Rule made returnable forthwith. Heard finally, by consent of the learned Counsel appearing for the parties.

2. The Appellant-original Plaintiff has challenged order dated 8.8.2011 passed by the 3rd Joint Civil Judge, Senior Division, Pune, whereby his Application for temporary injunction is rejected for a performance of the contract based upon an oral agreement of the year 2007 of the property in question.

3. The Respondent-Defendant, based upon the registered Will dated 21.3.1989, claimed to be the owner and therefore entered into oral agreement and accordingly received the sum of Rs.1,11,000/- as recorded by the learned Judge out of the total consideration more than Rs.1,25,00,000/. The oral contract was terminated and therefore the suit.

4. Mere objection by the legal heirs to transfer the property itself not sufficient to overlook the executed registered Will, based upon which the Defendant agreed to sell it. The learned Judge, however, overlooked the same and considered the objections at the instance of the Respondent that the other legal heirs of Smt.Kersi Phiroze Noble not brought on record and unless decided exclusive ownership of the Respondent, the protection so cited cannot be granted, in my view is also incorrect approach. The Respondent-Defendant himself is at this stage, cannot be permitted to raise this objection, in view of his own case of the ownership of the property, which he agreed to transfer/sell to the Appellant, based upon which the registered will, which is admittedly intact till this date. The legal heirs' right, if any, unless adjudicated in the proceeding which they could initiate in accordance with law, for the purpose of present proceedings at this stage, the admitted facts need to be respected. The burden therefore wrongly put up on the Appellant and refused to grant the interim protection to the Appellant. Specifically when the Defendant is not denying the oral agreement between the parties.

5. The agreement's obligation could not be fulfilled; and who committed default is the issue when the Appellant averred that always ready and willing to perform his part of the contract. The Defendant's case is that the Appellant failed to perform the obligations within stipulated period and therefore terminated the contract. Who has committed the breach so far as their respective obligations are concerned, is again a matter of trial. But the fact of termination of the alleged oral contract itself confirms the case of the Appellant that there existed the agreement between the parties in respect of the property in question.

6. There is no dispute that such oral agreement is enforcible in law. The conclusion of the same even subject to the permission from the competent authority and many other compliances, just cannot be overlooked though the averments revolving around the objection of the legal heirs and non-rejoinder as party raised by the Defendant/Respondent only, in the present case.

7. The learned Counsel appearing for the Appellant makes statement which is not in dispute that pending rejection of the injunction Application Exhibit-5, the Court has granted interim protection. This Court has also granted interim protection on 21.11.2011. The same protection has been in force till this date. Therefore, considering the totality of the matter, I am inclined to observe that the interim order so passed by this Court on 21.11.2011 and lastly directed to be continued on 21.6.2013 need to be continued, pending the disposal of the suit. The impugned order therefore is accordingly quashed and set aside. The Application for temporary injunction is granted.

8. The learned Counsel appearing for the Appellant has cited the judgment of the Apex Court in the case of Saradmani Kandappan Vs. S. Rajalakshmi & Ors.[(2001) 12 SCC 18] and contended that the time is always the essence of such contract and therefore there was no expressed willingness and/or steps taken by the Appellant in theme, therefore the cont