IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SANJAY DWIVEDI th ON THE 4 OF DECEMBER, 2024 MISC. APPEAL No. 7606 of 2024 HEMRAJ SINGH PATEL AND OTHERS Versus RAKESH KUMAR CHADAR Appearance:

Shri Rohit Raghuvanshi - Advocate for the appellants. Shri Shriniwas Tiwari - Advocate for the respondent.

ORDER This Misc. Appeal has been preferred under Order 43 Rule 1(r) of CPC by the appellants challenging the impugned order dated 13.09.2024 passed by the trial Court whereby the application filed under Order 39 Rule 1 and 2 of CPC was dismissed. The trial Court has refused to grant injunction restraining the defendant/respondent to create any third party right over the property in question.

2. The plaintiffs/appellants have filed a suit for specific performance of contract.

3. Although, counsel for the respondent submits that the agreement is apparently time barred and, therefore, injunction has rightly been refused.

4. At this stage, counsel for the plaintiffs/appellants submits that looking to the fact that plaintiffs have paid the Court fee on a higher side and seeking implementation of the contract saying that if any third party right is created during pendency of the civil suit, that will create multiplicity of litigation and could also defeat the right of the plaintiffs to get the impugned contract implemented. He further submits that the Court may take a ground and even defendant can take a ground that the third party right is already created and other person has been put in possession of the property, therefore, instead of Signature Not Verified implementing the contract, the amount paid by the plaintiffs should be refunded to them. He further submits that if that situation arises, that will not serve the purpose because the very claim of the appellants would be frustrated in such a situation.

5. From perusal of the record available and also examining the order rejecting the application filed under Order 39 Rule 1 and 2 of CPC by the plaintiffs/appellants, it is clear that the trial Court has found that there was an agreement between the parties for specific performance of contract; time was not the essence of the said contract; the sale consideration of the land was Rs,4,00,00,000/- and Rs.36,00,000/- has already been paid by the plaintiffs and no reply to that extent has been filed by the defendant. The trial Court has also observed that if the defendant refused to enter into the sale, the amount paid by the plaintiffs should be returned back to them after deduction of 10% from the advance amount. Considering the said conditions, the trial Court has found that no prima facie case is made out in favour of the plaintiffs whereas this Court failed to understand as to how the trial Court reached to the conclusion that prima facie, no case is made out in favour of the plaintiffs. When agreement was subsisting; amount was paid to the defendant; suit is pending; and if the defendant is not ready to perform his part of contract; in spite of the fact that agreement has not been cancelled, then in the considered opinion of this Court, non-grant of injunction in favour of the plaintiffs, thereby creating third party right over the property is not proper.

6. The Supreme Court recently in case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and Others passed in Civil Appeal No. 13001 of 2024 has observed that in a suit for specific performance of contract, it is proper for the Court to grant injunction restraining party to create third party right over the said property. The Supreme Court has further observed that provision of Section 52 of Transfer of Property Act, 1952 is not sufficient to refuse injunction. The Supreme Court in the said case has observed as under:-

“ 44. We need not say anything as regards the subsequent transfer of the suit property at this stage for the simple reason that if it has been transferred pending any proceedings, it is for Signature Not Verified the trial court to see whether the