IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH ON THE 15^th OF JULY, 2024 FIRST APPEAL No. 310 of 2022 BHUPESH Versus ARVIND KUMAR SHAH AND OTHERS Appearance:

(SHRI POURUSH RANKA, LEARNED COUNSEL FOR THE APPELLANT). (SHRI H.Y. MEHTA, LEARNED COUNSEL FOR THE RESPONDENTSNO.1 & 2).

ORDER

The appellant/plaintiff has filed this appeal being aggrieved by the judgment and decree dated 01.11.2021 passed by the learned 5^th District Judge Ujjain in civil suit no.169A/2021 by which the application filed by the defendants under Order 7 Rule 11 r/w section 151 CPC has been allowed and the plaint which was filed by Signature Not Verified Signed by: HARIKUMAR the plaintiff/appellant for specific performance of contract and permanent injunction has been rejected.

2. The brief facts of the case are that appellant/plaintiff has entered into an agreement to sell on 23.2.2021 for a sale consideration of Rs.1,03,00,000/- and has paid a sum of Rs.1,51,000/- as part payment of the sale consideration for the land bearing survey no.428/3, area 0.282 hectare of Patwari Halka no.26, village Panth Piplai, Tehsil and district Ujjain. The copy of the Sauda Chithi entered into between the appellant and the defendants is Annexure A/2.

3. As per the terms of the agreement between the parties, the seller was required to make a paper publication with regard to sale of the said land and in case of non receipt of any objection the purchaser will pay 25% of the agreed sale consideration. Accordingly paper publication was made in the daily newspaper Agniban on 27.3.2021 and no objection was received. Thereafter the plaintiff appellant requested the defendants to accept the sale consideration of 25% of the total sale consideration but the defendant was not responding to his request. Thereafter the appellant/plaintiff sent a legal notice through his counsel on 12.4.2021 requesting the defendants to accept the amount of 25% as agreed in the agreement dated 23.03.2021. The notice is Annexure A/3. The defendants on receipt of the notice from the appellant/plaintiff sent a reply dated 17.04.2021 through their counsel by accepting the agreement but has alleged that the terms of the agreement have not been complied with which has resulted into automatic cancelation of the agreement. The reply is Annexure A/4.

Signature Not Verified Signed by: HARIKUMAR Thereafter the appellant/plaintiff filed a civil suit for specific performance. The copy of the plaint is Annexure A/5.

4. The defendants filed their written statement and accepted the part payment of Rs.1,51,000/- from the plaintiff but has alleged that plaintiff to take the said amount back but the plaintiff never received that amount from the defendants and further the plaintiff has not complied with the terms of making payment of 25% of the total sale consideration within 20 days from the date of execution of sauda chithi. The copy of the written statement is Annexure A/6. Thereafter the defendant/respondent filed an application under Order 7 Rule 11 r/w section 151 CPC on the ground that the sauda chithi does not disclose the survey no.248/3 of the property and also the name of village where the said land is located and the present suit is filed for land bearing survey no.428/3 of village Panchpiplai, tehsil and district Ujjain whereas no agreement with regard to purchase of said survey no.428/3 is filed with the plaint and also the sauda chithi filed is not duly stamped and hence in such circumstances the sauda chithi cannot be said to be an agreement and hence the suit filed by the plaintiff deserves to be dismissed. The application is Annexure A/7.

5. The plaintiff/appellant filed a detailed reply of the application and submitted that it is an agreement to sell which was accepted by the respondents in reply Annexure A/5.

6. After hearing counsel for both parties, the trial court vide order dated 01.11.2021 has allowed the application of the defendants and rejected the plaint filed by the plai