Mere delay in filing a suit for specific performance of a contract for sale of immovable property is not sufficient to justify the refusal of specific performance, unless the delay amounts to waiver or abandonment of the plaintiff's claim or causes hardship or prejudice to the defendant.

JUDGMENT :- This is an appeal by defendant Faujmal from the appellate Judgment and decree of the learned Civil Judge of Udaipur dated April 6, 1959, confirming the judgment and decree of the learned Munsif of Rajasthan dated April 28, 1958, in a suit for specific performance of a contract for sale of immoveable property.

2. Nathulal (defendant No. 1) mortgaged his two shops situated in village Jilola to the plaintiff and one other person on Baisakh bad 7, Sin. 2001 for Rs. 1100/- and this fact is not disputed. The plaintiff claimed that Nathulal entered into a contract to sell one of the shops to him for Rs. 300 and executed agreement Ex. 1 to that effect on February 6, 1955. It was also the plaintiff's CUSF that he was all along prepared to pay Rs. 300/- and have the sale deed executed in his favour but Nathulal avoided doing so and ultimately executed a sale deed of the suit shop in favour of Ranglal (defendant No. 2) on July 11, 1957. This is way the plaintiff instituted his suit on July 25, 1957, soon after the disputed sale, for specific performance of the contract in his favour.

3. Defendant Nathulal denied that he entered into a contract for the sale of the shop to the plaintiff and pleaded that Ex. 1 was a forged document. The other defendant Ranglal pleaded that he had purchased the property for Rs. 1951/- without knowledge of any contract of sale in the plain tiffs favour. He did not admit that there was an earlier agreement for the sale of the property to the plaintiff. Some other pleas were taken in the written statement which are not material.

4. One of the important points at issue between the parties was whether agreement Ex. 1, on which the plaintiff based his claim for specific performance, was genuine. Both the courts below reached the conclusion that the plaintiff had succeeded in proving the agreement. It was also held in those courts that the plaintiff was always ready and willing to perform his part to the on tract and that it was defendant Nathulal who was guilty of a breach thereof. So also, both the courts took the view that the shop was purchased by defendant Ranglal with knowledge of the earlier contract for its sale in favour of the plaintiff. The learned Munsiff, however, did not grant a decree for specific performance on the ground that there was delay on the part of the plaintiff in applying for the sale of the property and he granted a degree only for Rs. 100/- by way of damages against defendant Ranglal. Defendant Nathulal was directed to pay the costs of the plaintiff.

The plaintiff preferred an appeal, and 'he defendant a cross-objection, but both of them were dismissed by the learned Judge of the lower appellate court by the impugned judgment as he was also of the view that the relief of specific performance had rightly been rejected on account of the delay. In reaching that conclusion, the learned Judge look into consideration the facts that the property had already been transferred to a third person for a higher price and that it would l»ad to multiplicity of proceedings if a decree was passed for specific performance. It is in these circumstances that the present appeal has arisen.

5. It has been argued by Mr. K.S. Lodha, learned counsel for the plaintiff-appellant, that an illegality has been committed by both the courts below in failing to apply or appreciate the provisions of Section 12 of the Specific Relief Act hereafter referred to as the Act. and in denying the relief of specific performance to the plaintiff when the agreement was for sale of immovable property, ft has been pointed out that the disputed sale .in favour of defendant Ranglal was made on July 25, 1957 and the plaintiff instituted the suit soon liter on July 25, 1957, without any delay. Further, the learned counsel has argued that delay could not. by itself, be a reason for denying the relief to the plaintiff when then? was nothing to show that it amounted to waiver or abandonment of the plaintiff's claim. For this