JUDGMENT

Sanjay Dwivedi. J. - By the instant appeal filed under Section 96 of the Code of Civil Procedure, the appellant/defendant is challenging the judgment and decree dated 14.02.2018 passed in Civil Suit No.12-A/2015 by Third Additional District Judge, Jabalpur which was preferred by respondent No.1/plaintiff for specific performance of contract.

2. The facts leading to the present appeal in brief are that the defendant/appellant executed an agreement to sale in favour of the plaintiff/respondent No.1 on 19.07.2011 in respect of the land situated over Mouza Gurda Har Khajari, Bandobast No.600, Patwari Halka No.20, Block Maharajpur, Tahsil and District Jabalpur, agriculture land survey No.38/8 area measuring 4600 square feet and survey No.38/18 area measuring 4450 square feet total area 9050 square feet.

At the time of execution of the agreement to sale (Ex.P/1), an amount of Rs.10,00,000/- was paid in advance by respondent No.1 to the appellant out of total sale consideration of Rs.25,00,000/-. As per the agreement, the remaining amount i.e. Rs.15,00,000/- had to be paid by respondent No.1 to the present appellant within the period of three months from the date of agreement and thereafter, the present appellant would execute the sale-deed in favour of respondent No.1. In the said agreement, it was also mentioned that before getting the sale-deed registered, the appellant would get the land demarcated at his own expenses and the document in respect of the same would be made available to respondent No.1. According to the terms and conditions of the agreement to sale (Ex.P/1), the appellant was required to get the land demarcated till first week of August, 2011 and further to get the sale-deed executed in favour of respondent No.1.

3. As per respondent No.1, in the month of August, 2011, he requested the appellant to get the land demarcated and then to get the sale-deed executed in his favour but he did not do so. As per respondent No.1, he repeatedly asked the appellant to get the land demarcated so that the sale-deed could be executed but the appellant was delaying the matter for one or the another reason. Thereafter, respondent No.1 sent a notice on 24.10.2011 to the present appellant but the same was neither replied nor the sale-deed got executed in favour of respondent No.1.

4. Thereafter, a suit was filed by the plaintiff/respondent No.1 seeking a decree of specific performance of the contract mentioning in the plaint that the cause of action arose on 19.07.2011 when the agreement to sale got executed and thereafter, on 24.10.2011, despite issuance of notice to the defendant/appellant he did not appear in the suit then ex parte decree dated 26.06.2012 was passed against the defendant/appellant and in pursuance to the said ex parte decree, the sale-deed got executed by the Court- below and the possession over the disputed land was also handed over to the decree holder/respondent No.1. However, the said ex parte decree dated 26.06.2012 was set-aside by the Court-below vide order dated 31.01.2014 on an application moved by the present appellant filed under Order IX Rule 13 of the Code of Civil Procedure but in the meantime, an execution proceeding initiated by respondent No.1 in which the sale-deed got executed by the Court-below in favour of respondent No.1 and he was also put in possession over the disputed land.

5. However, after setting-aside the ex parte decree, written statement was filed by the defendant/appellant mentioning therein that the plaintiff/respondent No.1 has never shown any readiness and willingness on his part. It is also stated in the written statement that as per the terms of the contract, the remaining amount of Rs.15,00,000/- was to be paid by the plaintiff to the defendant within the period of three months from the date of agreement, as such the time was the essence of the contract but remaining amount of Rs.15,00,000/- was not paid by the plaintiff within the aforesaid period, therefore, the suit