RAJENDRA PRASAD MISHRA Vs. MOOLI DEVI MEENA

JUDGEMENT

(1.) THE present appeal is directed against the order dt. 28.05.2008 passed by the Additional District Judge (Fast Track) No. 9, Jaipur City, Jaipur (hereinafter referred to as "the trial Court") in Civil Misc. Application No. 14/2008, by which the trial Court has dismissed the said application of the appellant -plaintiff filed under Order XXXIX Rule 1 & 2 of C.P.C., seeking temporary injunction in respect of the suit plot. In the instant case, it appears that the appellant -plaintiff has filed the suit against the respondent -defendant seeking specific performance of the agreement dt. 08.04.2005 in respect of the plot in question. According to the appellant, he had paid Rs. 2,80,000/ - out of the total consideration of Rs. 9,74,000/ - in respect of the plot in question and that he had also given notice on 04.08.2005 showing his readiness and willingness to pay the balance amount of consideration, however the respondent did not execute the sale deed in favour of the appellant. It is also the case of the appellant that the appellant had given a public notice in the newspaper on 14.08.2005 in respect of the agreement in question and subsequently had also given another notice on 12.03.2008 served upon the respondent to execute the sale deed, however the respondent did not pay any head to the said notice, and therefore, the suit has been filed. It appears that the respondent -defendant while admitting the execution of the agreement, has denied the allegation that the appellant was ready and willing to perform on part of contract. According to the respondent, the time fixed in the agreement was for three months and the time being the essence of the contract and the appellant having failed to pay the remaining amount of consideration for about 3 years, he was not entitled to any relief of specific performance or injunction in the suit. The appellant -plaintiff had also filed the application seeking temporary injunction under Order XXXIX Rule 1 & 2 of C.P.C., which has been dismissed by the trial Court vide the impugned order, against which the present appeal has been filed.

(2.) AFTER having heard the learned counsels for the parties, it appears that though the agreement in question was executed on 08.04.2005, the appellant had not shown any readiness and willingness to pay the balance of consideration to the respondent for about three years. Though, it was sought to be submitted by the learned counsel Mr. Manish Kumar Sharma for the appellant that one notice was given to the respondent on 04.08.2005, the said notice does not appear to have been produced by the appellant before the trial Court. The public notice dt. 14.08.2005 produced by the appellant does not show his willingness to pay the balance amount of consideration. It is also pertinent to note that mere issuing notice would not be sufficient to show the bona fides of the appellant that he was ready and willing to perform his part of contract. It clearly transpires that the appellant did not pay the balance of consideration for about three years and thereafter filed the suit in the year 2008 seeking specific performance of the agreement in question.