1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION APPEAL FROM ORDER NO.302 OF 2002 M/s. Surbhai Developers. ...Appellant. Vs. M/s. Four Wall Builders and ors. ...Respondents. Mr.P.S.Dani for the Appellant. CORAM : R.S. MOHITE, J. DATE : 20TH JULY, 2009 PC: 1. This is a appeal from order filed by the original plaintiff impugning a judgment and order dated 25.1.2001 passed by the II Joint Civil Judge, S.D., Pune below Exh.6 in Special Civil Suit No. 1122/2000. At the very out set, the Advocate for the appellant stated that the order refusing interim relief has been passed on 25.1.2001 and he has no instructions as to whether the suit itself has been disposed off. This position cannot be ascertained as none appears for the respondents. In this situation, I feel that, it will be better to dispose of the appeal from order on merits. 2 2. On perusing the record and the impugned judgment and order, I find that the plaintiff s suit was for specific performance of an oral agreement. The existence of the oral agreement is said to be evidenced by the fact that the plaintiff paid an amount of Rs.18.00 lacs by cheque to the defendant No.1 and the said cheque was encashed. The case of the defendant No.1 as can be made out from his say interalia is that the amount received was paid back. Since the plaintiff s case is based upon an oral agreement, the existence of such an agreement will have to be proved by leading cogent and convincing evidence in that regard. That being the case, it must be held that the plaintiff has not made out a prima facie case which would entitle him for injunction sought against the defendants. In my view, the reasons given in the impugned order are cogent and logical and do not called for any interference in the appeal. It is however, made 3 clear that if the suit is not disposed off, same may be disposed off on the basis of the evidence without being influenced by the order of this court. A.O. is disposed off. ( R.S. MOHITE, J.) 4 5 6 7 CORAM : D.K.DESHMUKH & R.S.MOHITE, JJ. DATE : 8TH JUNE, 2009 P.C. . Rule, returnable on 8th June, 2009. 2. Stand over to 8th June, 2009. The learned counsel for the state seeks time. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)