1 05-sa 15.2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 15 OF 2022 ( Moreshwar s/o Mahadeo Thombre vs. Rajendra s/o Kisanji Rawate and others ) Office Notes, Office Memorandum of Coram, appearances, Court's orders or the directions, Court's or Judge's order and Registrar's orders. Mr. S.U.Bhuyar, Advocate for appellant. Mr. U.K.Bisen, Advocate for respondent No.1. CORAM : ROHIT W. JOSHI, J. DATED : MARCH 18, 2026 1) The present appeal arises out of judgment and decree dated 18/06/2020 passed by the learned District Judge-1 Bhandara in R.C.A.No.62/2017, whereby the learned District Judge has modified the judgment and decree dated 17/09/2016, passed by the learned Joint Civil Judge Senior Division, Bhandara in Spl.C.S.No.57/2010. Learned first appellate Court has granted a decree for specific performance of contract in place a decree for refund of sale consideration passed by the learned trial Court. The present appeal is filed by the original defendant No.1. The respondent No.1 is the original plaintiff. Parties will hereinafter be referred to as plaintiff and defendants. 2) The plaintiff and defendant No.1 had entered into an agreement of sale dated 25/02/2009 for purchase of the suit property which is an agricultural land admeasuring around 2 hectare for a consideration of Rs.11,50,000/-. The sale deed was to be executed till May, 2009 in terms of the said agreement. On 30/05/2009, the plaintiff and defendant No.1 entered into subsequent agreement for extension of time inter alia agreeing for extension of time to complete the sale transaction till August, KOLHE 2026:BHC-NAG:4574 2 05-sa 15.2022.odt 2010. The plaintiff has paid a sum of Rs.5,75,000/- to the defendants in terms of the agreement of sale dated 25/02/2009. 3) Since the sale transaction could not be completed, the plaintiff filed suit for specific performance of contract. The learned trial Court, has recorded that the plaintiff had proved the agreement and had also established his readiness and willingness. However, having regard to the fact that after filing the suit the defendant No.1 has sold the suit property to the defendants No.2 and 3, the learned trial Court deemed it appropriate to grant a decree for refund of consideration paid by the plaintiff to the defendant No.1 instead of a decree for specific performance of contract. Being aggrieved by the said decree by which relief of specific performance of contract was refused, the plaintiff preferred aforesaid appeal. 4) The learned first appellate Court has held that since the plaintiff had established the fact that he had entered into agreement of sale with respect to the suit property with defendant No.1 and had also established his readiness and willingness, decree for specific performance of contract was required to be passed in favour of the plaintiff. Accordingly, decree for specific performance of contract was passed instead of decree for refund of sale consideration. 5) The defendant No.1 has assailed the aforesaid decree for specific performance of contract. The defendants No.2 and 3 who are the lis pendens purchasers have not challenged the decree. The contention of learned counsel for the appellant/defendant No.1 is that the subsequent agreement for extension of time is disputed by the defendant No.1 and although the agreement was initially only marked as ‘Article-C’ at the time of delivery of judgment the learned trial Court has KOLHE 3 05-sa 15.2022.odt erroneously considered the document to be proved and marked it as ‘Exh.38-A’. Learned counsel contends that the extension agreement is not proved and therefore, decree for specific performance of contract cannot be sustained. 6) Per contra, learned counsel for respondent No.1 plaintiff, points out that the defendants have not conducted cross-examination of the plaintiff and that the entire evidence of plaintiff has gone unchallenged. The learned counsel for the defendant No.1 draws attention to the examination-in-chief of the plaintiff where the plaintiff has specifically deposed about the agreement of extension of time and has also identified signatures of parties on the said document. 7) In the considered opinion of this Court, the learned trial Court did not commit any error in placing reliance on agreement of extension. The agreement of extension ought to have been marked as exhibit during the examination-in-chief of the plaintiff. There was no reason for marking the document as an ‘Article’. The plaintiff who is a party to the document has deposed about due execution of the said document and also about the contents thereof, by stating that the parties had agreed to extend the time for execution of sale deed as per the said agreement. The learned trial Court has rightly corrected the error which was committed while recording examination-in-chief. 8) The learned trial Court has refused to pass decree for specific performance of contract on the ground that the defendant No.1 had sold the suit property to defendants No.2 and 3 after filing of the suit and therefore, granting a decree for specific performance of contract would result in multiplicity of litigation. I am afraid, the reason for not granting a decree of specific performance of contract is completely irrelevant. A lis KOLHE 4 05-sa 15.2022.odt pendens transferee is bound by the outcome of the suit, even if he is not aware of the filing or pendency of the suit. If lis pendens transfers are taken into consideration for exercising discretion in order to refuse to grant specific performance of contract, the defendants would, with impunity, sell the suit property during the pendency of the suit, in order to defeat the plaintiff’s claim for specific performance. The learned first appellate Court has rightly dealt with the matter and has granted a decree for specific performance of contract in favour of plaintiff. 9) The second appeal does not give rise to any substantial question of law and is dismissed accordingly with no order as to costs. ( ROHIT W. JOSHI, J. ) KOLHE