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5. Plaintiff No.1-Ramesh, the assignee, was and is still ready and willing to perform his part of the contract by paying balance consideration of Rs. 8,25,000/-. He stated that the defendant-Manohar, however, turned dishonest and avoided receiving even the first payment of Rs. 2,00,000/- which amount was tendered by him {Plaintiff No.1- Ramesh on or about 20.1.1992 to defendant-Manohar). He then stated that the plaintiffs were advised to file a suit i.e. Regular Civil Suit No. 501/1992 against the defendant-Manohar in which mandatory injunction was sought asking the defendant-Manohar to comply with the terms and conditions of the agreement dated 21.1.1991 by accepting Rs.2,00,000/- and to issue prohibitory injunction against him from dispossessing of the suit property. The Application (Exh. 5 ) for grant of temporary injunction was filed and was granted, but injunction order was reversed by the District Court in Appeal No. 302/ 1992 on 7.8.1993, with observation in paragraph 11 of the order that it was open for the plaintiffs to file suit for specific performance and claim appropriate reliefs against defendant-Manohar. The plaintiffs filed Civil Revision Application no. 794/1994 before the High Court which passed the order on 3.3.1995 accepting the request for withdrawal of sa.210.13 the Revision Application to enable the plaintiffs to make appropriate Application for withdrawal of the suit ( RCS No.501/1992), with liberty to file proper suit in appropriate and competent Court and, thus, dismissed the Revision as withdrawn. It is for this reason, the plaintiffs were constrained to file the suit for specific performance amongst other reliefs. The cause of action was stated to be on 19.8.1992 when defendant-Manohar filed written statement in RCS No. 501/1992 stating cancellation of agreement by Plaintiff No.2- Baburao himself and that it also arose on 30.1.1994 i.e. the last date of performance of the agreement. It was also stated in paragraph 11 of the Suit that the earlier RCS No. 501/1992 became infructuous and shall be withdrawn unconditionally by the plaintiff under Order 23 Rule 1 CPC.

Manohar alone was not competent to enter into agreement. He denied that he had given any consent or had any knowledge about the assignment in favour of the Plaintiff No.1-Ramesh by Plaintiff No.2 Baburao and there was no privity of contract between the Plaintiff No.1 Ramesh and defendant, and as a matter of fact, there was cancellation by both plaintiffs-Ramesh and Baburao by issuance of telegram on 22.1.1992 in which the refund of consideration of Rs. 50,000/- was asked specifically. He therefore contended that in fact the plaintiffs themselves have cancelled the contract or agreement and therefore, no right to sue survived. There was a specific denial about any tendering of amount of Rs.2,00,000/- by the plaintiff No.1-Ramesh to the defendant or even an attempt to do so. With reference to RCS No.501/1992, it was specifically stated that the present suit is barred by provisions of Order 2 Rule 2 CPC in view of the filing of RCS No. 501/1992 and the bundle of facts constituting the same cause of action and that in CRA No. 794/1994 the High Court was not inclined to entertain the Revision Application but the plaintiff withdrew the same. RCS No.501/1992 was dismissed as infructuous without any liberty reserved in favour of the plaintiffs to prosecute the instant Civil Suit and, on the contrary, the sa.210.13 plaintiffs did not turn up or to even seek liberty in that suit though the High Court allowed liberty to apply to the trial Court for leave to file a fresh suit. Nothing was done. There was no readiness and willingness on the part of the plaintiffs from their conduct nor was any money available with them. In the specific pleadings, it was stated that the plaintiffs themselves cancelled the agreement asking for refund of money and accordingly money was withdrawn from Bank of India, via Cheque No. 7642 dated 25.1.92 from the account of his wife-Karuna but then the plaintiffs avoided to receive the amount though demanded by telegram dated 22.1.1998 (Exh.68). The contract was unenforceable because the suit land was notified for being acquired vide Notification dated 16.7.1981 for Nagpur Improvement Trust and, at any rate, the suit for partition filed by Dr. Prakash, the brother was pending in the court at that time.

Surprisingly enough, according to him, when the earlier Suit i.e. RCS No. 501/1992 was called out for hearing on Application Exh. 28 for dismissal thereof, the plaintiffs did not apply for withdrawal with liberty to file another Suit and the Court held that the suit was infructuous and did not grant any leave or liberty. Therefore, subsequent suit was clearly barred by O.2 R.2, CPC. He then submitted that the suit in question was barred by law of limitation under Art. 54 of the Limitation Act. The learned lower Appellate Court committed a grave error in law in sticking to date namely 30.1.1994 despite cancellation Exh.68 made or the refusal sensed by the plaintiffs with full consciousness ignoring the limitation started running from the point of cancellation/refusal. According to him, the learned lower Appellate sa.210.13 Court also made a mistake in law in assuming that there should be refusal only in writing from the defendant and the Courts do not have power to find out whether there is a refusal or not, from the evidence on record. He submitted that the cancellation of the agreement was made by the plaintiffs themselves on 22.2.1992 under telegram-Exh. 68 and further the averments in RCS No.501/1992 themselves indicated that the plaintiffs fully understood clear refusal. Not only that, according to Mr Deshpande, the lower Appellate Court assumed that the suit for specific performance cannot be filed before the last date mentioned in the agreement despite cancellation/refusal at earlier point of time. The learned counsel for the appellants then contended that there was absolutely no readiness and willingness on the part of the plaintiffs to perform part of the contract inasmuch as no evidence of availability of money of Rs. 2 lakhs was adduced. There was also a inconsistency whether the money was actually tendered or tried to be tendered. He then contended that there was a suit filed by Dr. Prakash in respect of the very suit property and for partition separate possession that was pending in the Court and the finding recorded by the lower Appellate Court that suit filed by Dr. Prakash was fraudulent to deny the claim of the plaintiffs/respondents is nothing but a figment of imagination for which there were pleadings, issues nor any evidence on record. He then sa.210.13 cited the following decisions for consideration :-

sa.210.13 The Court thus dismissed that suit as infructuous. There was no occasion to consider any application seeking liberty to file fresh suit as the plaintiffs despite opportunities by that court chose not even to bother to contact their Advocate or go to the Court and file application. The entire bundle of facts and cause of action and the prayers in RCS No.501/1992 and the present suit will carefully show that the same facts and cause of action was pleaded but there was a deliberate and clear omission to amend their RCS No.501/1992 for specific performance of contract and/or to ask for liberty to file a fresh suit in terms of the order dated 3.3.1995. Thus, the plaintiffs did not use the liberty granted by the High Court as above. The learned lower Appellate Court, however, held that the cause of action in the earlier suit was different and therefore, O. II R.2 CPC would not apply. The decision of the Apex Court in this context on the facts of the present case is fully identical in the case of Virgo Industries ( supra). At this stage, I quote paragraph nos.3,4,6,9,10,11,12,13,14,15 and 16:-