[2025:RJ-JP:44855] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 426/2025 Ramavtar Jat S/o Khoobram, Jat, Aged About 48 Years, R/o Village Bhajeet, Tehsil And District Alwar. ----Appellant Versus Smt. Sujata W/o Omprakash S/o Shri Vijay Singh, Aged About 43 Years, R/o Manni Ka Badh, Alwar Presently R/o 160, Dhani Naruka, Across Nala, Kanwarpura, Tehsil Amer, District Jaipur Rajasthan. ----Respondent Connected With S.B. Civil Miscellaneous Appeal No. 427/2025 Ramavtar Jat S/o Khoobram Jat, Aged About 48 Years, R/o Village Bhatjet, Tehsil And District Alwar. ----Appellant Versus Smt. Suman Chaudhary W/o Girdhari Lal D/o Shri Vijay Singh, Aged About 39 Years, R/o Manni Ka Badh, Alwar Presently R/o 160, A Dhani Naruka, Across Nala, Kanwarpura, Tehsil Amer, District Jaipur. (Rajasthan) ----Respondent S.B. Civil Miscellaneous Appeal No. 428/2025 Ramavtar Jat S/o Khoobram Jat, Aged About 48 Years, R/o Village Bhajeet, Tehsil And District Alwar. ----Appellant Versus Smt. Sushma W/o Trilok Singh D/o Vijay Singh, Aged About 49 Years, R/o Manni Ka Bad, Alwar Presently Residing At A-112, Block A, Jawahar Park, Khanpur, New Delhi-1100621 ----Respondent [2025:RJ-JP:44855] (2 of 15) [CMA-426/2025] For Appellant(s) : Mr. R.K. Agarwal, Sr. Advocate with Mr. Vaibhav Bhargava and Mr. Adhiraj Modi For Respondent(s) : Mr. A.K. Bhandari, Sr. Advocate with Mr. Mr. Rakshit Jain HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 03/07/2025 1. These three civil miscellaneous appeals are preferred aggrieved from order dated 09.01.2025 in Civil Miscellaneous Case Nos.38/2024, 39/2024 and 36/2024 passed by learned Additional District Judge No.4, Alwar under Order 39 Rule 1 and 2 read with Section 151 CPC. 2. Since these matters are connected with each other, therefore, we are deciding these matters together. 3. The facts of the case clearly indicate that appellant (plaintiff) is a common person whereas the respondent(s)/non-applicant(s) Sujata, Suman and Sushma are daughters of Vijay Singh and they are sisters having common interest in the land. The appellant in each case has filed a civil suit against the respondent (defendant). 4. The facts mentioned in the temporary injunction application clearly indicate that on 05.07.2021, an agreement was entered between present appellant and the respondent(s). Thereafter, on 19.12.2021, the same was renewed but as per allegation made by the appellant-plaintiff, the respondent(s) have not complied the conditions of renewal mentioned in subsequent agreement dated 19.12.2021. The appellant-plaintiff has served a notice on 18.05.2022 and the respondent(s) have replied the notice on [2025:RJ-JP:44855] (3 of 15) [CMA-426/2025] 27.06.2022 and denied the renewal agreement dated 19.12.2021 but agreed to execute sale deed till 31.12.2022. The appellant- plaintiff has served a notice dated 12.11.2022 but respondent(s) have not executed a sale deed in favour of the appellant-plaintiff. The facts further indicate that FIR No. 747/2022 dated 10.12.2022 under Section 420, 406 IPC was registered at PS Aravali Vihar, Alwar and the respondent(s) have filed Misc. Criminal Petition No.20/2023, before this Court. The appellant-plaintiff has visited Office of Sub-Registrar on 31.12.2022 but the respondent(s) have not turned up and not executed a sale deed in favour of the plaintiff, pursuant to agreement. The plaintiff has filed a civil suit for specific performance and during pendency of the civil suit, the plaintiff has sought temporary injunction, to protect the suit property. Learned Additional District Judge after considering the case of the parties, had dismissed the application(s) for temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of CPC in all three matters. Hence, these appeals are preferred by the appellant-plaintiff. 5. Learned Senior Advocate appearing on behalf of the appellant in all three matters submitted that the respondent(s)- defendant have admitted the agreement in para-I of the written statement, thus there is no doubt about execution of agreement between the parties. He further submitted that said agreement was neither terminated nor denied by the respondent(s)- defendants. He further referred Section 95 of the Indian Evidence Act and submitted that the Court can look beyond the agreement to understand the actual intention of the parties, particularly, when the terms of the agreement are clear and unambiguous. He [2025:RJ-JP:44855] (4 of 15) [CMA-426/2025] further referred Section 92 of the Indian Evidence Act and submitted that this Hon’ble Court can infer the intention of the parties from the conduct from subsequent circumstances. He further referred Section 16(c) of the Specific Relief Act, 1963 and submitted that the plaintiff is always ready and willing to perform his contractual duties and same is evident from the action taken by the plaintiff. He further referred Section 26 of the Specific Relief Act and submitted that the defendants have not admitted subsequent agreement (Renewal) dated 19.12.2021 but they have not pleaded any ground of fraud or mutual mistake. He further submitted that the admission clearly indicate that the parties intended to execute a deal with clear intention and the defendant(s) are not entitled to get any benefit of any novation as the defendant(s) have refused to accept the subsequent change in original agreement. He further submitted that the last date of payment was 31.12.2022 and the appellant-plaintiff was present before the Office of Sub-Registrar to execute his part of contract, to demonstrate his readiness and willingness. He further submitted that the time is in an essence of the contract and the period of limitation is three years, thus, the plaintiff is entitled for specific performance of the contract. He also submitted that the readiness and willingness of the plaintiff is clearly established from the fact that the plaintiff has offered to make payment of remaining dues and attendance in the Registrar’s office, which is placed on record. He also submitted that the respondent(s)- defendant with malicious intention have deliberately avoided to comply their part of the contract, therefore, the appellant was [2025:RJ-JP:44855] (5 of 15) [CMA-426/2025] forced to file a suit for specific performance against the respondent(s)-defendant. 6. Learned Senior Advocate has further submitted that an agreement to sell is executed with the object that a scheme will be developed and defendant(s) will also be given a developed land. He also submitted that the plaintiff has interested in the development of scheme and the right of the plaintiff were created as soon as he has invested and started to execute the scheme in terms of the agreement between the parties. He further referred the conduct of the respondent(s)-defendant and submitted that the respondent(s)-defendant have failed to turn up and they have deliberately avoided to execute their part of the agreement. 7. Learned Senior Advocate appearing on behalf of the appellant has placed reliance upon judgment in case of P. Ramasubbamma Vs. Vijayalakshmi and Others : (2022) 7 SCC 384 and submitted that once the execution of agreement to sell and the payment of advance sale consideration was admitted by the vendor, nothing remains to be proved by the plaintiff. He further placed reliance upon the judgment in case of Gaddipati Divija & Anr. Vs. Pathuri Samrajyam & Ors. : 2023 INSC 385 and submitted that in case of sale of immovable property, there is no presumption that time is the essence of the contract. He further placed reliance upon the judgment in case of Katta Sujatha Reddy and Another Vs. Siddamsetty Infra Projects Private Limited and Others : (2023) 1 SCC 355 and submitted that the Court has to consider the amendment made in the year 2018 in the Specific Relief Act, in particular, considering that the Court has to give effect to terms of the contract by strictly [2025:RJ-JP:44855] (6 of 15) [CMA-426/2025] adhering to the sanctity of contract. He also placed reliance upon judgment in case of Puran Ram Vs. Bhaguram and Another : (2008) 4 SCC 102 and submitted that even if description of land found to be mentioned wrongly in the plaint for specific performance as well as in agreement to sell as same is because of mutual mistake, is not sufficient to disallow the prayer of the appellant-plaintiff. 8. Aforesaid contentions were opposed by learned Senior Advocate appearing on behalf of the respondent(s)-defendant(s) and submitted that the appellant-plaintiff is seeking specific performance against the defendant(s) but without establishing the agreement executed by any of the respondent(s). He also submitted that in the agreement allegedly executed by Sujata, land bearing Khasra No.45/694, 54/693, and 56/692 has been mentioned, which are in the name of Sushma but suit is filed for Khasra No.56 and Khasra No.57/691 whereas land record indicate that Khasra No.56 and Khasra No.57/691 belongs to Sujata but same is not part of agreement to sell, alleged executed by respondent-defendant Sujata. 9. He further referred civil suit filed against Sushma and submitted that the agreement was executed in respect of land bearing Khasra No.45/694, 54/693 and 56/692 and suit is filed for specific performance for land bearing Khasra Nos.45/694, 54/693, 56/692 and 55 whereas Khasra No.55 is not part of any agreement. He further submitted that identical is the issue with another defendant Suman, therefore, the land description in the agreement to sell and suit vis-a-vis revenue record, are different [2025:RJ-JP:44855] (7 of 15) [CMA-426/2025] and suit is liable to be dismissed only on basis of discrepancy in property in question. 10. He further referred Section 7 of the Transfer of Property Act and submitted that a person who is competent to contract and entitled to transfer property or authorized to dispose a property not in his/her own name is competent to transfer but herein the plaintiff has not mentioned a single word about the competency of defendant(s) to transfer the property in question. He also referred Section 20 of the Indian Contract Act and submitted that an agreement is void when both parties operate under a mutual mistake regarding a fact essential to the agreement. He further referred Section 62 of the Contract Act and submitted that the defendant/respondent(s) is not under any obligation to perform her part of the contract as the plaintiff himself claimed novation of the contract and substitution with new terms, which is not proved on record. He further highlighted the effect of novation and submitted that due to substitution of old terms, it is not possible to perform the terms of agreement. 11. Learned Senior Advocate has further placed reliance upon the notice given by lawyer and also the reply of notice and further cancellation of agreement and submitted that once the agreement to sell has been cancelled by the defendant and no steps were taken by the plaintiff, then a simplicitor suit for specific performance is not maintainable. He further submitted that it is necessary for the appellant-plaintiff to file a suit for declaration but the plaintiff-appellant has not file a suit for declaration and in absence of relief to declare cancellation as void, the appellant- plaintiff is not entitled to get any relief to restrain defendant for [2025:RJ-JP:44855] (8 of 15) [CMA-426/2025] transfer or alienation of suit property. He further referred the intention of the appellant-plaintiff and submitted that the facts as narrated by plaintiff are sufficient to disbelieve the version of plaintiff as, he has not fulfilled his part of contract rather created false documents to claim the property of the defendant(s). He also submitted that the intention of the plaintiff clearly indicate that he desires to sell the land of the defendant(s) to the defendant at an exorbitant price and same is sufficient to disbelieve the version of plaintiff. He further submitted that the plaintiff has to show from his bank statement that there was availability of fund to pay remaining sell consideration to the defendant(s) but the plaintiff has failed to demonstrate the funds available for disposal. He also submitted that there is no payment plan to show that how the money shall be paid to the vendor and in absence of funds, the plaintiff has not able to establish that he was ready and willing to execute his part of the contract. He further referred the supplementary agreement dated 19.12.2021 and submitted that the terms of supplementary agreement are contrary to original agreement which means there was a novation of contract and also substitution of terms but the plaintiff has filed a suit for specific performance of the agreement dated 05.07.2021, which is no more in existence on date of filing of civil suit for specific performance. 12. Learned Senior Advocate has further placed reliance upon judgment in case of R. Kandasamy (Since Dead) and Others Vs. T.R.K. Sarawathy and Another : 2024 SCC OnLine 3377 and submitted that requisite pleading and proof are required from a plaintiff to succeed in a suit for specific performance and same [2025:RJ-JP:44855] (9 of 15) [CMA-426/2025] was considered by Hon’ble Supreme Court in case of U.N. Krishnamurthy (Since Deceased) Thr. Lrs. Versus A. M. Krishnamurthy : (2023) 11 SCC 775. He also placed reliance upon observation about readiness and willingness, as considered by Hon’ble Supreme Court in case of R. Kandasamy (Since Dead) and Others Vs. T.R.K. Sarawathy and Another (supra). He also placed reliance upon judgment in case of I.S. Sinandar (Dead) by LRs Vs. K. Subramani and Other : (2013) 15 SCC 27 and submitted that since appellant-plaintiff did not perform his part of contract and the agreement to sell was terminated and no more in existence on date of filing of civil suit, therefore, it was necessary for the plaintiff to file a suit with declaratory relief but in absence of declaratory relief, a suit is not maintainable. He also placed reliance upon judgment in case of U.N. Krishnamurthy (Since Deceased) Thr. Lrs. Versus A. M. Krishnamurthy (supra) and submitted that it is necessary for the plaintiff to show his readiness and willingness to pay remaining sell consideration, pursuant to agreement to sell. He further submitted that in absence of pleadings and the documents, nowhere it was established that the appellant-plaintiff was having sufficient fund to make payment to the defendant(s). At last, he submitted that the trial Court has rightly dismissed the stay application in all three matters and this Hon’ble Court cannot substitute the findings recorded by the trial Court. 13. Heard learned Senior Advocates appearing on behalf of the parties and perused the material placed on record along with judgments as referred by both the parties. [2025:RJ-JP:44855] (10 of 15) [CMA-426/2025] 14. The facts as mentioned by the appellant-plaintiff indicate that he has entered into an agreement to sell with respondent(s)- defendant(s) on 05.07.2021 and further, the terms of agreement was renewed on 19.12.2021. The plaintiff has paid partial amount of sale consideration to the respondent-defendant(s). The parties have agreed for balance payment latest by 31.12.2022 by the plaintiff. Due to dispute and differences, a notice was served by the plaintiff, which was replied by the defendant and further, a notice by the plaintiff and ultimately a suit is filed. 15. The material on record clearly indicate that three different agreements were executed on 05.07.2021 by defendant Sujata, Sushma and Suman but plaintiff is common. All the defendant(s) are sisters. There is a disagreement about supplementary agreement dated 19.12.2021 and learned Senior Advocate appearing on behalf of the appellant has candidly admitted that he is not relying upon terms of supplementary agreement dated 19.12.2021 though, learned Senior Advocate appearing on behalf of the defendant(s) has insisted that once the terms of agreement has alleged changed then the fact of novation has to be considered though, he did not admit the execution of supplementary agreement by the defendant(s). 16. The contention as submitted to the Court clearly indicate that Khasra No.56 and 57/691 belong to Sujata but in agreement to sell dated 05.07.2021 executed by Sujata in favour of appellant- plaintiff, this land description was not mentioned rather agreement is executed in respect of land Khasra No.45/694, 54/693 and 56/692 which in fact belong to defendant of another suit Sushma. [2025:RJ-JP:44855] (11 of 15) [CMA-426/2025] There is no supplementary agreement or correction of entries whereas the suit is filed in respect of Khasra No.56 and 57/691. 17. The material on record also highlighted during course of arguments indicate that a suit is filed against Sushma on basis of agreement for Khasra bearing No.45/694, 54/693, 56/692 and 55 whereas Khasra No.55 is not part of any of the agreement, which means Khasra No.55 is not a subject matter and no effort has been made to correct the entries in the agreement to sell or the civil suit. 18. The documents which includes notice and counter notice which also indicate that before filing the suit, the defendant has cancelled the agreement dated 05.07.2021 but a suit is filed only for specific performance and there is no relief about declaration about existence of agreement between the parties or cancellation of agreement is void. 19. It is also apparent on record that total sale consideration is ₹3,48,33,333/- in each of case and out of which the plaintiff has paid only ₹35,00,000/-. During pendency of this agreement, the plaintiff has also registered one FIR No.747/2022 dated 10.12.2022 under Sections 420, 406 IPC at PS Aravali Vihar, District Alwar and the defendant(s) have filed a Criminal Miscellaneous Petition No.102/2023 under Section 482 of CrPC for quashing the FIR. 20. Both the learned Senior Advocates have highlighted the provisions of the Specific Relief Act, the Indian Contract Act and the Indian Evidence Act and we have considered various provisions under the Specific Relief Act as amended in year 2018 [2025:RJ-JP:44855] (12 of 15) [CMA-426/2025] as well, the Transfer of Property Act, the Indian Contract Act and also the Indian Evidence Act. 21. The trial Court while considering temporary injunction application has observed that while filing civil suit, the plaintiff has mentioned that the suit is filed for specific performance of agreement dated 05.07.2021 as the plaintiff has relinquished his rights under renewal agreement dated 19.12.2021. The trial Court has noticed factual difference of such claim in the notice dated 18.05.2022 and 12.11.2022 sent by the appellant-plaintiff. The trial Court has also noticed that the plaintiff was required to pay remaining sale consideration latest by 31.12.2022 but nothing has been placed on record to show that the plaintiff was having funds and he was ready with funds in the Office of Sub Registrar. The trial Court has found that there was no prima facie case for injunction in favour of the plaintiff. 22. In case of P. Ramasubbamma Vs. Vijayalakshmi and Others (supra) while considering Sections 10, 19(B) and 20 of the Specific Relief Act, 1963, Hon’ble Supreme Court has observed that once the execution of agreement to sell is admitted with advance of substantial sale consideration, then nothing is required to be proved by plaintiff-vandee. Here in this case, only partial payment i.e. ₹35,00,000/- was admittedly made against sale consideration which is approximately 10% of the consideration amount. 23. In case of Gaddipati Divija & Anr. Vs. Pathuri Samrajyam & Ors. (supra), Hon’ble Supreme Court while considering Sections 16(c) and 20 of the Specific Relief Act, has considered the set of facts and circumstances as also in case of [2025:RJ-JP:44855] (13 of 15) [CMA-426/2025] Katta Sujatha Reddy and Another Vs. Siddamsetty Infra Projects Private Limited and Others (supra) and observed that in case of sale of immovable property, there is no presumption as to time being to essence of the contract. The Court may infer that the contract has to be performed in a reasonable time, if the conditions are expressed in the terms of contract. 24. Here in this case, the defendant(s) have pleaded a defence that time was essence of the contract as the plaintiff was required to pay remaining sale consideration latest by 31.12.2022. Again, it can be said that the terms of contract and intention of parties can only be judged from the evidence on record and i.e. again a subject matter of evidence and not required to be discussed in detail at the stage of Civil Miscellaneous Appeal against order of dismissal of temporary injunction application. 25. In case of Puran Ram Vs. Bhaguram and Another : (supra), Hon’ble Supreme Court has referred Section 26 of the Specific Relief Act about the amendment of sale agreement. Since we are considering a miscellaneous appeal against rejection of temporary injunction during pendency of civil suit, therefore, this ground can be considered during trial of the suit and if the amendment is permissible, the appellant-plaintiff can file an application for amendment before the trial Court which can consider in accordance with law but we cannot express any opinion about the possible amendment. 26. Here in this case, the issue raised by learned Senior Advocate clearly indicate that a suit for specific performance is filed on basis of agreement dated 05.07.2021 and the plaintiff has not claim any right on basis of supplementary agreement dated [2025:RJ-JP:44855] (14 of 15) [CMA-426/2025] 19.12.2021, which means the trial Court has to decide on basis of evidence whether the plaintiff is entitled for specific performance or not, but the material on record indicate that the execution of agreement dated 05.07.2021 is admitted though there were some discrepancy about subject matter/land description. The issues of availability of fund and cancellation of agreement before filing of the suit and non-claiming of relief of declaration are again issues matter required to be considered at the time of final adjudication of civil suit. Therefore, considering all the circumstances, we are considering whether it would be appropriate to issue a temporary injunction during pendency of civil suit or not. 27. In order to get a temporary injunction, it is necessary for the appellant-plaintiff to establish a prima facie case and if he is able to establish his prima facie case then other two issues, balance of convenience and irreparable loss are required to be proved. The trial Court has found there is no prima facie case in favour of appellant-plaintiff. The trial Court has also found that there is no balance of convenience or irreparable loss in favour of the plaintiff. 28. Normally, while restraining the respondent(s)-defendant(s) from alienation of suit property during pendency of civil suit, we consider a limitation, provided under Section 41(h) of the Specific Relief Act which explicitly bars issuance of injunction. Normally, in case, the possession of plaintiff, if any, is immediately threatened or an irreparable harm is proven on record then the Court may consider grant of Stay. Here in this case, only partial amount has been paid as an advance against sale consideration, thus, a substantial amount has not been paid. Moreover, the plaintiff is [2025:RJ-JP:44855] (15 of 15) [CMA-426/2025] not in possession, therefore, the rights of the plaintiff depends upon success in the suit for specific performance. 29. Considering the provision of Section 52 of the Transfer of Property Act, any transfer pendente lite is subject to outcome of the civil suit as defendant is aware about the filing of suit by the plaintiff. Therefore, if any, transfer or alienation takes place, then certainly same shall be subject to the outcome of the civil suit which is pending as on date. Since, there are defences with the respondent(s)-defendant(s), and considering the defence, we are also not inclined to interfere in the conclusion of prima facie case drawn by the Trial Court. Therefore, there is no strong prima facie case for the purpose of temporary injunction as the matter requires evidence to establish the facts as pleaded by the plaintiff in his plaint. 30. Since the appellant-plaintiff has failed to establish prima facie case, therefore, there is no balance of convenience or irreparable loss in favour of the plaintiff, so he is not entitled for any temporary injucntion during pendency of civil suit. The trial court has not committed any error while dismissing the application under Order 39, Rules 1 and 2, read with Section 151, CPC. 31. In view of discussion made here and above, the Civil Miscellaneous Appeal Nos. 426/2025, 427/2025, and 428/2025 are hereby dismissed with pending application, if any. The trial court is directed to expedite the trial. 32. No order as to costs. (ASHOK KUMAR JAIN),J MR/84 to 86