1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.53 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri V.S.Bedre, Advocate, for the appellant. Shri S.D.Kulkarni, Advocate for Respondent Nos.2, 3 and 5. Smt. M.S.Jagtap, Advocate for Respondent Nos. 6 AND 7. 2. This appeal from order is directed against order passed on 24.3.2009 by the learned Civil Judge, Senior Division, Ahmednagar, rejecting application Exhibit 5 for temporary injunction filed by plaintiff in Special Civil Suit No.62 of 2008. 3. Briefly stated, it is the case of the plaintiff-appellant that he 2 had entered into agreement of sale on 25.8.1985 with respondents No. 1 to 5 in respect of sub-plot No.19 of final plot No.179 of T.P. Scheme No. 4 at Savedi, Ahmednagar city, which plot is admeasuring 185 square meters. According to the appellant, on 25.8.2005, he had paid Rs.4.00 lakhs out of total consideration of Rs.6.00 lakhs. The details of payment are given in paragraph 3 of the plaint. It is also the case of the appellant that it was agreed that remaining amount shall be paid within three months and then the sale deed was to be executed and if for some reasons sale transaction could not be completed, earnest money was to be refunded with interest at the rate of 18 per cent. 4. Thereafter,respondents No.1 to 5 represented to the appellant that they wanted to settle the accounts with co-owners and repaid Rs.2.45 lakhs to the appellant-plaintiff. It 3 was also stated that the balance amount was to be paid at the time of sale deed. Thereafter sale was demanded by the plaintiff, by issuing notice by registered post but before that on 21.8.2006, Respondent Nos. 1 to 5 had already sold suit property to Respondent Nos. 6 and 7 for Rs. 10,75,000/= and executed sale deed. The notice issued by the plaintiff- appellant to Respondents was dated 7.1.2008. None of the Respondents replied the notice and, therefore, suit for specific performance is filed by the appellant-plaintiff with application Exhibit 5 for temporary injunction preventing Defendant Nos. 6 and 7 from making any construction or creating third party rights or interest or alienating the suit property pending decision of the suit. 5. The trial court rejected application Exh.5, on the ground that certain material facts were 4 suppressed by the plaintiff. Thus, it is stated that the plaintiff did not say anything regarding deed executed on 30.5.2006 cancelling agreement of sale and suppressed the fact that he had obtained entire amount already paid and cancelled the agreement of sale and under the circumstances, it is held by trial court that the plaintiff is not entitled to any relief. Question was also raised as to why plaintiff had taken back the amount of Rs. 2,45,000/= if he really wanted to complete the transaction and purchase the land. Cancellation deed is executed on 30.5.2006 and the agreement for sale is dated 25.8.2005 whereas notice was issued by plaintiff on 7.1.2008 i.e. after three years. 6. In the reply to notice, there is a mention of deed of cancellation of agreement of sale and in spite of this reply, it is said that the 5 plaintiff did not say anything regarding execution of deed of cancellation of agreement of sale. In para 13 of its judgment, the trial court observed that the plaintiff did not come with a case that false cancellation deed was obtained from him on 30.5.2006 nor did he come with a case that any fraud was played upon him and therefore document at Exhibit 40/1 is held to be crucial and it is observed that the plaintiff has suppressed material facts from the court. 7. It is also observed by trial court, relying upon photographs of the property, that defendant Nos. 6 and 7 not only have purchased the suit plot but have also constructed a bungalow over it and only thereafter the plaintiff filed suit. It is observed by the trial curt that the plaintiff kept mum for a long time although construction was going on and only after completion of 6 construction, he filed suit and application for temporary injunction. 8. In the facts and circumstances, it cannot be said that the trial court committed any error in refusing to grant application Exhibit 5 since the construction was already over. Moreover, there was a deed cancelling the agreement of sale of which the plaintiff had knowledge prior to filing of the suit as is evident from paragraph 12 of the impugned order. 9. In the circumstances as above, there is no merit in this appeal and the same is, therefore, dismissed. 10 Before parting, I may mention that Advocate Shri V.S.Bedre has rightly submitted that throughout the order the trial court has blamed the Advocate of the plaintiff by name. Advocate is a mouthpiece of of his client and Advocate should not be blamed or held responsible for 7 whatever actions, omissions of the client and, therefore, there should not be criticism on Advocate. It is only in deserving case that such criticism is justified. I hope that the learned trial judge will take note of this and avoid in future any criticism on Advocate by name unless the conduct of the Advocate requires such comments. 11. At this stage Advocate Shri Bedre requests that hearing of the suit may be expedited. The learned Trial judge is requested to expedite the hearing. Parties shall cooperate the trial court in expeditious disposal of the suit. Date:16/09/2009 (P.R.BORKAR, J.) pnd/ao53.09