JUDGMENT :

1. By way of this appeal from order under O.43 R.1(r) of the Civil Procedure Code, 1908 (CPC), the appellant seeks to challenge an order dated 26.02.2020, passed below application exh. 5 in Special Civil Suit No. 34 of 2018 by the learned Additional Senior Civil Judge, Sanad by which, the learned trial Judge was pleased to reject the said exh. 5 application for interim injunction under O.39 R. 1 and 2 of the CPC.

2. Admit. Learned advocate Mr. Manish Shah waives service for the respondent.

3. Facts in nutshell of the case of the appellant is that the appellant is the original plaintiff in aforesaid Special Civil Suit No. 34 of 2018, which is filed for specific performance of an agreement to sell (Banakhat) dated 09.10.2006 and to handover the possession of the suit land by accepting the outstanding consideration from the appellant – plaintiff. Alternatively, it is prayed to direct the respondent – defendant to refund the part payment of Rs.65 lakh made by the appellant – plaintiff with interest @ 18% p.a. thereon as well as to pay difference amount as per market value on the date on which the suit is finally decided, in case if the Court comes to a conclusion that specific performance of the agreement to sell in question cannot be granted. It is also prayed to grant declaration and permanent injunction directing the respondent – original not to sale, alienate and/or transfer in any manner the suit property or create any encumbrance thereon.

3.1 It is the case of the appellant – plaintiff in the suit that the respondent – defendant had executed an agreement to sell in favour of the plaintiff for the land bearing revenue survey Nos. 10/1 and 17/1 paiki 6565 sq. mtr. of land for a consideration of Rs.90 lakh on 09.10.2006 in presence of some witnesses. It is further the case of the appellant – plaintiff that out of total sale consideration of Rs.90 lakh, the appellant – plaintiff has already paid an amount of Rs.65 lakh in cash to the respondent – defendant, which was accepted by the respondent – defendant. It is further the case of the appellant – plaintiff that a stamp paper for such an agreement to sell was also purchased by the respondent – defendant, wherein, his status is reflected as seller. That, it was agreed that the respondent – defendant shall divide his share of land and after getting done necessary mutation entry in 7/12 extracts as well as taking necessary permissions, and after completing necessary formalities and fulfilling the conditions of the agreement to sell, execute the sale deed in favour of the present appellant within a period of three years from getting the Title Clearance Certificate. However, since the respondent – defendant did not act upon the said agreement to sell, eventually, the appellant – plaintiff constrained to file the suit in question with aforesaid prayers. In the said suit, the appellant – plaintiff filed an application for interim injunction vide exh. 5, which came to be rejected by impugned order and hence, this appeal.

4. Heard, learned advocate Mr. Prabhav Mehta for the appellant - plaintiff and learned advocate Mr. Manish Shah for the respondent – defendant through video conference.

4.1 The learned advocate for the appellant – plaintiff has vehemently and fervently argued that in the present case, the issue is in very narrow compass i.e. with regard to rejection of interim injunction application, exh. 5 mainly on the ground of non-registration of the agreement to sell, which has driven the equity Court not to exercise discretion, which is unjust and not proper and against the settled principles of law. It is submitted that the learned trial Judge has erred in observing that in view of alternate prayer to refund the amount of Rs.65 lakh with interest, there is no need to grant interim injunction application under O.39 R. 1 and 2 of the CPC, which is contrary to the settled legal position as well as against the tenor of Section 21 of the Specific Relief Act, 1963.

4.2 The learned