1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.354 OF 2009 WITH CIVIL APPLICATION NO.429 OF 2009 Savjibhai Jivrajbhai Kakadiya & anr. ..Appellants V/s Omprakash Banwarilal Gupta & ors ..Respondents Ms.Sumedha Rao, Advocate, for the appellants Mr.R.C.Kaushik, Advocate, for the respondent Nos.1 & 2 CORAM : R.M.SAVANT, J. DATE : 24TH MARCH, 2009 P.C. . This Appeal from Order filed by the original defendant Nos.3 & 4 takes exception to the Order dated 15th December, 2008, by the learned Judge of the City Civil Court by which order the Notice of Motion filed by the plaintiff i.e.respondent No.1 herein came to be partly allowed in terms of prayer clause (a) thereby restraining the defendant Nos.1 to 4, their servants, agents or any other persons claiming through or under them were temporarily restrained from 2 dealing with or disposing of, alienting, encumbering, parting with possession, creating third party right till possession of the suit 2. The respondent Nos.1 & 2 are the original plaintiffs, who have filed Short Cause Suit No.3206 of 2006 for enforcing the statutory obligations of the defendant No.1 – developer under the Maharashtra Ownership Flats Act, 1963. It is the case of the plaintiffs that the defendant No.1 – developer agreed to sale Flat No.A/2103 of Carpet Area admeasuring 675 Sq.ft. (inclusive of the area of balconies) on the 21st floor in respect of which an Agreement was entered into on 29th September, 2000 and registered on 5th October, 2000. The plaintiff has paid the entire consideration of Rs.7,76,800/-. Thereafter, the defendant No.1 by the letter dated 18th June, 2005, authorized the plaintiff to take possession but a note was put in the said letter that the flat would be handed over only after settlement with Ushaben M. Patel i. e. original defendant No.2. It is the case of the plaintiffs that the defendant No.1 entered into an agreement with the defendant No.2 in respect of the same flat on 18th May, 2002. Thereafter, the defendant No.2 entered into an Agreement with the 3 defendant Nos.3 & 4 on 13th September, 2006 and the said Agreeent was registered on 11th December, 2006. The plaintiffs filed the above Notice of Motion inter alia claiming the reliefs for restraining the defendant Nos.1 to 4, their servants, agents or any other persons claiming through or under them from dealing with or disposing of, alienting, encumbering, parting with possession, creating third party rights till pendency of the suit, as well as for appointment of Court Receiver. The defendant No.2 filed an Affidavit-in-reply to the said Notice of Motion and inter alia contended that by an Agreement dated 3rd May, 2002, the defendant No.1 has sold the suit flat to the defendant No.2 and that the agreement is registered on 23rd August, 2004. It was further contended by the defendant No.2 that she was put in possession and Share Certificate has also been issued in her favour on 18th September, 2005. It is further the case of the defendant No.2 that she sold the said flat to the defendant Nos.3 & 4 by registered Agreement dated 11th December, 2006. It is, therefore, her case that she is at present not concerned with the said flat. 3. The Trial Court on the basis of the documents before it 4 namely the registered Sale Deed, entered into with the plaintiff came to a conclusion that the plaintiff has made out a prima facie case for the grant of the discretionary relief of injunction. The Trial Court considered the fact that the registered Agreement with the plaintiff was dated 29th September, 2000, whereas Agreement with the defendant No.2 was dated 18th May, 2002. The Trial Court was of the view that inspite of paying the entire consideration, the plaintiff was not put in possession. The Trial Court on the said basis was of the view that the plaintiff has made out a prima facie case and since the defendant No.2 has sold the said flat in question to the defendant Nos.3 & 4 to avoid multiplicity of proceedings and further complications, the Trial Court granted the interim injunction by the impugned order however, rejected the prayer for appointment of Receiver. Since the flat was sold by the defendant No.2 to the defendant Nos.3 & 4 during pendency of the said suit, the Trial Court was of the view that the doctrine of lis pendence would be applicable. 4. In my view, considering the reasons cited by the Trial Court whilst granting the relief of temporary injunction, in my view, no case 5 for interference in the above Appeal from Order is made out. The above Appeal from Order is accordingly dismissed. 5. In view of the dismissal of the above Appeal from Order, Civil Application does not survive and the same is accordingly disposed of. However, the hearing of the suit is expedited. (R.M.SAVANT, J.)