S. Jagadeesan, J.The appellants are the plaintiffs in C.S.No.509 of 1979 on the file of this court. They filed the said suit against the respondents herein seeking a decree for specific performance of an agreement dated 17.2.1978 where under the respondents had agreed to sell the suit property to the appellants for a sum of Rs.2,75,000/- and received a sum of Rs.25,000/- by way of advance. As per the terms of the agreement, the sale is to be completed within six months from the date of intimation of the approval of the title by the appellants counsel. The further condition is that the sale should be free of all encumbrances. To get the approval of the appellants counsel, the respondents have to furnish the original title deeds to the appellants. The respondents did not comply with the condition of furnishing the original title deeds and not only avoided the compliance of the agreement; but also entered into a long term lease in respect of the other tenants in the suit property.

2.This necessitated the appellants to file the suit O.S.6584 of 1978 on the file of the City Civil Court, Chennai seeking a decree for injunction restraining the respondents herein from encumbering the property, stating that the appellants were always ready and willing to pay the balance of sale consideration and have the sale deed executed. Prior to the filing of the suit, the appellants intimated the respondents about the approval of title by their lawyer and the respondents herein sent a telegram dated 26.4.1978 to the appellants auditor seeking a weeks time to meet the appellants and complete the transaction. As the respondents tried to enter into a long term lease, the appellants issued a lawyers notice dated 19.7.1978, informing the respondents that the appellants are ready and willing to pay the balance of sale consideration and have the sale deed registered and requested the respondents to confirm the date for execution of the registration.

3.The respondents filed written statement in O.S.6584 of 1978 putting up a false case that the appellants agreed to discharge the loan to Sudarsan Chit Fund and since they failed to do so, the respondents entered into a long term lease with the tenants to raise funds and to discharge the loan. As the appellants did not discharge the said loan, they are deemed to be not ready and willing to perform their part of the contract and as such the respondents are not liable to execute the sale deed. Since the respondents expressed their unwillingness to execute the sale deed in the written statement filed in O.S.6584 of 1978, the present suit was filed, seeking the relief of specific performance.

4.The respondents filed a written statement in C.S.509 of 1979 wherein they admitted the suit agreement between the parties. The main defence raised by the respondents are that the appellants agreed to discharge the loan due to Sudarsan Chit Fund who already took steps to auction the property in order to recover the loan. As they did not discharge the said loan, the respondents were proceeded to enter into a long term lease in order to raise funds to discharge the said loan and the sale was avoided. The appellants, if really, had the funds, they could have discharged the loan and could have made an attempt to avoid the sale. When the appellants did not take any steps to discharge the loan, the inference is that they do not have the necessary funds either to discharge the loan due to Sudarsan Chit Fund or to pay the balance of sale consideration to the respondents. The further plea is that the present suit is barred under Order 2 C.P.C since the appellants have failed to include the relief of specific performance in the earlier suit filed by them i.e., O.S.6584 of 1978 on the file of the City Civil Court, Chennai.

5.On the above pleadings the learned trial Judge framed the following issues:

1.Are not the plaintiffs entitled for the specific performance of the sale agreement dated 17.2.1978

2.Is the suit barred under Order II C.P.C

3.Whether the plaintiff committed breach of the sale agreement dated 17.2.1978

4.What relief the plaintiffs are entitled to

6.After considering both oral as well as documentary evidence, the learned Judge dismissed the suit finding that the appellants were not ready and willing to perform their part of the contract, as they did not take any steps to avert the auction sale by taking any effort to discharge the debt due to Sudarsan Chit Fund. Further the respondents were ready and willing to perform their part of the contract. The suit is also barred under Order 2, Rule 2 C.P.C. Aggrieved by the same, the present appeal has been filed.

7.It is the contention of the learned counsel for the appellants that the learned Judge placed much reliance on the redemption suit filed by the first respondent on the file of the City Civil Court, Madras to come to the conclusion that the respondents were pressurised to discharge the mortgage debts due to Jai Krishna & Co. as well as Sudarsan Chit Fund and as such the appellants ought to have discharged the loan due to the respective creditors and insisted for the production of the original title deeds. In the absence of any recital in the suit agreement with regard to the discharge of any debt due to any creditors, the learned Judge is not correct in coming to the conclusion that the appellants are bound to discharge the loan amount and their failure to do so would lead to an inference that the appellants do not possess sufficient means to pay the balance of sale consideration in discharge of their obligation arising out of the suit agreement. In fact the learned Judge proceeded only on the basis of the redemption suit and the pressure on the respondents for the discharge of the loan and the learned Judge totally failed to take into consideration of the recitals in the sale deed as it is which alone reflects the intention of the parties to the agreement. It is further contended that after filing the suit, the respondents took out an application for a direction, directing the appellants to deposit the entire balance amount into the court and admittedly the appellants also deposited the entire amount into the court which was lying to the credit of the suit till the disposal of the suit. Hence it cannot be said that the appellants were not ready and willing to perform their part of the contract. Even with regard to the application of the principles of Order 2 C.P.C, there is a misconception on the part of the learned Judge in holding that the present suit is barred. The cause of action in the earlier suit O.S.6584 of 1978 filed by the appellants is not the same and the relief sought for is also not the same. Further the said suit was withdrawn immediately after the filing of the present suit and as such Order 2 C.P.C cannot be made applicable to the facts of the present case.

8.On the contrary, the learned counsel for the respondents contended that the number of documents produced by the appellants do not reflect their financial status or the financial soundness to pay the balance of sale consideration. The respondents entered into a long term lease with the tenants only due to the conduct of the appellants in not discharging the loans due to the financial companies. When once the appellants knew that the title deeds were with the financial companies for raising the loan and the appellants counsel having perused the documents at the office of the financial companies and having satisfied with the title of the respondents, they ought to have come forward to discharge the loan. The failure on their part is a clear proof that the appellants were not in a position to raise any fund and only after the respondents raised the funds through the tenants and discharged the loan due to the financial companies they came forward with the present suit for specific performance. Hence the finding of the learned Judge that the appellants were not ready and willing to perform their part of the contract is on the appreciation of the evidence available on record and no interference is called for. So far as the application of Order 2 C.P.C is concerned, the cause of action in the earlier suit O.S.6584 of 1978 on the file of the City Civil Court filed for the relief of injunction by the appellants is just verbatim of the cause of action mentioned in the present suit. When the cause of action is the same, naturally the principles of Order 2 C.P.C is applicable and hence the learned Judge has rightly held that the present suit is barred by the principles of Order 2 C.P.C. which finding also needs no interference.

9. From the above contentions, the following issues arise for consideration in this appeal:

(1)Whether the appellants committed any breach of the compliance of the suit agreement

(2)Whether the appellants were not ready and willing to perform their part of the contract

(3)Whether the appellants are entitled for the specific performance of the suit agreement

(4)Whether the suit is barred under Order 2 C.P.C

(5)To what relief the parties are entitled to

10. Issue No.1:The breach of condition of the agreement by the appellants, as alleged by the respondents, is that the appellants agreed to discharge the mortgage loan due to Sudarsan Chit Fund and they failed to do. Consequently the properties of the respondents were brought to sale and in order to avoid the sale, the respondents entered into the long term lease agreement with other tenants to raise funds and consequently the respondents discharged the mortgage loan. So far as the breach of this condition is concerned, the learned Judge proceeded on the basis that the appellants knew about the loan transaction and the existing mortgage debt. Further the appellants were also aware that the respondents were under pressure to discharge the debt as the suit property as well as another property were brought to sale. Inspite of that the appellants failed to make any attempt to discharge the loan and as such they committed the breach.

11. A perusal of the judgment of the learned Judge clearly reveals that the learned Judge come to the conclusion that the appellants were not ready and willing to discharge their obligation arising out of the suit agreement on the basis that the respondents were pressurised for the discharge of the loan especially when the suit O.S.8245 of 1975 filed by the first respondent against the two mortgagors were dismissed on 28.7.1976 and the appeal A.S.335 of 1976 was also dismissed on 4.4.1978. The appellants having known about the existing mortgages, ought to have taken some interest to discharge the mortgage debts to relieve the respondents from the pressure. The failure to do so virtually amount to clear proof that the appellants were not ready and willing to perform their part of the agreement.

12. In our considered view, whatever the reliance placed by the learned Judge on the suit filed by the first respondent to decide the readiness and willingness of the appellants is totally an incorrect and misconceived one. The redemption suit O.S.8245 of 1975 filed by the first respondent herein was of the year 1975 and the same was disposed of on 28.7.1976. Thereafter the first respondent filed the appeal A.S.335 of 1976 which was also dismissed on 4.4.1978. The suit agreement Ex.P1 dated 17.2.1978 is two months prior to the disposal of the first appeal preferred by the first respondent herein. To ascertain as to whether the appellants were aware about the mortgage debts, it is necessary to have a glance at the agreement.

13.The preamble portion of the agreement refers that the appellants/purchasers agreed to purchase the property free of encumbrance for a sum of Rs.2,75,000/-. The condition No.1 of the suit agreement Ex.P1 is that the vendors, the respondents herein have to give to the purchasers, the appellants advocate within one month from the date of the agreement, all the documents of title, encumbrance certificate, taxation receipt, blue prints and all other documents which the purchasers advocate may require. As per Clause 3 of the suit agreement, if the appellants advocate is satisfied about the title of the vendors, the respondents herein, the sale shall be concluded subject to the terms enumerated hereunder:

(a) the sale deed shall be executed and registered within six months from the date of the appellants advocate approves the title.

(b) The respondents shall execute the sale deed in favour of the appellants or their nominees.

(c) The respondents received a sum of Rs.25,000/- from the appellants as advance and in case the appellants refused to purchase the property inspite of the fact that the title has been approved by their advocate, the respondents shall be entitled to forfeit the sum of Rs.10,000/- and refund the balance amount.

(d) In case the respondents fail to execute and register the sale deed for whatsoever reason as per the wishes of the appellants on or before 31.8.78 the respondents shall be liable to pay and the appellants shall be entitled to recover a fixed sum of Rs.10,000/- as damages in addition of the sum of Rs.25,000/- (advance paid) together with interest at 10% from this date as stipulated herein paid by the appellants to the respondents as advance under this agreement. Without prejudice to the above, the appellants shall be entitled to enforce the specific performance of this agreement.

(f) The respondents shall execute two separate sale deed one in favour of Sri R. Vimalchand and/or his nominee, and another in favour of Sri Ratanchand and/or his nominee.

(e) The respondents shall refund the sum of Rs.25,000/- together with interest at 18% to the purchasers in case the appellants advocate is not satisfied about the title of the vendors.

14.Admittedly there is no reference to the existing mortgage in the suit agreement. Further admittedly there is no reference with regard to the discharge of the mortgage by the appellants herein. The conditions mentioned are only to the effect of furnishing the title deeds and other relevant documents by the respondents to the advocate of the appellants and thereafter the satisfaction of the appellants counsel with regard to the title of the respondents and finally within six months from the date of the approval of the title by the appellants advocate the sale to be completed.

15.When the intention of the parties is reduced into writing, it is only the terms of the written agreement would prevail. When there is no specific contemplation in the suit agreement with regard to the existence of the mortgage and discharge of the same by the appellants, it cannot be said that the appellants were aware about the existence of the mortgage at that time and they also agreed to discharge the mortgage debt. When there is no agreed terms with regard to the discharge of the mortgage debt by the appellants, their conduct in not discharging the mortgage debt cannot in any way lead to an inference that they were not ready and willing to perform their part of the agreement.

16.It is the admitted case of the parties that the respondents did not produce the original title deeds or any other relevant document to the appellants counsel to satisfy their title. The evidence of P.W.1 reveal that on coming to know of the fact of the existing mortgage debt, the appellants counsel went to the office of the mortgagors and verified the title of the respondents. After satisfying the title of the respondents, they issued a notice Ex.P3 dated 19.7.1978 stating that the counsel has verified the original documents lying with Sudarsan Chit Fund and satisfied with the title and as such the plaintiffs are ready and willing to perform their part of the agreement and called upon the respondents to execute the sale deed pursuant to the suit agreement. In fact specifically it is stated as follows:

"My clients are ready and willing to have the sale deed executed, as per the terms of the aforesaid agreement by paying the balance sale consideration. .. After receipt of your confirmation, my clients will purchase the stamp papers."

The stipulated time for the completion of the transaction by the parties is six months from the date of the approval of the title by the appellants counsel. Even otherwise Clause (d) of the agreement fixed the date for the completion of the sale deeds on or before 31.8.1978. The appellants had expressed their willingness in unequivocal terms under Ex.P3 dated 19.7.1978, much earlier to the expiry of the period. When that be so, it is for the respondents to explain as to why they did not perform their part of the contract. There is absolutely no explanation on the part of the respondents as to why they did not send any reply to Ex.P3 dated 19.7.1978 and the need for the respondents to enter into the long term lease on 1.9.1978, the very next day of the expiry of the date 31.8.1978 mentioned in the suit agreement.

17.It may also be pertinent to note that when the respondents put forth the plea that the appellants agreed to discharge the mortgage debt, whether the respondents had at any point of time called the appellants to discharge the said mortgage debt till the filing of the suit for injunction i.e., O.S.6584 of 1978 by the appellants. The respondents did not send any notice. Merely because the properties were brought to sale by the mortgagors, there is no obligation on the part of the appellants to discharge the same; especially when there is no specific understanding between the parties to that effect. When the respondents knowing fully well that the suit filed by the first respondent was dismissed and the appeal A.S.335 of 1976 was pending, entered into the suit agreement of sale, the respondents could have mentioned the mortgage debt in the agreement requesting the appellants to discharge the same, if they were hard pressed for the discharge of the loan, they could have requested the appellants for at least partial assistance for such discharge of the mortgage debt. When the suit agreement is silent with regard to such terms, it is not open to the respondents to put forth such plea in the written statement filed by them. It is also not their plea that subsequent to the execution of the agreement the parties had agreed for such terms. Hence when the respondents did not make any request to the appellants at any point of time, subsequent to the suit agreement, by issue of notice, calling upon them to discharge the mortgage debt or to assist them to discharge the mortgage debt, it cannot be said that the appellants had committed any default or non compliance of the suit agreement. The omission of mentioning the mortgage debt makes it clear that the appellants were not aware about the same. It is also not the case of the respondents that the appellants were informed about the subsisting equitable mortgage; especially when the same was not revealed in the encumbrance certificate.

18.In the evidence,P.W.1, the first plaintiff had categorically stated that in Ex.P3 notice dated 19.7.1978 it has been specifically stated that the appellants are ready and willing for the sale deed completed and pay the balance. Further he has stated that even at the time of deposing the evidence, he was having funds with him to purchase the suit property. He also stated in his evidence at no point of time the respondents asked him to pay any amount to Sudarsan Chit Fund to discharge the loan and there is no clause in the suit agreement for the discharge of such mortgage debt. The above evidence of P.W.1 was absolutely unchallenged in the cross examination. In the cross examination also there is not even a suggestion that the respondents made any request to the appellants to discharge the mortgage debt. When the respondents agreed to produce the original title deeds and having failed to do so because of the existing mortgages, the appellants counsel, on his own volition scrutinised the title deeds with the mortgagors and satisfied with regard to the title of the respondents and thereafter sent notice Ex.P3 dated 19.7.1978 to the respondents with regard to the satisfaction of the title and the appellants willingness to pay the balance of the sale consideration and get the sale deed executed. In such circumstance, we are of the view that the appellants cannot be said to have committed any breach of terms of the agreement and we find this issue in favour of the appellants.

19. Issues 2 and 3: These issues relate to the appellants readiness and willingness to perform their part of the contract. While discussing Issue No.1 we have elaborately dealt with the conduct of the appellants in sending the notice Ex.P3 on 19.7.1978, expressing their willingness to perform their part of the contract. The respondents did not take any steps to get the sale deed executed. When the appellants issued notice to the respondents, requesting them to execute the sale deed, they ought to have executed the sale deed and received the balance of sale consideration.

20.The fact remains that the mortgage debt is to the tune of Rs.3,90,000/-; whereas the sale consideration is Rs.2,75,000/- of which Rs.25,000/- was already received by the respondents. Definitely out of the balance of sale consideration, the entire mortgage debt cannot be wiped off. This itself is a clear proof that the respondents had suppressed about the mortgage debt from the knowledge of the appellants. If the existing mortgage debt is more than the sale consideration of the property, the appellants themselves might not have insisted for some arrangement to discharge the loan, as the mortgage debt can always be enforced against the property. Hence there cannot be any dispute that the equitable mortgage created by the respondents by deposit of title deeds with Sudarsan Chit Fund or Sudarsan Trading Co., was totally kept out of the knowledge of the appellants. This may be the reason for the non mentioning of the existence of the mortgages and any condition with regard to the discharge of the mortgage debt in the suit agreement.

21.Apart from the above, it is also an admitted fact that during the pendency of the suit the respondents took out an application seeking a direction, directing the appellants to deposit the entire balance of sale consideration and this court also issued such direction. The appellants have deposited the entire balance of sale consideration within the stipulated time in compliance of the orders of this court and the said amount was lying in court deposit till the disposal of the suit. When the appellants had deposited the amount pursuant to the orders of this court and the amount was kept in court deposit till the disposal of the suit, that is more than enough to establish that the appellants were ready and willing to perform their part of the contract. Consequently it cannot be said that the appellants were not ready and willing to perform their part of the agreement.

22.Considering the fact that the appellants had deposited the entire balance of consideration during the pendency of the suit, it may be pertinent to note the Explanation to Clause (c) of Section 16 of the Specific Relief Act. Section 16 of the Specific Relief Act reads as follows:

"16.Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person-

(a)who would not be entitled to recover compensation for its breach; or

(b)who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c)who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.--For the purposes of clause (c),--

(i)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;

(ii)the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

This section is in the negative form stating that the specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation (i) to Clause (c) makes it clear that wherever the payment of money is involved, 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. Hence on a consideration of Explanation (i) to Clause (c) of Section 16 it is clear that there is no obligation on the part of the appellant to tender the money or to keep the same in his pocket from the date of agreement till the date of filing of the suit. It is enough if he is in a position to raise funds. That bonafide can be tested when a direction is issued by the court. On a direction from the court if the amount is deposited, then an inference with regard to the readiness and willingness of the appellants can be safely drawn. In this case, the mere fact that the appellants deposited the amount pursuant to the direction issued by this court during the pendency of the suit is a clear proof for their readiness and willingness.

23.The mistake on the part of the learned Judge is the total misconception of the fact due to the clubbing of the intention of the parties along with the redemption suit filed by the first respondent. Hence the reasoning of the learned Judge to negative the relief of specific performance in favour of the appellants cannot be sustained, especially when the appellants established that they are ready and willing to perform their part of the agreement. Accordingly we find these issues in favour of the appellants.

22.Issue No.4:So far as the application of Order 2 C.P.C is concerned, it may be pertinent to note that the appellants filed the suit O.S.6584 of 1978 on the file of the City Civil Court, Chennai seeking for a decree of injunction restraining the respondents herein from further encumbering by way of lease, mortgage, sale etc, the house, ground and premises No.14,Narayana Mudali Street, Madras 1, the suit property. As stated already, the necessity for filing the suit by the appellants arose, as the respondents were making efforts to enter into the long term lease agreement with other three tenants in the premises. Though the appellants are also the tenants in the said premises, the respondents did not offer such terms to the appellants in view of the suit agreement to purchase the property. Having agreed to sell the property, the respondents, on the very next day of the expiry of the date stipulated in the suit agreement, entered into the long term lease with the existing tenants and raised the funds. Though it may be the case of the respondents that they have discharged the mortgage debt, as discussed by us earlier, the respondents did not make any request to the appellants for such financial assistance. Further the sale consideration is lower than the mortgage debt and as such there is no point in the appellants discharging the mortgage debt also. In such circumstance, the appellants were forced to file the suit for bare injunction. In the said suit, the respondents filed the written statement, taking a plea that the appellants committed breach of the terms of the agreement by not discharging the mortgage debt. Consequently the appellants were forced to file the present suit for specific performance.

23.Though in the suit for injunction the cause of action mentioned about the agreement entered into between the parties, it is the cause for the appellants to enforce their right to claim an order of injunction in O.S.6584 of 1978. At the same time, the cause of action for filing the suit is the conduct of the respondents in entering into the long term lease. But whereas the cause of action for the present suit is the refusal on the part of the respondents to execute the sale deed putting forth the plea that the appellants had failed to discharge their obligation under the suit agreement. Generally stated, cause of action means every fact which is necessary to establish, to support a right or obtain judgment. Another shade of meaning is that a cause of action means every fact which will be necessary for the plaintiff to prove. Cause of action for the purpose of Order 2 Rule 2 C.P.C means all the essential facts constituting the right and its infringement.

24.In the case reported in State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, the Apex Court has held as follows:

"Both the principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of AIR 1949 78 (Privy Council) , the Privy Council laid down the tests for determining whether Order 2, Rule 2 of the Code would apply in a particular situation. The first of test is, "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit". If the answer is in the affirmative, the rule will not apply. This decision has been subsequently affirmed by two decisions of the Apex Court in Kewal Singh Vs. Smt. Lajwanti, and in Shri Inacio Martins, Deceased through LRs. Vs. Narayan Hari Naik and others,

25.Yet another case in M/s. Bengal Waterproof Limited Vs. M/s. Bombay Waterproof Manufacturing Company and Another, the Supreme Court has held as follows:

"The plaintiff has suffered loss which cannot be easily assessed and would suffer further loss and damage unless the defendants, were restrained from further infringing the said trade mark DUCK BACK by the use of the mark DACK BACK or any other near resemblance or colourable imitation of the plaintiffs mark DUCK BACK or from passing off in anyway goods in Class 25 not being those of the plaintiff by the use of the mark DACK BACK or otherwise as the goods of the plaintiff.

The cause of action arose on or about 6.4.1982 and continues to arise de die in diem within the jurisdiction of this Honble Court. Thus the suit is within limitation.

The cause of action arose at Hyderabad where the defendants are indulging in the illegal actions sought to be restrained in the suit and also where the defendants reside. Thus, the Honble Court has got jurisdiction."

The aforesaid averments in the plaint clearly show that the present suit is not based on the same cause of action on which the earlier suit was based. The cause of action for filing this present second suit is the continuous and recurring infringement of plaintiffs trade mark by the defendants continuously till the filing of the present second suit."

26.There is, however, a distinction between cause of action and the right of action. These terms are not synonymous and interchangeable. A right of action is a right to presently enforce a cause of action a remedial right affording redress for the infringement of a legal right belonging to some definite person; a cause of action is the operative facts which give rise to such right of action. The right of action does not arise until the performance of all conditions precedent to the action, and may be taken away by the running of the statute of limitations, through an estoppel, or by other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause.

27.From the above principle, it is clear that where the new suit is founded upon a cause of action distinct from that which was the foundation for the former suit, then Order 2 Rule 2 C.P.C has no application. When the earlier suit O.S.6584 of 1978 is on the basis of the action of the respondents entering into the long term lease, which formed the cause for filing the suit for injunction, the said cause of action cannot be said to be one and the same for the present suit which is for specific performance. As stated already, since the appellant has got sufficient time to perform his part of the contract and as there was no denial on the part of the respondents enabling the appellants to approach the court, it cannot be said that the appellants had relinquished their claim for the specific performance on their failure to include the said relief in O.S.6584 of 1976. The learned Judge, merely referred to the averments made in both the plaints giving out the cause of action and since both are almost in verbatim the same, has concluded that the present suit is barred under Order 2 Rule 2 C.P.C which cannot be accepted. In order to find out the maintainability of the suit, on the principles of Order 2 Rule 2 C.P.C one has to consider the necessary fact which give rise the cause of action of the earlier suit and not the mere right to file the suit. It is necessary to keep in mind that the term cause of action for the purpose of Order 2 Rule 2 C.P.C means the cause of action which gives occasion for and forms the foundation of the suit. There is a distinction between cause of action and right of action.

28.Order 2 C.P.C can be made applicable only if the earlier suit was disposed of and thereafter a fresh suit is being filed with the same cause of action for fresh relief. When the present suit has been filed during the pendency of the earlier suit, in our view, the provision of Order 2 Rule 2 C.P.C is not attracted. It is also the fact that the present relief of specific performance was not within the jurisdiction of the court in which earlier suit was pending.

29.In our considered view, the facts of the case on hand do not attract the provision of Order 2 Rule 2 C.P.C and accordingly we are unable to agree with the view expressed by the learned Judge. Hence we find this issue also in favour of the appellants.

30.In the result, the judgment and decree of the learned Judge in C.S.No.509 of 1979 are set aside and the appeal is allowed. The suit is decreed. The appellants are directed to deposit the balance of sale consideration with interest at 6% p.a from the date of the suit within four weeks from today. Considering the fact that the respondents are already in difficulty in discharging the debt, the parties are directed to bear their respective costs throughout.