Gujarat High Court
Lakhmanbhai Gogabhai Goraniya vs Hirjibhai Kanjibhai Sagthiya on 4 November, 2025
NEUTRAL CITATION
C/AO/184/2025 JUDGMENT DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 184 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LAKHMANBHAI GOGABHAI GORANIYA
Versus
HIRJIBHAI KANJIBHAI SAGTHIYA
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Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR AADITYA D
BHATT(8580) for the Appellant(s) No. 1
MS CHANDNI S JOSHI(9490) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2025
ORAL JUDGMENT
1. Leave to amend the memo of appeal by correcting the number of Special Civil Suit is granted. Necessary incorporation be made, forthwith.
2. Heard learned Senior Counsel Mr.Asim Pandya assisted by learned advocate Mr.Aaditya Bhatt for the appellant.
3. The present appeal from order filed under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") directed against the order dated 30.06.2025 passed by the Principal Senior Civil Judge, Lalpur below Exhibit 5 in Special Civil Suit No.4 of 2024, whereby the injunction prayed by the appellant - plaintiff is refused.
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respondent is the original defendant of Special Civil Suit No.4 of 2024. The suit came to be filed seeking specific performance of one Agreement to Sell (hereinafter referred to as "ATS") executed between the parties on 15.09.2022.
4.1 As per the case of the plaintiff, ATS was executed for suit land in question and as per its terms, total sale consideration of Rs.97,97,000/- fixed between the parties. At the time of execution of ATS, Rs.21,00,000/- was paid in cash by the plaintiff to the defendant, who issued its receipt. Further, balance sale consideration of Rs.76,97,000/- was required to be paid by the plaintiff to the defendant within three months from the date of execution of ATS i.e. 15.12.2022, and on making such payment, the plaintiff can get the sale deed registered in his favour.
4.2 It is also the case of the plaintiff that on the very day i.e. on 15.09.2022, one compromise entered into between the parties which was reduced on the piece of paper, whereby the defendant issued compromise receipt thereby, agreed to have received the entire sale consideration. It is alleged in the said receipt that sale deed to be executed in three months and after completion of three months, any objection raised then such compromise stands forfeited. It is further alleged also in said compromise receipt that in a case where if sale deed is required to be Page 2 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined executed prior to three months, the plaintiff requires to pay Rs.40,00,000/- to the defendant. Nonetheless, if no such contingency arises on completion of three months, it was agreed that the defendant deemed to have receive the entire sale consideration and to execute sale deed. To get it confirm title clear, the public notice dated 16.09.2022 came to be issued by plaintiff through his lawyer in regard to the suit land.
4.3 So, according to the case of the plaintiff as stated in paragraph 7 of plaint, as the entire sale consideration has been received by the defendant and after publication of notice in the newspaper, there was no objection received from any third party, defendant supposed to execute sale deed. Nonetheless, the defendant was not ready and willing to perform his part of the contract by not clearing the title of the suit land, in as much as, not obtained any no due certificate (NOC).
4.4 Thus, the plaintiff was constrained to issue legal notice dated 19.10.2024, called upon the defendant to execute the sale deed in favour of the plaintiff, failing which the plaintiff claimed to approach the Court for performance of ATS. Hence, the plaintiff filed the suit on 04.11.2024. The plaintiff has submitted documentary evidence in support of the plaint which was referred by the Trial Court in paragraph 6 of the impugned order. At appropriate stage of this judgment if so required, the same will be referred/discussed.
4.5 The defendant appeared in the suit and contested it by filing his written statement. It is the specific case of the defendant that he has not received the balance sale consideration from the plaintiff within three months from the Page 3 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined date of execution of ATS as per such ATS, whereby the plaintiff failed to perform obligation cast upon him. The defendant has further disputed any compromise receipt dated 15.09.2022 submitted on record by the plaintiff, whereby the defendant completely denied to have received the entire sale consideration. Thus, defendant disputed such compromise receipt produced at Mark 3/2.
4.6 After considering the pleading, documentary evidence made available on record, and after hearing the parties, the trial court vide its impugned order dated 30.06.2025 rejected the injunction application on the ground that the plaintiff has failed to perform his part of the contract by not paying the balance sale consideration within three months from 15.09.2022 and filed the suit almost after two years from completion of such deadline. Thus, trial court arrived at the conclusion that plaintiff failed to prove his prima facie case. Hence, present appeal.
SUBMISSIONS OF THE APPELLANT - PLAINTIFF :
5. Learned Senior Counsel Mr. Asim Pandya assisted by learned advocate Mr. Aaditya Bhatt for the appellant would submit that the order impugned in the appeal is ex-facie erroneous, perverse and not passed in consonance with the provisions of the Specific Relief Act, 1963 (hereinafter referred to as "the Act, 1963"), requires to be interfered with by this Court.
5.1 Learned Senior Counsel Mr. Pandya would respectfully submit that the trial court has not dealt with several issues germane in the matter, rather in a cavalier manner decided the injunction application, that too by not dealt with all the Page 4 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined arguments so canvassed by the plaintiff.
5.2 Learned Senior Counsel Mr. Pandya would further submit that the trial court has erroneously arrived at a conclusion that no prima facie case is made out by the plaintiff. It is submitted that ATS executed by the defendant is not disputed, in as much as, part payment received by the defendant is not in dispute. It is further submitted that once, ATS is admitted by the defendant, as per the amended Section 10 of the Specific Relief Act, 1963, the Court is required to grant relief in favour of the plaintiff.
5.3 Learned Senior Counsel Mr. Pandya would further submit that the plaintiff always ready and willing to perform his part of contract, rather the defendant has failed to discharge his obligation as per the terms of ATS by not removing the encumbrances on the suit land in time. It is submitted that when there is no fault on the part of the plaintiff in performing his part of the terms of ATS, as a matter of course, his interest is required to be protected by the Court, by granting injunction.
5.4 Learned Senior Counsel Mr. Pandya would further submit that the trial court has committed serious error of law by refusing injunction solely on the ground that the suit came to be filed after two years, after completion of period within which balance payment was to be made by the plaintiff, as agreed between the parties while executing ATS then no injunction can be granted. It is submitted that so far as in a case of ATS qua immovable property is concerned, time never considered as an essence of the contract. It is further submitted that the plaintiff Page 5 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined has in fact made entire payment to the defendant as agreed between the parties by issuing compromise receipt on 15.09.2022 by defendant. So, on completion of three months from the date of execution of ATS/ compromise receipt, nothing further requires to be done by the plaintiff.
5.5 Learned Senior Counsel Mr. Pandya would respectfully submit that the trial court has erroneously arrived at a conclusion that the compromise receipt signed by the defendant on 15.09.2022, is not believable. It is submitted that the signature of the defendant on such compromise receipt, though disputed by the defendant, as per the private Handwriting Expert's report dated 11.03.2025, submitted on record, would clearly prove that the signature of the defendant on the ATS, which is not in dispute, is matched with the signature of the defendant on the compromise receipt.
5.6 Learned Senior Counsel Mr. Pandya would further submit that it is a specific case of the plaintiff that due to cordial relations between the plaintiff and defendant, the plaintiff repeatedly requested the defendant to remove all encumbrances over the suit land, which were, in fact, removed by the defendant on 05.04.2024, but again he created encumbrances over the suit land on 08.09.2024, thereby given a cause of action to the plaintiff to file the suit for specific performance of the ATS. It is submitted that as on date, the defendant has not entered into any sale agreement with third party, and to avoid any multiplicity of proceedings, the injunction as prayed needs to be granted.
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request this Court to remand the matter back to the trial court, thereby enabling it to consider two other ingredients, i.e. balance of convenience and irreparable loss, which were not considered by it while rejecting the injunction application.
5.8 Making the above submissions, learned Senior Counsel Mr. Pandya would humbly urge this Court to entertain the present appeal.
5.9 No other and further submissions are being made by the learned Senior Counsel Mr. Pandya for the plaintiff.
ANALYSIS :
6. Before adverting to the issue germane in this appeal, at the outset, I would like to refer few decisions of the Hon'ble Apex Court, whereby it has defined the scope and ambit of interference of this Court while exercising its appellate jurisdiction under Order 43 Rule 1 (r) of CPC.
7. First, I would like to rely upon the decision of the Hon'ble Apex Court in the case of (I) Wonder Ltd. and another vs. Antox India Pvt. Ltd. - 1990 Supp 1 SCC 727, the Hon'ble Supreme Court in para-9 of the said decision, after considering the scope of Order 43 Rule 1 (r) of the Code in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed and held as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the Page 7 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
(emphasis supplied)
8. Recently, in the case of Ramakant Ambalal Choksi V/s Harish Ambalal Choksi - 2024 SCC Online SC 3538, Hon'ble Apex Court again reiterated aforesaid principle, albeit with explaining what amounts to perversity in order having so observed and held thus:-
"27. The principles of law explained by this Court in Wander's (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd., 2016 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the Page 8 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
"20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd."
32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case".
(emphasis supplied)
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NEUTRAL CITATION
C/AO/184/2025 JUDGMENT DATED: 04/11/2025
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9. Now, adverting to the facts germane from the case, which are observed hereinabove, they are not in dispute. It remains undisputed that the ATS was executed between the parties on 15.09.2022, whereby the plaintiff has agreed to purchase the suit land for Rs.97,97,000/-. At the time of execution of the ATS, the plaintiff paid Rs.21,00,000/- in cash to the defendant. The balance sale consideration of Rs.76,97,000/- was required to be paid within three months thereafter i.e. 15.12.2022. The registered sale deed was required to be executed by the defendant in favor of the plaintiff or the person to whom the plaintiff wishes on completion of said period. It further appears from other clauses of the ATS that the suit land was clear and marketable and there was no encumbrance on it. It has remained an undisputed fact on record that the aforesaid balance sale consideration was never paid by the plaintiff to the defendant within the time agreed between the parties as per the aforesaid ATS.
10. The entire case of the plaintiff, so far as making balance payment and/or adjustment of balance payment, would rest on the alleged compromise receipt dated 15.09.2022, issued by defendant on the day on which the ATS was executed. This compromise receipt is specifically disputed by the defendant in his written statement, contending, inter alia, that he has not received any balance sale consideration from the plaintiff within the stipulated time and further alleged that the compromise receipt is a fraudulent document created by the plaintiff. It is further stated that the alleged compromise receipt is prepared on a doctor's prescription, inasmuch as, on top of such piece of Page 10 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined paper on which the compromise receipt was written, it suggests that it is a doctor's prescription. It is true that the plaintiff has obtained a private Handwriting Expert's report, who confirms that the signature of the defendant on the ATS (not in dispute) and the compromise receipt are of the same person, i.e. the defendant. Such compromise receipt and private handwritten expert report requires to be proved by plaintiff by leading appropriate evidence. Nonetheless, due to following observations so made by trial court, having not believed such evidence, according to me, when such view taken by trial court not found either erroneous or perverse, and so also due to following reasons, hardly any scope remains to interfere in the impugned order.
11. The trial court, after appreciating the pleadings of the parties, including the documentary evidence on record, arrived at a conclusion that the compromise receipt produced at Mark-3/2 seems to be written on a doctor's prescription because, as observed above, the top of the document mentions the name of the patient, age, sex, and date. The trial court further observed in paragraph-18 of the impugned order that, apart from such aspect, it is not mentioned what amount has been paid by the plaintiff to the defendant, but only observed that consideration amount of 'Aarablus land' has been received. It has been further observed that if the whole payment was received by the defendant, why the remaining amount of consideration was not mentioned in the compromise receipt. Such a conclusion cannot be said to be either erroneous or perverse, inasmuch as, a bare reading of the compromise receipt, though executed on the same day on which the ATS was Page 11 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined executed, makes no whisper about how much total payment was made by the plaintiff to the defendant in lieu of the balance sale consideration.
12. Having so observed above, while narrating the facts, that as per the alleged compromise receipt, it is so mentioned that in a case where any objection raised from any quarter after completion of three months, such compromise stands forfeited. If sale deed executed prior to three months than plaintiff requires to pay Rs. 40,00,000/. Nonetheless, no such contingence arise, on completion of three months i.e. from 15.09.2022, defendant requires to execute the sale deed in favor of the plaintiff as if entire sale consideration received by him. The bare reading of alleged terms of compromise appears to be so vague and not in consonance with terms of ATS, albeit executed on same date.
13. In light of aforesaid, trial court well within its discretion not believed alleged compromise receipt and view taken by trial court is plausible view. Such view having not found erroneous and perverse, in such circumstances, keeping in mind the ratio of aforesaid two decisions i.e. Wonders Ltd. (supra) and Ramakant Ambalal Chokshi (supra), this Court not permitted in law to substitute its view over the view of trial court.
14. At the same time, on publication of notice in the newspaper on 16.09.2022, no objection/dispute appears to have been received by the advocate of the plaintiff. It has also remained an undisputed fact that after completion of 3 months, i.e. 15.12.2022, till the issuance of notice by the plaintiff through the very advocate on 19.10.2024, there is nothing on record to Page 12 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined show that the plaintiff sought execution of the sale deed.
15. Thus, in view of the aforesaid, when a compromise receipt alleged to have been executed by the defendant is prima facie not believed by the trial court for the reasons assigned in the impugned order, according to my view, considering afore stated facts and circumstances of the present case, the way in which the compromise receipt was prepared on a doctor's prescription, such alleged compromise executed on the date of the ATS itself, and no written request made by the plaintiff on completion of three months from the execution of the ATS, would definitely disentitled the plaintiff to secure an injunction, inasmuch as, for no good reason, the plaintiff waited for so long, about two years on completion of period i.e. three months so prescribed in ATS, to approach the Court seeking specific performance of the ATS.
16. When the trial court not believed the compromise receipt, as per the terms of the ATS, the plaintiff was supposed to make the balance payment within three months from the date of execution of the ATS. In such circumstances, the question of the readiness and willingness of the plaintiff to perform his part of the contract needs to be looked into, wherein, prima facie, it can be gainsaid that the plaintiff, having not fulfilled his part of obligation as per the terms of the ATS, having failed to pay the balance sale consideration within three months, would not entitle him to get an injunction. Of course, on completion of the trial, and if the plaintiff successfully proves his case as pleaded in the plaint, he would be entitled to seek relief as per amended Section 10 of the Act, 1963. At the same time, it has come on record that the balance sale consideration was not paid by the Page 13 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined plaintiff within time, the trial court was well within its discretion not to grant an injunction in favor of the plaintiff.
17. At this stage, it would be appropriate to consider the decision of the Honorable Apex Court in the case of Alagammal & Ors. V/s Ganesan & Anr. - in (2024) 3 SCC 232, which was, in fact, relied upon by the trial court while passing the impugned order, wherein it is held thus:
"35. The ratio laid down in K.S. Vidyanadam (supra) which had a similar factual matrix squarely applies in the facts and circumstances of the present case, on the issue that time was the essence of contract and even if time is not the essence of the agreement, in the event that there is no reference of any existence of any tenant in the building and it is mentioned that within a period of six months, the plaintiffs should purchase the stamp paper and pay the balance consideration whereupon the defendants will execute the Sale Deed, there is not a single letter or notice from the plaintiffs to the defendants calling upon them to the tenant to vacate and get the Sale Deed executed within time. Further, the Legal Notice was issued after two and a half years from expiry of the time period in K.S. Vidyanadam (supra), whereas in the present case, the Legal Notice has been issued after more than six and a half years.
36. The relevant paragraphs from K.S. Vidyanadam (supra) read as under :
'10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored Page 14 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani, 1993 1 SCC 519: (SCC p. 528, para 25) "25. ... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?):
(1) from the express terms of the contract;
(2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract."
In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973 [ It is a well-known fact that the steep rise in the price of oil following the 1973 Arab-Israeli war set in inflationary trends all over the world. Particularly affected were countries like who import bulk of their requirement of oil.]. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The trial court has accepted the defendants' story whereas the High Court has accepted the plaintiff's story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981.
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It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW 2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e., on the expiry of six months from the date of agreement), he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between 15- 12-1978 and 11-7-1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 ½ years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 ½ years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15-12-1978 till 11-7- 1981, i.e., for a period of more than 2 ½ years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants' case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2 ½ years and demand specific performance.
11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar, 1952 AIR(Mad) 389 : (1952) 1 MLJ 44] holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality - and the reality is constant and continuous rise in the values of urban properties - fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the Page 16 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 ½ years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
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13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 ½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices - according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.' (emphasis supplied)
37. The decisions relied upon by the respondents, relating to the conduct of parties are of no avail to them in the circumstances, as even if the case of later payments by the respondents to the appellants is accepted, the same being at great intervals and there Page 17 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined being no willingness shown by them to pay the remaining amount or getting the Sale Deed ascribed on necessary stamp paper and giving notice to the appellants to execute the Sale Deed, it cannot be said that in the present case, judged on the anvil of the conduct of parties, especially the appellants, time would not remain the essence of the contract."
(emphasis supplied) 17.1 According to the submission of learned Senior Counsel Mr. Pandya, the aforesaid decision would not be applicable to the facts of the case, inasmuch as, the judgment was in relation to a final judgment and decree passed in a case of a suit for specific performance, whereas the matter at hand is at the stage of injunction. Such an argument is not sustainable in law as this Court is required to consider and follow the ratio laid down by the Honorable Apex Court while deciding particular issue. According to my view, considering ratio of said decision, if applied to facts of the case on hand, it is discernible that plaintiff did nothing for about two years from the date of execution of the ATS, having not paid balance sale consideration in time agreed as per ATS, then wake up after more than two years surely consider as delay/laches on his part, such an act would not entitle him, at least, to secure an injunction in his favour.
17.2 It would also apt to refer and to rely upon the decision of the Honourable Apex Court in the case of R. Shama Naik Versus G. Srinivasiah - 2024 SCC Online SC 3586, wherein it is held as under, "10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.
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11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff."
(emphasis supplied)
18. The upshot of the aforesaid would lead to one conclusion that the plaintiff has failed to show that he was always ready and willing to perform his part of the contract as agreed between the parties as per agreed terms of ATS. Once that would be the conclusion, it can be gainsaid that no prima facie case is made out by the plaintiff. Thus, I am not at all impressed by any of the submissions made by learned Senior Counsel Mr. Pandya that the trial court has erroneously arrived at a conclusion that the plaintiff has not made out a prima facie case. Furthermore, when no prima facie case is made out by the plaintiff, the question of examination of the other two aspects, i.e. balance of convenience and irreparable loss, pales into insignificance.
19. It is now a well-settled legal position of law that when a plaintiff wakes up after a considerably long period for enforcement of his right and seeks any performance as per the terms of the contract, in such a case, the Court may be loath to grant an injunction in his favor. To better understand such a point, I would like to refer to a few decisions of the Honorable Apex Court/this Court as follows:
19.1. It would be apt to first refer and rely upon the decision of Hon'ble Apex Court in a case of in the case of Mandali Ranganna vs. T. Ramachandra, 2008 11 SCC 1, wherein Hon'ble Apex Court held as under:-Page 19 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025
NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined "[21] While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
[22]. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively."
(emphasis supplied) 19.2 It is also apposite to refer to the decision of this Court (Hon'ble Mr. Justice H.L. Gokhale, as His Lordships then was) in the case of Veetrag Holding Co. Ltd. Vs. Gujarat State Textile Corporation Ltd., 1996 3 GLR 536, more particularly in Para-
8, which reads as under :-
"8. Even so, in any case, inasmuch as this contract was terminated on 6th December 1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellants certainly cannot be non-suited on the ground of limitation inasmuch as their suit is within time. However, when it comes to grant of equitable relief when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf. Shri Gupta relied upon the Apex Court judgment rendered in Dalpat Kumar and Anr. v. Prahlad Singh and Ors. Thereof the Courts are cautioned and required to exercise sound judicial discretion. They are required to find out that no other remedy is available to the party concerned and then as stated by the Honourable Supreme Court (and again relied upon by Shri Gupta) in para 20 of the judgment of the Apex Court rendered in State of Maharashtra v. Digambar; for approaching a Court of equity, the blameworthy conduct of a person approaching a Court of equity, for obtaining discretionary relief disentitles him for grant of such relief. Para 20 of the above judgment reads as under:Page 20 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025
NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined Laches or undue delay, the blameworthy conduct of a person in approaching a Court of equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Hurd, thus:
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
(emphasis supplied) 19.3. Recently also, Hon'ble Apex Court in the case of Ambalal Sarabhai Enterprise Limited vs. K.S.Infraspace LLP Ltd. and another - 2020 5 SCC 410, held as under :-
"19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows :
"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:
(i) delay running beyond the period prescribed under the Limitation Act;
(ii) delay in cases where though the suit is within the period of limitation, yet:Page 21 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025
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(a) due to delay the third parties have acquired rights in the subject matter of the suit;
(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief."
22. In M.P.Mathur vs. DTC, 2006 13 SCC 706, this Court observed :
"14. The present suit is based on equity In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decree. In such cases, the court has to look at the contract. The court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the court will not grant the relief prayed for (Snell's Equity, 31st Edn., p.366)...."
23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., 1995 5 SCC 545, observing as follows :
"47....Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest...."
(emphasis supplied) Page 22 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025 NEUTRAL CITATION C/AO/184/2025 JUDGMENT DATED: 04/11/2025 undefined CONCLUSION
20. In view of the aforesaid well-settled principles of law having applied upon the facts and circumstances of the present case, I do not find any reason to interfere with the impugned order passed by the trial Court, as it is neither erroneous, perverse, nor contrary to provisions of the Act, 1963, and or against settled legal principle of law. In fact, I am in complete agreement with the view taken by trial court, when rejected impugned injunction application.
21. In view of the aforesaid conclusion, I do not find any merit in the present appeal, which requires to be dismissed. According, it is hereby dismissed. No order as to costs. As a sequel, connected Civil Application, if any, stands disposed of.
(MAULIK J. SHELAT, J) GAURAV J THAKER Page 23 of 23 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 02:36:36 IST 2025