spb/- 1 ao1374-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION APPEAL FROM ORDER NO. 1374 OF 2010 ALONGWITH CIVIL APPLICATION NO. 1696 OF 2010 IN A.O. NO.1374 /2010 Dattatray Bapu Dudhane ... Appellant. Vs. Ramrao Govindrao Deshmukh ... Respondent. --- Mr. Rahul Kadam for the Appellant. ----- CORAM : D. G. KARNIK, J. DATE : 13th DECEMBER, 2010. P.C. 1 In a suit for specific performance of a contract to sell, the trial court passed an order of injunction, restraining the appellant (defendant) from creating any third party interest in respect of the suit property. That order is impugned in this appeal. 2 The learned counsel for the appellant submitted that there is an agreement of sale in respect of the 12 Acre of land out of Survey no. 93, Hissa no.2. An injunction has been granted in respect of the whole of the survey no.93/2 because injunction is in respect of the suit property. The spb/- 2 ao1374-10.sxw description of the suit property is given in paragraph 1 of the plaint clearly discloses that the suit was in respect of only 12 Acres of the land and not for whole. Therefore, the contention of the appellant that the appellant was granted injunction in respect of the property which is not subject matter of the suit cannot be accepted. 3 It was next contended that the time was the essence of the contract and therefore, the respondent was not entitled for specific performance of the contract and consequently, not entitled to an injunction. In case of contract for sale of immovable property, time is generally not an essence of contract. In any case, whether time was the essence of contract or not is question of fact which can be decided at the stage of trial. At this stage, there is no material on record to come to a conclusion that time was the essence of contract and that therefore, the respondent had not made out a prima facie case. Consequenlty, no interference is called for in the Appeal. No other point was urged. 4 Appeal is accordingly rejected summarily. 5 In view of rejection of the Appeal, the civil application no. 1696 / 2010 does not survive and the same is disposed. [D.G. KARNIK, J.]