In a contract for sale of immovable property, time is not presumed to be the essence of the contract unless such presumption is rebutted.

1. - The instant first appeal arises out of the judgment and decree dated 7/5/1997 passed by the Additional District Judge No.4, Jaipur City, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No.85 of 1990, whereby the Trial Court had dismissed the suit filed by the appellant - plaintiff, seeking specific performance of the contract and permanent injunction against the respondents - defendants, however held that the appellant/plaintiff would be entitled to recover Rs. 60,000/- with interest at the rate of 18% per annum from 21/8/1980 till realisation from the respondents - defendants.

2. The short facts, giving rise to the present appeal, are that the appellant - plaintiff had filed the suit before the Trial Court on 30/4/1983, seeking specific performance of the agreement dated 21/2/1980, in respect of the suit plot bearing No.B-10, admeasuring 388.88 sq. yards situated at Sethi Nagar, Jaipur alleging inter-alia that the respondents-defendants had agreed to sell the said plot to the appellant for Rs. 1,26,425/- by executing the agreement dated 21/2/1980. It was further alleged that prior to the execution of the said agreement, the appellant plaintiff had already paid Rs. 30,000/- by way of demand draft on 18/12/1979 as an advance money. As per the terms of the agreement, the appellant-plaintiff was required to make further payment of Rs. 30,000/- within six months of the execution of the agreement or within 15 days of the completion of the construction of the roof over the basement portion, which was to be constructed by the respondents-defendants after getting the site plan approved from the U.I.T. It was also agreed between the parties that the cost of the construction was to be borne by the appellant. As per the case of the appellant-plaintiff, the appellant, in compliance with the terms of the said agreement, further paid a sum of Rs. 30,000/- by demand draft on 20/8/1980, however, the respondents did not perform their part of the contract, and did not get the plan sanctioned from U.I.T., nor put up construction of basement, nor obtained patta from U.I.T. and NOC from the Income Tax Department. The appellant-plaintiff therefore called upon the respondents to comply with the terms of the agreement and execute the sale deed in her favour by serving notice dated 22/8/1981, however, the respondents did not give any reply to the said notice. According to the appellant, she again served another notice by registered post through her counsel on 14/3/1983, informing the respondents that she had already prepared the demand drafts of the balance amount to be paid to them for execution of the sale deed and calling upon them to execute the sale deed in her favour, however, the respondents did not respond to the said notice also. The appellant-plaintiff therefore had filed the suit seeking specific performance of the said agreement and permanent injunction in respect of the plot in question.

3. The said suit was resisted by the respondents-defendants by filing the written-statement however, while denying the allegations and averments made in the plaint, the respondents had admitted the execution of the agreement in question. According to the respondents-defendants, the approved site plan was handed over to the appellant on 8/12/1980, however, the appellant did not pay any amount towards construction nor had she started the construction. It was further contended that time was the essence of contract, and hence the agreement itself had stood cancelled and the earnest money had also stood forfeited. The respondents-defendants had subsequently amended the written-statement by incorporating certain new contentions inter-alia that a decree for partition in respect of the plot in question was passed by the District Court on 10/2/1987 in Civil Suit No.1185 of 86, filed by Smt. Anjalipuri, daughter of the respondent No.1, and that as per the said decree, she was entitled to ⅓rd share in the plot in question. The appella