C. R. No. 5857 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 5857 of 2009 Date of Decision : January 25, 2010 Iqbal Singh and others .... Petitioners Vs. Karan Podar and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. J. S. Chahal, Advocate for the petitioners. Mr. Anil Chawla, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Defendants have filed the instant revision petition under Article 227 of the Constitution of India for quashing order dated 15.09.2008 (Annexure P-9) passed by learned Additional Civil Judge (Senior Division), Amritsar, thereby directing both the parties to maintain status quo regarding alienation of suit property till final disposal of the suit, on application moved by respondents-plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short – CPC) and also assailing judgment dated 16.03.2009 (Annexure P-10), passed by learned Additional District Judge, Amritsar, thereby dismissing the appeal preferred by defendants against order Annexure P-9. Plaintiffs filed suit for possession of suit land by specific C. R. No. 5857 of 2009 2 performance of agreement to sell dated 20.03.2006. It is undisputed that defendant no.1 himself and as attorney of his sons defendants no.2 and 3 agreed to sell 103 kanals 6 marlas suit land to the plaintiffs @ Rs.47 lacs per acre and received Rs.1 crore as earnest money from the plaintiffs. Sale deed was to be executed up to 15.04.2007. Possession of the suit land was to be delivered to the vendees/plaintiffs at the time of execution/registration of sale deed. However, the suit land was also leased out to the plaintiffs for one year vide the same agreement and lease money was also received by the defendants. Plaintiffs' case is that on 15.04.2007 i.e. the date fixed for execution of sale deed was a holiday. Accordingly, on 16.04.2007, plaintiffs went to the office of Sub Registrar along with balance sale consideration and requisite amount for expenses of sale deed for getting the sale deed executed and registered as per agreement, but the defendants did not turn up. It is also pleaded that in November 2007, the defendants forcibly dispossessed the plaintiffs from the suit land. Defendants' version is that on 16.04.2007, they went to the office of Sub Registrar to execute the sale deed as per agreement, but the plaintiffs did not turn up. The defendants got their presence recorded. However, still the defendants waited thereafter till 05:00 P.M. i.e. time of closing of the office and again moved application. The plaintiffs turned up, but did not have the requisite amount. Even thereafter, the defendants served notice dated 23.04.2007 by registered post on the plaintiffs to get the sale deed executed and registered as per agreement, but the plaintiffs failed to do so. Plaintiffs, along with plaint, moved application seeking temporary injunction restraining the defendants from alienating the suit land till final disposal of the suit. Learned trial court, vide impugned order (Annexure P-9), directed both the parties to maintain status quo regarding alienation of the suit land. C. R. No. 5857 of 2009 3 Appeal preferred by the defendants against the said order Annexure P-9 has been dismissed by learned Additional District Judge, Amritsar vide judgment dated 16.03.2009 (Annexure P-10). I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that the plaintiffs themselves failed to perform their part of agreement and therefore, they are not entitled to any interim relief. It was also contended that on the basis of agreement alone, injunction against alienation could not be granted against the defendants-petitioners. On the other hand, learned counsel for the respondents contended that plaintiffs-respondents have always been ready and willing to perform their part of agreement and the plaintiffs have paid Rs.1 crore to the defendants as earnest money and the rights to the plaintiffs cannot be defeated by permitting the defendants to alienate the suit land during pendency of the suit. It was also contended that as authorized under the impugned agreement (Annexure P-1), the defendants have already entered into further agreements to sell the suit land to different persons. I have carefully considered the rival contentions. Perusal of the record reveals that plaintiff-respondent no.1 affirmed affidavit (Annexure P-3) regarding his presence before the Sub Registrar on 16.04.2007. However, perusal of the said affidavit reveals that plaintiff no.1 did not even mention in the said affidavit that he had brought the requisite amount for getting the sale deed executed and registered as per agreement. On the other hand, defendant no.1 was also present before the Sub Registrar on 16.04.2007 and affirmed affidavit (Annexure P-2) regarding his presence and readiness and willingness to execute the sale deed as per agreement. Thereafter, defendant no.1 moved another application (Annexure P-4) regarding his presence before the Sub Registrar. There is endorsement of Sub Registrar thereon made at 05:00 P.M. on C. R. No. 5857 of 2009 4 16.04.2007 regarding presence of applicant-defendant no.1 and his readiness to execute the document. It has further been noticed by the Sub Registrar in his endorsement that purchaser has not shown the transaction money required. It would prima facie depict that plaintiffs were not ready with the requisite amount to get the sale deed executed and registered as per agreement. This explains omission in affidavit (Annexure P-3) affirmed by plaintiff no.1 regarding requisite amount being with him. In addition to the aforesaid, the defendants even served notice dated 23.04.2007 by registered post on plaintiffs to get the sale deed executed and registered as per agreement. However, inspite thereof, needful was not done by the plaintiffs. The plaintiffs have alleged that they were forcibly dispossessed by defendants in November 2007. However, inspite thereof, the plaintiffs did not file the suit immediately, but filed the same iin April 2008 i.e. after waiting for another five months. Even before November 2007, the plaintiffs did not file the suit after the defendants had allegedly failed to execute the sale deed in April 2007. As regards contention raised by learned counsel for the plaintiffs that the plaintiffs have entered into further agreements to sell the suit land, there is no such plea in the plaint (Annexure P-5) instituted by the plaintiffs. Even otherwise, even if the plaintiffs have entered into the other agreements, it would not help the plaintiffs. Learned counsel for the petitioners has relied on three judgments of this Court in the cases of Sarup Singh and others vs. Nirmal Singh reported as 1997 (2) P. L. R. 91, Gulab Rai vs. Atam Singh reported as 1998 (2) P. L. R. 101 and Man Singh and another vs. H. S. Kohli and others reported as 1997 (1) CLJ (C, Cr & Rev) 123, wherein it was held that temporary injunction against alienation should not be granted merely on the basis of agreement. No judgment to the contrary has been cited. In view of the aforesaid, I am satisfied that no prima facie case C. R. No. 5857 of 2009 5 for grant of temporary injunction in favour of the plaintiffs is made out. However, nevertheless, since plaintiffs have advanced huge amount of Rs.1 crore as earnest money to the defendants, some direction is required to be issued to the defendants to protect the interest of the plaintiffs. In my considered opinion, ends of justice would be served if the defendants are directed to inform the prospective alienees about the pendency of the suit so that the alienees may not take the plea of being bona fide transferees. That would serve the interest of plaintiffs. The alienation would be hit by doctrine of lis pendens and the alienees would not be able to take the plea of being bona fide transferees without notice of the suit. In view of the aforesaid, the instant revision petition is allowed. Impugned order dated 15.09.2008 (Annexure P-9) passed by the trial court and impugned judgment dated 16.03.2009 passed by the Appellate Court are set aside and application moved by the plaintiffs for temporary injunction is dismissed, subject to direction that in case the defendants alienate the suit land during the pendency of the suit, the defendants shall specifically recite in the deed of alienation about the pendency of the suit. Whenever the petitioners enter into agreement or execute any registered deed regarding alienation of the suit land during pendency of the suit, the petitioners shall, within one week thereof, intimate the trial court in writing and shall furnish copy of agreement along with the intimation and copy of sale deed whenever available, at the earliest. Nothing observed herein above, however, shall be construed as an expression of opinion on the merits of the suit. January 25, 2010 ( L. N. MITTAL ) monika JUDGE