P.C. since in the earlier suit for injunction, plaintiff/respondent no.1 was entitled to sue for specific performance of contract and there was complete identity of cause of action between the earlier suit and the subsequent suit. The plaintiff/respondent no.1 omitted to claim the relief. Hence, the second suit was found to be barred by Order II, Rule 2 (3) C.P.C. Factual position is otherwise in the present case. 5. In the present case when the Original Suit No. 111 of 2009 was instituted, the cause of action for filing of suit for specific performance of contract had not arisen in favour of the plaintiff/respondent no.1. It is on record that the proceedings before the Hon'ble Supreme Court came to an end in the year 2015 and hence, the suit was instituted in the year 2017. Therefore, this judgement also does not supports the defendant no.1/revisionist. 6. The third judgement in the case of Virgo Industries (supra) relied upon by the learned counsel for the defendant no.1/revisionist is distinguishable on facts. In this case also, the cause of action was available to the plaintiff/respondent no.1 and he failed to incorporate the relief of specific performance of contract in the first set of suits. 6. The third judgement in the case of Virgo Industries (supra) relied upon by the learned counsel for the defendant no.1/revisionist is distinguishable on facts. In this case also, the cause of action was available to the plaintiff/respondent no.1 and he failed to incorporate the relief of specific performance of contract in the first set of suits. Hence, the second set of suits were held to be barred by Order II, Rule 2 C.P.C. The submission of learned counsel for the defendant no.1/revisionist that the bar of filing subsequent suits on same cause of action is applicable both during pendency of first suit and also when first suit is disposed of, cannot be faulted with. However, in the earlier suit of the plaintiff/respondent no.1 in the present case, no cause of action had arisen for seeking the relief of specific peformance of contract in view of clause 4 of the agreement between the parties that such a cause of action would arise only after the litigation regarding the suit property is decided by the Hon'ble High Court. Therefore, the present case also does not helps the learned counsel for the defendant no.1/revisionist. 7. Learned counsel for the plaintiff/respondent no.1 has relied upon the judgement in the case of Pramod Kumar (supra) wherein the Hon'ble Supreme Court has clearly held that for attracting the bar of Order II, Rule 2 C.P.C. in the second suit, the cause of action in both the suits should be identical. Clearly in the present case, the cause of action in the suit in dispute is not identical. The judgement in the case of Bapu Sahab (supra) is to the same effect as clear from paragraph 15 & 16 thereof. In the case of Inbasegaran (supra), the Hon'ble Apex Court held the second suit not barred by Order II, Rule 2 on the ground that both the suits were founded on distinct cause of action. 8. The other judgements relied by the learned counsel for the plaintiff/respondent no.1 are regarding the same proposition of law and do not call for further consideration since the learned counsel for the defendant no.1/revisionist has failed to prove that the suit of the plaintiff/respondent no.1 is barred by Order II, Rule 2 C.P.C. and his application under Order VII, Rule 11 C.P.C. has been incorrectly decided by the trial court. 6. Learned counsel for the review applicant/defendant no. 6. Learned counsel for the review applicant/defendant no. 1-revisionist has submitted that in paragraph 11 of the judgment under review, this court has wrongly relied upon the clause 4 of the agreement (dated 01.09.1998) executed between the parties, when the proceedings were arising out of the rejection of an application under Order 7, Rule 11 CPC filed by the defendant no. 1/revisionist. He has stated that while deciding an application under Order 7, Rule 11 (d) C.P.C only plaint averments are required to be gone into. There was admission in paragraph 6 of the plaint about the previous suit filed by plaintiff/respondent no. 1 for injunction against the defendant no. 1 / revisionist to be restrained from the transferring, selling or alienating the property to third parties and from creating any encumbrances in respect of property. It is admitted to the plaintiff / respondent no. 1 that he moved an application for withdrawing the earlier suit. In the suit, complete cause of action for seeking relief of a decree of specific performance of contract was there. The plaintiff-respondent omitted to sue for all the reliefs and therefore the subsequent suit in dispute was barred by Order 2, Rule 2 (3) C.P.C. 7. He has further submitted that even if it is assumed that at the time of withdrawal of suit, the cause of action for praying for the relief of the specific performance of contract was not there, yet, the second suit is not maintainable since the court did not granted him permission as required under Order 2, Rule 2 (3) C.P.C. 8. Learned Senior Counsel for the plaintiff/respondent no. 1 has submitted that the judgment of this Court is correct and does not calls for any review. He has relied upon the judgment in the case of Vurimi Pullarao vs. Vemari Vyankata Radharani Dhankoteshwarrao, AIR 2020 (SC) 395 and has submitted that in case, the court comes to the conclusion that the suit praying for a decree of specific performance of contract subsequently is barred by the Order 2, Rule 2, the amount paid towards sale consideration may be directed to be returned to the plaintiff / respondent no. 1 in order to do complete justice between the parties. 9. 1 in order to do complete justice between the parties. 9. After hearing counsel for the parties, this court finds that under Order 2, Rule 2 (1) the plaintiff is required to include the whole of the claim to which the plaintiff is entitled to make in respect of the cause of action. Order 2, Rule 2 (2) provides that where the plaintiff omits to sue in respect of portion of claim or intentionally relinquishes any portion of his claim, he shall not afterwords, sue in respect of the portion so omitted or relinquished. Order 2, Rule 2 (3) provides that where the plaintiff is entitled to more than one relief in respect of the same cause of action, he may sue for all or any of such reliefs; but if it omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for the omitted relief. 10. In the present case, the plaintiff initially instituted the suit only for praying for a decree of injunction against the defendant-revisionist. When he withdrew the suit, he prayed for permission to institute fresh suit but it was not granted by the court and it simply dismissed the suit as not pressed. As per Section 11, explanation 'V' C.P.C, any relief claimed in the plaint, which is not expressly granted by the decree shall for the purposes, of section, be deemed to have been refused. Therefore, it is clear that when the permission prayed for filing of fresh suit subsequently was not granted in the earlier suit to the plaintiff, his subsequent suit would be barred by the Order 2, Rule 2 (3) C.P.C and hence the application of the defendant-revisionist under Order 7, Rule 11 was maintainable and ought to have been allowed. 11. In the order of this court dated 14.07.2021, there appears to be error apparent on the face of record in relying upon the agreement between the parties dated 01.09.2004. It provided that the deed of transfer of the suit property shall be executed only after litigation is decided in favour of the plaintiff. This court ought not have considered the agreement dated 01.09.2004 in the present proceedings scope whereof was confined to parameters of interference in orders rejecting application under Order 7, Rule 11 C.P.C. 12. It provided that the deed of transfer of the suit property shall be executed only after litigation is decided in favour of the plaintiff. This court ought not have considered the agreement dated 01.09.2004 in the present proceedings scope whereof was confined to parameters of interference in orders rejecting application under Order 7, Rule 11 C.P.C. 12. Regarding the judgment in the case of Vurmi Pullarao (supra) relied upon by the counsel for the plaintiff/respondent no. 1, this court finds that the Hon'ble Supreme Court exercised its extraordinary jurisdiction under Article 142 of Constitution of India directing refund of money advanced by the plaintiff to the defendant at the time of execution of agreement. This court is bereft of such power hence relief prayed on the basis of the above judgment of Apex Court cannot be granted by this court. 13. The judgment and order dated 14.09.2021 of this Court is reviewed and this civil revision is allowed. Consequently, the application of the defendant no. 1/revisionist filed before the trial court under Order 7, Rule 11(d) CPC is allowed and the Original Suit No. 751 of 2017 (Eldeco Housing And Industries Limited And 3 Others vs. Ashok Vidyarthi) stands dismissed. 14. However, there shall be no order as to costs.