JUDGEMENT

This miscellaneous appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, is filed by the appellant (hereinafter referred as “plaintiff”) being aggrieved of the order dated 19/6/2023 passed by the learned XIXth District Judge, Jabalpur in RCSA No.320/2019 (Pushpendra Singh Yadav s. Smt. Shobhana Singh and another), whereby application under Section 151 read with Order 39 rule 1 and 2 CPC filed by the plaintiff has been dismissed.

2. The facts necessary for disposal of the present appeal in brief are that the plaintiff has filed suit for specific performance of the specific performance of contract dated 27/2/2015 along with an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure seeking permanent injunction against the respondent (hereinafter referred as “defendant”) not to create third party right during the pendency of the Civil Suit. It is averred in the plaint that defendant No.1 and her elder sister Smt. Geeta Yadav are the owner and possessor of agricultural land bearing Khasra No. 88 area 13.31 hectare (hereinafter referred to as “suit land”). The suit land is recorded in the name of the defendant no. 1 and her elder sister Smt.Geeta Yadav. Defendant No. 1 expressed her desire to sell the suit land and it was assured by defendant No.1 that she is authorized by her sister to enter into negotiation for the sale of land. Thereafter, plaintiff and defendant No.1entered into an agreement on 27/02/2015 that the suit land will be sold at rate of Rs 23,00,000/- per acre. The plaintiff has given two cheques of Rs. 20,00,000/- each and Rs. 10,00,000/- in cash. But thereafter, one Cheque No. 2048490 was issued in the name of the Daya Yadav as name of the defendant No.1 before marriage was Daya Yadav. The defendant No.1 was agreed that she is receiving the money for herself and on behalf of her sister, remaining amount is agreed to be paid in installments but after some time, it is intimated by defendant no.1 that Smt. Geeta Yadav is not willing to sell her portion in the suit land. But she assured that when Smt Geeta Yadav will Come to Jabalpur the land will be partitioned and she will sell her share to the plaintiff. In February 2019, plaintiff came to know that the defendant No. 1 and her elder sister is trying to alienate the property to third party. Therefore, plaintiff while seeking the specific performance of the contract seeks relief of permanent injunction against the defendant No.1 to not to alienate her share in suit land to third party. 3. Defendant No.1 denied the averment in the plaint and has denied the execution of the agreement itself. It was pleaded that in year 2015, she has got cardiac surgery and was in need of money, plaintiff has given 20,00,000/- for said purpose which she had returned in installments. It was also pleaded that the suit is time barred and the agreement is uncertain and cannot be specifically enforced.

4. Learned trial Court vide order dated 19/6/2023 has dismissed the application of plaintiff under Order 39 Rule 1 and 2 of CPC and held that the prima facie case and balance of convenience is not in favor of the plaintiff and the plaintiff will not suffer irreparable loss, if the required injunction is not issued in his favour.

5. This miscellaneous appeal has been filed by the plaintiff on the ground that the finding of the learned trial Court is perverse. The plaintiff has proved her case. Prima facie the signature of defendant No.1 on the agreement dated 27/2/2015 and signature on her written statement and Vakalatnama are same. Therefore, it cannot be said that the agreement is forged and fabricated. If the third party rights are created during the pendency of civil suit, that will result in multiplicity of the suits and the very purpose of filing the suit would be frustrated. The plaintiff is ready and willing to perform his part of contract, therefore, it is requested to set aside the impugned order and to the