IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA rd ON THE 3 OF JULY, 2023 MISC. APPEAL No. 1438 of 2014 BETWEEN:-

1. NITIN LALCHANDANI S/O SHRI CHANDAR LALCHANDANI, AGED ABOUT 30 YEARS, 25/2, HAPPY TOWER, IDAGAH HILLS, BHOPAL (MADHYA PRADESH)

2. SMT MAYA LALCHANDANI W/O SHRI CHANDER LALCHANDANI, AGED ABOUT 55 YEARS, 25/2 HAPPY TOWER IDGAH HILLS BHOPAL (MADHYA PRADESH)

.....APPELLANTS (BY SHRI ASHOK LALWANI - ADVOCATE )

AND

1. HARIMOHAN GUPTA S/O LATE SHRI GURUDEV GUPTA, AGED ABOUT 57 YEARS, B-22, 74 BUNGALOW, NISHATPURA, BHOPAL (MADHYA PRADESH)

2. STATE OF MADHYA PRADESH THROUGH DISTRICT COLLECTOR, OLD SECRETARIATE, BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (SHRI PUSHPENDRA YADAV - ADVOCATE FOR RESPONDENT NO.1 AND SHRI ADITYA CHOUBEY - GOVERNMENT ADVOCATE FOR RESPONDENT NO.2 / STATE )

This appeal coming on for admission this day, the court passed the following:

ORDER

With the consent of both the parties, the matter is heard finally.

IA No.4042/2023 filed by the appellants for taking the documents on Signature Not Verified Signed by: JITENDRA record is allowed and the documents are taken on record.

2. The present miscellaneous appeal has been filed by the appellants / defendants no. 1 and 2 against the order dated 16.05.2014 passed in RCS No.1066-A/2012 by learned Sixth Additional District Judge, Bhopal. By the said order, an application under Order 39 Rule 1 and 2 of Civil Procedure Code filed by the respondent no.1 / plaintiff has been allowed.

3. The brief facts leading to the present appeal are that the respondent no.1 / plaintiff filed a suit for specific performance of an unregistered agreement dated 7.1.2008 and for permanent injunction in the year 2012 in respect of land situated in khasra no.78/1 ad-measuring 25 acres unmarked land out of 36 acres in village Chandanpura, PH No.40, Tahsil Huzur, District Bhopal which was jointly owned and possessed by the appellants. At the time of agreement, the suit land was under litigation wherein a civil dispute in respect of the suit land was filed by a society viz, M/s. Betwa Grih Nirman Sahakari Samiti on the basis of an alleged photocopy sale agreement dated 16.08.1988 and civil proceedings were filed in different courts by the concerned society. At the time of execution of the agreement dated 7.1.2008 the litigation was pending before the Hon’ble High Court, Jabalpur. In para 3 of the aforesaid agreement it was specifically recorded and mentioned that despite pendency of litigation the plaintiff / respondent no.1 is ready and willing to purchase the 25 acres unmarked of land out of 36 acres of land and accordingly, in the agreement the terms and conditions were settled and mentioned in detail.

4. As per the agreement, the sale deed was required to be executed within a fixed period of two months from the date of judgment by the Hon’ble Apex court upon paying the sale price of the land at the cost of respondent no.1 and the concerned conditions also prescribed that in case the sale deed is not Signature Not Verified Signed by: JITENDRA executed within a period of two months, the contract will stand cancelled and in view of the fact that the Hon’ble Supreme Court passed order on 9.2.2009 the respondent was bound to get the sale deed executed on or before 9.4.2009 which apparently respondent no.1 failed and as a result, the agreement stood expired lapsed after 9.4.2009 and therefore, in the absence of enforceable contract the suit is not maintainable. It has been also averred that the appellants though were not under an obligation to return the sale advance but even then acting bona-fidely the appellants returned the advance amount to the respondents via Cheque of City Bank, Bhopal through registered post. The respondent no. 1 despite receipt whereof has not presented the cheque for encashment with oblique and ulterior motive.

5. During the pendency of the suit afterthought an application under Order 39 Rule 1 and 2 C.P.C. was filed alleging and conte