1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1193 OF 2008 WITH CIVIL APPLICATION NO.1451 OF 2008 Maruti Balwant Patil and anr. : Appellants versus Rajaram Vasant Tawade & anr. : Respondents. Shri N V Walawalkar, Senior Counsel, i/by Shri S S Patwardhan for the Appellants. Shri N V Bandiwadekar for the Respondent Nos.1 and 2. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 25, 2009 P.C. 1. This Appeal takes exception to the order dated 17/9/2008 passed by the 4th Jt. Civil Judge, Senior Division, Kolhapur by which order Application Exhibit-5 filed by the Appellants/Plaintiffs came to be rejected. 2. The Appellants, who are the original Plaintiffs, have filed 2 Special Civil Suit No.125 of 2007 for specific performance of the agreement for sale dated 24.11.1998 of land admeasuring 2 Hector and 40 Ares being the undivided share of the Defendant Nos.1 and 2. The consideration amount mentioned in the said Agreement of Sale was Rs.Ten lakhs out of which the Plaintiffs have paid an amount of Rs.Two lakhs. Since the suit land was Inam land, it was necessary to obtain certain permissions and, therefore, the remaining amount was to be paid at the time of execution of the sale deed. 3. It appears that one Mahalaxmi Co-operative Housing Society had filed a suit in respect of the suit property being R.C.S. No.491 of 1995 and the said suit was pending when the said Agreement for Sale was entered into between the Plaintiffs and the Defendant Nos.1 and 2. Therefore, the parties again on 22/11/1999 entered into a supplementary agreement and agreed to execute the sale deed of the suit property after the decision of the said RCS 491 of 1995. The said RCS No.491 of 1995 was decided in favour of the Defendant Nos.1 and 2 on 23/01/2006 and, in terms of the supplementary agreement the Defendants were to execute the sale 3 deed within four months of the decision in the said suit. It is the case of the Plaintiffs that they called upon the Defendant on 15/3/2007 by visiting them and requesting them to execute the sale deed. On refusal of the Defendants to execute the sale deed, the Plaintiffs have filed the Spl. Civil suit No.125 of 2007 for specific performance and also filed application Exhibit 5 for temporary injunction restraining the Defendants from creating third party interest and also from alienating the suit property. 4. The Defendants filed their reply to the said Application for temporary injunction Exhibit-5. It is the case of the Defendants in the said reply that the said RCS No.491 of 1995 filed by the said Mahalaxmi Co-op. Housing Society was decided in the month of January 2006 and thereafter the Defendants have entered into the development agreement on 10/8/2006 in favour of the developer one Sachin Shamrao Jadhav. The said development agreement has been entered into for a total consideration of Rs.20 lakhs and that the developer is at present in possession of the suit property. It is further the case of the Defendants that they have also executed irrevocable 4 power of attorney in favour of the said developer and in the said circumstances the reliefs prayed for by the Plaintiffs could not be granted. 5. The said Application Exhibit 5 for temporary injunction was considered by the trial Court and by the impugned order dated 17/9/2008 the said Application came to be rejected. The trial Court whilst rejecting the said Application for temporary injunction inter-alia took into consideration the aspect of the conduct of the Plaintiffs as also the development agreement executed by the Defendants in favour of the developer Sachin Jadhav. As regards the conduct of the Plaintiffs, the trial Court took into consideration the fact that though the said RCS No.491 of 1995 was decided on 23/1/2006, the Plaintiffs have filed the present suit on 26/3/2007 along with the Application for temporary injunction and though the Defendants had filed their say on 16/4/2007, the Plaintiffs were absent on 6/6/2007 when the said Application Exhibit-5 had come up for hearing and the said Application therefore had to be adjourned on account of the absence of the Plaintiffs. The trial Court also took into consideration the fact 5 that though the Plaintiffs were aware of the development agreement entered into by the Defendants with the developer Sachin Jadhav on 10/8/2006, the said Application Exhibit-5 was not persuaded by them and only after the developer had invested a substantial amount that the said Application was moved. The trial Court was, therefore, of the view that the Plaintiffs waited for more than one year before filing the said suit and, therefore, were not entitled to the discretionary relief of injunction. The trial Court also took into consideration the fact that the Plaintiffs have alternatively prayed for compensation to the tune of Rs.one lakh and, therefore, the trial Court was of the view that the relief by way of injunction was not warranted in the facts and circumstances of the case. 6. The trial Court also took into consideration the fact that the First Appeal filed by the said Mahalaxmi Co-operative Housing Society against the decree passed in the RCS No.491 of 1995, a learned Single Judge of this Court had refused to grant any interim reliefs as the Defendants herein who are the Respondents in the said First Appeal had already on 10/8/2006 entered into the said 6 development agreement with the said Sachin Jadhav and, thereby created third party interest. 7. Having considered the reasons cited by the trial Court in refusing to grant the relief of temporary injunction, in my view, the said order does not call for any interference in the above Appeal. The above Appeal is accordingly dismissed. 8. In view of the dismissal of the above Appeal from Order, the Civil Application No.1451 of 2008 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]