ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the order dated

8.3.2019 passed by learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural) in Special Civil Suit No. 92 of

2018 below Exh-5 whereby the interim injunction filed by the present Appellant- plaintiff came to be rejected by the trial Court, the original plaintiff has preferred this Appeal from Order under Order 43 Rule 1(r) of the CPC.

2. For the brevity and convenience, the parties are referred to in this order as per the character assigned to them in the trial Court i.e. plaintiff and defendant.

3. The brief facts of the case of the plaintiff is that there was an agreement to sell between it and the defendant No.1 for the land bearing Khata No.883 paiki, Revenue Survey No. 157/1/1/ paiki- T.P. Scheme No.18 (Ghatlodiya), Final Plot No. 112, admeasuring 1059 sq. mtrs of land, which is an old tenure land. That there was an agreement to sell executed on 22.10.1997 and thereafter possession of the land was handed over to the plaintiff vide Notarised document dated 25.10.2004. According to the plaintiff, there was a condition to get the title cleared and then necessary registered sale deed was to be executed between the parties. It is the case of the plaintiff that as there was litigation regarding the title of the property, though part payment of the said transaction was paid to the defendant and possession was handed over to the plaintiff by the defendant No.1, the defendant No.1 did not executed the sale-deed. That after clearance of title, instead of executing the sale-deed in favour of the plaintiff, the defendant No.1 has executed a registered sale deed in favour of respondent Nos. 2 to 5. In that view of the matter, the plaintiff has filed the aforesaid Special Civil Suit No. 92 of 2018 for specific performance of the Contract with an alternative prayer for compensation in terms of Rs. 3 Crore. Along with the plaint, the plaintiff has also filed an application at Exh-5 for interim injunction for restraining the defendant from creating any third party interest or dealing with the property or transferring to any other third party. The same came to be rejected by the trial Court by the impugned order.

4. Heard Ms. Sejal Mandavia, learned advocate for the appellant, Mr. Pathik M. Acharya, learned advocate for the defendant No.1 and Ms. Trusha Patel, learned advocate for the defendant Nos. 2 to 5 at length. Perused the material placed on record and decision cited at bar.

5. Ms. Sejal Mandavia, learned advocate for the plaintiff-

appellant has vehemently submitted that there is no dispute regarding the execution of agreement to sale between the plaintiff and defendant No.1. She has submitted that at the relevant time part payment was paid to the defendant No.1 by the Society and after title clearance, the defendant No.1 had to execute the sale-deed in favour of the plaintiff. She has also submitted that in the year 2004, a document was executed before the Notary handing over the possession of the land in question to the plaintiff- Society. She has submitted that since title was not cleared, there was no execution of the sale-deed, but, as soon as order came to be passed by revenue authority, in a disputed case of revenue entry pertaining to the suit land, the defendant No.1, instead of executing the registered sale-deed in favour of the plaintiff, has executed the sale deed in favour of respondent Nos. 2 to 5. She has submitted that the defendant No.1 in written statement has only raised plea regarding limitation. However, according to Ms. Mandaliya, learned advocate for the plaintiff, since there is a transaction in respect of immovable property, time cannot be considered as essence of the Contract. She has also submitted that since there was cloud over the title of the defendant No.1, the sale- deed could not be executed and, therefore, the condition of need to execute requisite sale deed in 9 months, must be read from the date of the title clearance of the defe