- (1.) THE present appeal has been filed by the appellant-original plaintiff challenging the order dated 24.7.2009, passed by the Additional District Judge No. 1, Ajmer, in Civil Misc. Application No. 79/08, filed by the appellant under Or. XXXIX R. 1 & 2 of C.P.C. whereby the Trial Court has dismissed the application of the appellant-plaintiff.
(2.) THE short facts giving rise to the present appeal are that the appellant plaintiff has filed the suit before the Trial Court seeking specific performance of the agreement dated 15.7.1999, executed by respondent-defendant in -favour of the appellant-plaintiff in respect of the suit property. As per the case of the appellant-plaintiff, the said suit property was agreed to be sold for Rs.5 lacs,out of which the appellant had paid Rs.1 lac and the balance amount was to be paid within six months, however, the appellant-plaintiff did not pay the said amount as there was litigation pending between the respondent defendant and others as regards the Khatedari rights of the respondent-defendant. THE appellant plaintiff thereafter filed the suit seeking specific performance of the said agreement in the year 2008 and also filed application seeking temporary injunction under Or. XXXIX R.1and 2 of C.P.C. THE said application has been dismissed by the Trial Court, against which the appellant has preferred the present appeal under Or. XXXIX R. 1 and 2 of C.P.C. It has been sought to be submitted by learned Sr. Counsel Mr. Maloo for the appellant plaintiff that time is not the essence of the contract in case of specific performance of an agreement pertaining to immovable property. He also submitted that the litigation was pending between the respondent and one Smt. Kaushilya and others regarding the Khatedari rights of the respondent- defendant and since the name of the respondent was not entered into the revenue record as owner, the appellant had not paid the balance amount. According to him, since the respondent was contemplating to sell the said property to third party, the suit has been filed. Mr.Maloo also submitted that the respondent be injuncted from selling or transferring the said property to any third party pending the suit, otherwise it will lead to multiplicity of proceedings. As against that, learned counsel Ms. Ashish Joshi, for the respondent has submitted that the appellant-plaintiff, had not shown his readiness and willingness to perform his part of contract for more than nine years and that there was no condition mentioned in the agreement in question that the appellant had to pay the balance amount only if the name of the respondent was entered into the revenue record as the owner. According to her, there being no illegality or infirmity in the impugned order passed by the Trial Court, the appeal deserves to be dismissed. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the Trial Court, it transpires that the agreement dated 15.7.1999, entered into between the parties has been sought to be specifically performed in the suit filed in the year 2008. It has been alleged by the appellant-plaintiff that he had paid Rs. one lac towards the sale-consideration and as per the agreement he had to pay remaining amount of Rs.4 lacs within six months, however, there being litigation pending between the respondent-defendant and others, his name was not entered as the owner in the revenue record and therefore, he had not paid the balance amount. There can not be any disagreement with the legal position settled by the Apex Court to the effect that time is not the essence of the contract in case of specific performance pertaining to immovable property, however, it is pertinent to note that the party seeking specific performance of the agreement is required to show his readiness and willingness to perform his part of contract within the reasonable time limit. In the instant case, the appellant plaintiff has filed the suit about nine years after the execution of the alleged agreement. There is nothing on record to suggest that he had shown his willingness to pay the balance amount in this period of nine years. Though it was sought to be submitted that since the name of the respondent defendant was not entered into the revenue record as the owner, the appellant plaintiff had not paid the balance amount, however, the position as existed in the year 1999 at the time of execution of the agreement had not changed till the filing of the suit in the year 2008 in as much as on the date of filing of the suit also the name of the respondent defendant was not mutated as owner in respect of the land in question. The Trial Court has rightly observed that there was also no such condition that the appellant plaintiff had to pay the balance amount only if the dispute with regard to the Khatedari rights of the respondent defendant was settled and only when his name was mutated as the owner in the revenue record. The Trial Court after having considered the three factors namely, prima facie case, balance of convenience and irreparable loss, has rightly dismissed the application of the appellant plaintiff by the impugned order, which does not call for any interference of this Court in the present appeal. It is needless to say that if ultimately the appellant plaintiff succeeds in the suit, he could be compensated in terms of money and the respondent defendant could be directed to pay the amount received by him under the agreement with interest. In that view of the matter, there being no substance in the present appeal, the appeal is dismissed. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. ;