1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 69 OF 2010 WITH CIVIL APPLICATION NO. 5706 OF 2010 Dnyaneshwar s/o Pandurang Bhawar ...Appellant Versus Shri Vinay P. Chaudhari ...Respondent ..... Mr. Lokhande advocate h/f Mrs. S.A.Dhumal, advocate for the appellant Mr. A.S. Bajaj, advocate for the respondent ..... CORAM: S. S. SHINDE, J. DATED: 31ST AUGUST, 2010 PER COURT:- 1 Heard counsel for the respective parties. 2. This Appeal from order is filed against order dated 15.3.2010, passed below Exh.5 in Special Civil Suit No. 429 of 2009. The case of the appellant before the trial court, in nutshell, is as under:- The defendant agreed to sell plot No. 1, 3, 5 to 16, 18 to 22 (total 19 blocks) out of unsanctioned layout situated at Block No.98, 2 Mouje Tisgaon, admeasuring 59511 feet (suit property) on 29.9.2006. It was agreed upon by the defendant to obtain necessary permission, sanctioned layout, constructing internal road, street lights, drainage connection, N.O.C. of M.S.E.B. and CIDCO, water connections on the suit property within six months from such date. The terms and conditions of the agreement were reduced to writing and was signed by the defendant and at that time the defendant accepted Rs. 2,90,000/- in cash, as earnest money. It was also agreed that after completion of above work by the defendant he would execute the sale deed of the suit property in favour of the plaintiff @ Rs.96 per sq. ft. Later on while the plaintiff from time to time contacted the defendant for completion of the such work and for execution of sale deed but the defendant on one pretext or the other avoided to execute the agreement. Hence, the suit came to be filed as well as the application Exh.5. 3 The defendant appeared in the matter and filed his reply to application Exh.5 at Exh.16 and denied the case of the plaintiff. Learned Judge framed two points for his consideration and determination and after hearing the respective parties, the learned Judge has rejected the application. Hence, this appeal. 4 Learned counsel appearing for the appellant submitted that the appellant filed suit for specific performance on the basis of the 3 agreement to sale. The appellant has paid an amount of Rs.2,90,000/- as part consideration to the defendant. Learned counsel further submitted that it was agreed between the parties that the defendant will obtain necessary permission from CIDCO and MSEB and even sanction to the lay out. Learned counsel appearing for the appellant invited my attention to the photo copy of 7x12 extract which is annexed to the plaint. It is further submitted that the trial Court has not taken into consideration the documents placed on record. It is further submitted that the defects which are indicated in the impugned order can be cured and rectified subsequently. The appellant has paid the court fees of Rs.80500/-. He further invited my attention to the grounds taken in the appeal memo as well as the annexures thereto and submitted that prima facie the case was made out by the plaintiff to grant relief as prayed for. However, the trial court has erroneously rejected the application filed by the plaintiff. 5 On the other hand, learned counsel appearing for the respondent submitted that in all there are five owners of the property and only respondent alone was added as defendant in the suit. All owners are not made party to the suit. The alleged agreement on which the plaintiff is placing reliance is not acceptable to the defendant. It is further submitted that there is no identification of property. The unsanctioned draft lay out plan was placed on record by the plaintiff. Therefore, relying on the reasons recorded in the 4 impugned order, the learned counsel submitted that the Appeal from Order is devoid of merits and the same deserves to be dismissed. 6 I have heard learned counsel appearing for the appellant and the respondent. The trial court while rejecting the application at Exh.5, filed on behalf of the appellant-plaintiff, has recorded the reasons in para 6, which are reproduced as under:- “6. In support of his case, the plaintiff has placed on document layout which is admittedly unsanctioned. The plaintiff had also placed receipt at document No.3 about the agreement between him and the defendant regarding suit property. However, the contention of the plaintiff is quite unbelievable that the written terms and conditions agreed upon by the defendant are in custody of the defendant. Admittedly, the alleged agreement of sale is not registered document. Hence only on the basis of receipt, document 3 it cannot be concluded that there was an agreement of sale as alleged by the plaintiff regarding suit property. Further more when the layout, itself is unsanctioned, unnumbered, it could not be imagined that an agreement can take place regarding such land. Therefore, the plaintiff has failed to prove the existence of prima facie case, balance of convenience in his favour. Likewise, the plaintiff has also failed to prove that he would suffer irreparable loss in case Exh.5 is not allowed in his favour. No evidence is paced on record, so as to indicate that the defendant is trying to create any third party interest in the suit property. 7/12 extract of suit property indicates names of other persons as its co-owners with defendant. Hence, in absence of any authorization from them 5 defendant could not have possibly agreed to sale suit property as alleged by plaintiff. Hence on this count also the case of plaintiff become prima facie unreliable.” 7 It is an admitted position that the agreement to sale was not placed on record. According to the plaintiff/appellant the agreement to sale is in the custody of the defendant and they are suppose to file it on record. Learned Judge has also recorded that the unsanctioned layout was placed on record. Learned Judge has also taken into consideration the 7x12 extract of the suit property, which indicates the name of other persons as its co-owners with defendant are shown. Taking entire case of the appellant as it is, in my opinion, the trial court has rightly rejected the application below Exh.5. Viewed from any angle, the reasonings recorded by the trial court in para 6 are inconsonance with the material placed on record. Grant of relief of injunction is a discretionary relief. The trial court on the strength of the documentary evidence and the material brought on record found that the plaintiff has failed to establish the prima facie case to entertain his application for grant of injunction. 8 For all these reasons, I do not find any substance in the Appeal from Order. Hence, the appeal is dismissed. 9 In view of dismissal of appeal from order, civil application No. 6 5706 of 2010 does not survive and the same stands rejected. Interim relief granted earlier, stands vacated. 10 Record and proceeding be sent back forthwith. *****