C.R.No.7891 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7891 of 2011 Date of decision: 20.12.2011 Shaminder Singh . .. Petitioner Versus Surjeet Singh and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. V.K.Shukla, Advocate for the petitioner. Ajay Kumar Mittal,J. 1. Defendant No.1-petitioner has approached this Court seeking setting aside of order dated 3.11.2011, Annexure P.2 passed by the Additional District Judge, Moga, whereby an application filed by plaintiff-respondent Nos.1 and 2 under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure (in short, “the Code”) has been allowed and defendants have been restrained from alienating, transferring or disposing of the suit property except in due course of law till the decision of the case. 2. Brief facts as narrated in the petition may be noticed. Plaintiff-respondent Nos. 1 and 2 filed a suit for possession as owner 1 C.R.No.7891 of 2011 by way of specific performance of agreement of sale dated 8.2.2006 allegedly executed by the petitioner in their favour in respect of land measuring 52 kanals 13 marlas and in the alternative a suit for recovery of Rs.34 lacs on account of alleged earnest money and compensation/damages etc. The petitioner filed his written statement alleging that in view of the agreement, the stipulated date for execution of sale deed was 30.11.2006. On the said date, the petitioner came present before the Sub Registrar for execution of sale deed but respondent Nos. 1 and 2 did not come present and as a result, the alleged agreement stood rescinded and the earnest money was forfeited. According to the petitioner, there was no extension of time of the agreement for execution of the sale deed. The respondent Nos. 1 and 2 filed the suit and an application under Order 39 Rules 1 and 2 of the Code seeking an interim injunction restraining the petitioner from alienating, transferring or disposing of the suit land. The application was contested by the petitioner by filing reply. The trial court after hearing the parties dismissed the said application. However, on appeal, the lower appellate authority has reversed the order. Hence this revision petition. 3. Learned counsel for the petitioner submitted that on 30.11.2006, defendant No.1 was present in the office of the Sub Registrar for execution of the sale deed and it was the plaintiffs who did not turn up and it was on that account that the agreement stood rescinded and the earnest money was forfeited. It was in such circumstances that the suit filed by the plaintiffs for specific performance of agreement dated 8.2.2006 was not maintainable. The 2 C.R.No.7891 of 2011 lower appellate court had erred in granting interim injunction to the plaintiffs. 4. After hearing learned counsel for the petitioner, I do not find any merit in the revision petition. 5. The lower appellate Court after noticing the facts came to the conclusion that defendant No.1 had admitted the execution of the agreement of sale dated 8.2.2006 in favour of plaintiffs and had received Rs.12 lakhs from the plaintiffs. It was further observed that in order to avoid multiplicity of litigation, it was essential to pass ad interim injunction against defendant No.1. The observations of the lower appellate court are as under:- “9. The trial court has held that rate of land settled between the plaintiffs and defendants No.1 was Rs.11 lacs per acre whereas it was Rs.12 lacs per acre between the plaintiff and defendant No.2. In this way, there was chance of profit of about Rs.12.5 lacs whereas they have already received Rs.30 lacs from defendant No.2. It was held that the plaintiffs entered into agreement with defendant No.2 without taking defendant No.1 into confidence and there is no privity of contract between defendants No.1 and 2. But I do not feel inclined to agree with the findings given by the learned trial court. In the written statement filed by defendant No.1 he has admitted that he entered into an agreement with the plaintiffs and received Rs.12 lacs from the plaintiffs when he entered into agreement dated 8.2.2006. He has taken plea that he has not received Rs.5 lacs from the plaintiffs on 1.12.2006 and the earnest money which was paid by the plaintiffs to defendant No.1 stands forfeited as they had not come for execution of the sale deed as per the terms and conditions of the agreement. He has also admitted that the plaintiffs got executed sale 3 C.R.No.7891 of 2011 deed dated 10.11.2006 from defendant No.1 in favour of defendant No.2 in respect of land measuring 48 kanals 2 marlas of land out of the suit land and said sale deed was got registered by defendant No.2 by mentioning the sale price Rs.18 lacs and has also admitted that the plaintiffs deposited an amount of Rs.57 lacs in account of defendant No.1 and total sale consideration amount was Rs.66,13,750/-. So in view of the above said averments made in written statement of defendant No.1, the trial court has wrongly held that the plaintiffs entered into an agreement with defendant No.2 without taking defendant No.1 into confidence. So, when defendant No.1 executed the sale deed in favour of defendant No.2 as per terms and conditions of the agreement so, it cannot be said that he was not in knowledge of the facts and there was no privity of contract between defendants No.1 and 2. Moreover, the respective pleas of the parties are a matter of evidence and the parties are yet to lead the cogent evidence to prove their pleas. At this stage, a prima facie case is made out in favour of the plaintiff. Balance of convenience is also in their favour and they are likely to suffer irreparable loss if the injunction as prayed for is not granted. Reliance can be placed upon Satwinder Singh and others v. Swaran Singh and another, 2008(4) RCR (Civil) 434 wherein it was held that fraud has to be proved by way of positive evidence and beyond reasonable doubt. When prospective vendee having paid substantial amount of consideration under the agreement to sell has a prima facie case for grant of injunction in his favour restraining the vendor from alienating the property to anyone else. Reliance can also be placed upon Rita Toor v. Logical Developers Pvt. Limited 2010 (2) Civil court Cases 616 (P&H) wherein it was held that when in a suit for specific performance substantial amount as earnest money already paid, temporary injunction cannot be declined on the basis that alienation 4 C.R.No.7891 of 2011 will be subject to law of lis pendens. The Hon’ble Apex Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass 2005(1) Civil Court Cases 430 (SC) has held that temporary injunction cannot be declined on the basis that alienation will be subject to law of lis pendens unless and until a case of irreparable loss or damage is made out by a party to the suit, Court should not permit the nature of property being changed which also includes alienation or transfer of property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.” 6. No illegality or perversity could be pointed out in the impugned order warranting interference by this Court under Article 227 of the constitution of India. 7. Finding no merit in the revision petition, the same is dismissed. However, the trial court shall make sincere efforts for expeditious disposal of the suit. December 20, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 5