SCA/1819/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1819 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DEVENDRABHAI JEEVANBHAI - DHADAL. - Petitioner(s) Versus BHAVINKUMAR DINESHBHAI MER. - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Petitioner(s) MR MAHESH BHAVSAR WITH MR MUKESH N VAIDYA for Respondent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/01/2008 ORAL JUDGMENT Rule. Learned advocate Shri Mukesh Vaidya waives service of rule. Learned advocate Shri Mahesh Bhavsar appears with Mr.Mukesh Vaidya for the SCA/1819/2007 2/4 JUDGMENT respondent. 2. In the present petition, the petitioner- plaintiff has challenged an order dated 18.10.2006 passed by the learned Additional passed by the learned Additional Senior Civil Judge, Rajkot below Ex.5 in Special Civil Suit No.89 of 2006 filed by the petitioner herein. 3. By the said order, the learned Judge was pleased to reject the prayer for interim injunction made by the petitioner. The appellate court also rejected the appeal filed by the petitioner against the said order. 4. From the material on record and from the arguments advanced by the learned advocates appearing for the parties, it appears that there is no dispute that the respondent had entered into an agreement to sell his immovable property with the petitioner. It is the case of the petitioner that despite subsistence of such an agreement, the respondent was trying to sell the same property to some third party. He, therefore, filed the aforesaid suit and also claimed injunction against the respondent from selling, transferring or alienating the property. The injunction as prayed for was refused by the Trial Court on the ground that within 90 days period prescribed in the agreement, full sale price was not tendered by the petitioner. SCA/1819/2007 3/4 JUDGMENT 5. It is not in dispute that while entering into the agreement to sell, the petitioner paid a sum of Rs.1 lac towards part payment of the sale price against a total agreed price of Rs.2,50,000/- for the property in question. 6. I have also perused the relevant provisions contained in the agreement to sell prescribing time limit of 90 days for making remaining payment. At the time of conducting the trial, it would be necessary for the Trial Court to decide whether the said time limit was rigid and whether time was the essence of the contract. However, without going into these questions and trying the issues, it would not be open for the Trial Court to hold that the petitioner has no right, title or interest in the property. 7. Considering the balance of convenience as also the irreparable loss that may be caused to the petitioner if interim injunction as prayed for is not granted, I find that this petition is required to be allowed. The learned advocate for the petitioner stated that presently the possession of the property is handed over by the respondent to some third party. Learned advocate Shri Bhavsar for the respondent orally stated that the respondent has already entered into a registered sale deed. However, neither before the Trial Court nor before this Court there is anything to establish this statement. I therefore ignore the oral averments made on behalf of the respondent. In any case, this Court had granted order SCA/1819/2007 4/4 JUDGMENT of status quo on 19.1.2007. 8. Under the circumstances, by quashing the order dated 18.10.2006 passed by the Trial Court as confirmed by the appellate court by order dated 18.12.2006, it is provided that the respondent shall not sell, transfer, lease or in any other manner create any charge over the suit property till final disposal of the suit. Rule is made absolute accordingly with no order as to costs. (Akil Kureshi, J.) (vjn)