( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 21 OF 2009 WITH CIVIL APPLICATION NO. 2213 OF 2009 Nandkumar s/o. Rambhau Jadhav and ors. .. Appellants Versus Ramesh s/o. Dattatraya Raje .. Respondent Shri V.R. Dhorde, Advocate for the appellants. Shri Amit Deshpande, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 02.09.2009 P.C. :- 1. This is an appeal from order against the order passed by the III Jt. Civil Judge, Senior Division, Latur, on application Exh.5 in Special Civil Suit No. 127 of 2008 decided on 03.01.2009, whereby the application filed by the plaintiff was allowed and the defendants were restrained from ( 2 ) alienating land Block No.69 admeasuring 1 Hectare 68 R from village Varwanti, Tal. Latur, pending decision of the suit. 2. Now, it is admitted position that on 25.07.2006 the plaintiff entered into agreement of sale in respect of block no. 69 admeasuring 1 Hectare 68 R from village Varwanti for Rs. 40,95,000/- and amount of Rs. 1,31,000/- was paid as an earnest money. As per the agreement, sale-deed was to be executed on or before 25.11.2006. 3. Since the sale-deed was not executed till 25.11.2006, it is case of the present appellants that the respondent/plaintiff is not entitled to specific performance of contract and possession of land for which he has filed the suit. According to the present appellants, time was essence of contract and since there was no sale-deed till 25.11.2006, by notice published on 19.07.2008, they have cancelled the contract. Under the circumstances grant of injunction by the Trial Court was wrong. 4. On the other hand, the Trial Court noted that on the very next day of agreement of sale i.e. on 26.06.2006 the ( 3 ) land was measured and it was found that 5 R land was encroached by one Shri Khobare, the adjoining land-holder and 5 R land was already acquired for road. Therefore, the defendants/ appellants were not in a position to perform their part of the contract. Therefore, the sale-deed was not executed. The plaintiff wanted defendants to remove the encroachment and the impediments created and therefore the sale-deed was not executed as agreed before 25.11.2000. Therefore, the suit is tenable. 5. The learned advocate Shri V.R. Dhorde argued that the time was essence of the contract. It was specifically mentioned in the agreement of sale that the sale-deed was to be executed till 25.11.2006 and if no sale-deed was executed in time, the agreement would not be binding on them. He further drew my notice to public notice given in daily “Lokmat” dated 19.07.2008 whereby it is stated that the sale- deed was not executed deliberately and therefore agreement stood cancelled. The learned Civil Judge after hearing the parties came to a conclusion that the plaintiff has prima facie case; the balance of convenience is in his favour; and he would suffer irreparable loss, if injunction is not ( 4 ) granted and in the circumstances, he passed order of injunction restraining the defendants from alienating the property till decision of the suit. 6. Adv. Shri V.R. Dhorde also pointed out to me the observations made by the Trial Court in order para 12, wherein he observed as under :- “Plaintiff though not possible to show prima facie case for want of evidence, but the Court thinks it is necessary to keep the contract intact till the decision of the suit.” (sic) . Though this statement appears in the order, it is clear form the conclusion drawn in para 13, so also answers given to the points framed for determination that the Court has come to a conclusion that the plaintiff has prima facie case. Moreover, the discussion also shows that though particular time limit was laid down in the agreement for execution of sale-deed, still there were certain impediments which fact was accepted by the Trial Court. It is observed in para 9 of the order that the plaintiff on next day of contract got measured the land and found 5 R land was acquired for the road and some land was encroached by one ( 5 ) Khobare and the defendants were not in a position to perform the contract in respect of the said areas. He referred to measurement report dated 07.06.2007, which was produced along with list Exh.4. It was argued that the plaintiff cannot ask for part performance. 7. Considering the facts and circumstances of the case, in my opinion, the order passed by the Trial Court cannot be said to be illegal and improper. It will have to be considered while deciding the suit if the plaintiff would be entitled to any equities in respect of portion of the land acquired for the road and what should be done in respect of encroachment made by Shri Khobare. At this interim stage, considering the facts and circumstances of the case, in my opinion, this is not a case wherein interference with the order passed by the Trial Court is required. Moreover, even if such injunction were not to be granted, the purchasers from the present appellants/defendants would be bound by doctrine of lis pendens. So, in that point of view, in cannot be said that the balance of convenience is any way in favour of the defendants. No emergency to allow sale of land pending suit is pointed out. In the facts and circumstances ( 6 ) of the case, the appeal from order is dismissed. 8. In view of dismissal of this appeal from order, Civil Application No. 2213 of 2009 does not survive. The Civil Application also stands disposed of. [P.R. BORKAR,J.] snk/2009/SEP09/ao21.09