C.R. No.4434 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4434 of 2009 Date of Decision: 15.11.2010. Manjit Singh .....Petitioner Versus Kuldeep Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Arun Palli, Sr. Advocate with Mr. Sunil Garg, Advocate for the petitioner. Mr. Sumeet Mahajan, Sr. Advocate with Mr. Vaibhav Sehgal, Advocate for the respondents. L. N. MITTAL, J (ORAL) Plaintiff-Manjit Singh, having failed in both the Courts below in securing temporary injunction, has filed the instant revision petition under Article 227 of the Constitution of India to challenge the orders of the Courts below. Plaintiff-petitioner has filed suit for permanent injunction against the defendants/respondents alleging that the defendants agreed to sell the suit land measuring 12 Bighas 6 Biswans (approximately 7 ½ acres) to plaintiff and others vide agreement dated 18.08.2001 at the rate of Rs.46,50,000/- per acre and received Rs.45,00,000/- as earnest money at the time of agreement. Possession of the suit land was delivered to the plaintiff and his co- vendees, but the defendants threatened to dispossess the plaintiff and his co-vendees from the suit land and threatened to alienate the C.R. No.4434 of 2009 -2- suit land to other persons. The plaintiff sought permanent injunction and also temporary injunction during pendency of the suit against the said threatened actions of the defendants. The defendants while admitting the agreement inter alia pleaded that the agreement stands cancelled because the plaintiff and his co-vendees failed to pay the balance total sale consideration till 20.03.2003 as stipulated in the agreement. Various other pleas were also raised. It was denied that the plaintiff and his co-vendees are in possession of the suit land. Learned Trial Court vide impugned order dated 30.05.2005 (Annexure P-1) dismissed the plaintiff's application for temporary injunction. Appeal preferred against the said order by the plaintiff has been dismissed by learned Additional District Judge, Ludhiana vide impugned judgment dated 13.02.2009 Annexure P-2. Feeling aggrieved, the plaintiff has filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that it is undisputed by counsel for the parties that defendants have already executed 8 sale deeds for 5.4 acres land approximately out of the suit land in favour of plaintiff and other persons and possession thereof has also been delivered to the said vendees. Consequently, the dispute now remains regarding the remaining land a little more than 2 acres. As regards temporary injunction against alienation, in my considered opinion, ends of justice would be met if it is directed that in the event of alienation during the pendency of the suit, the defendants shall mention in the alienation deed itself about the C.R. No.4434 of 2009 -3- pendency of the suit. By this stipulation, defendants shall not suffer any harm much less loss or injury. On the other hand, the alienee would become aware of the pendency of the suit and would not be able to take the plea of being bona fide purchaser without knowledge of the pendency of the suit and it would thus protect the interest of the plaintiff-petitioner as well as the alienee. As regards temporary injunction regarding possession, it has been recited in the admitted agreement that possession of the suit land has been delivered to the prospective vendees including the plaintiff for development of colony including lying of roads etc. whereas proprietory possession shall be delivered at the time of execution of the sale deed. Consequently, prima facie, the plaintiff and his co-vendees appear to be in possession of the remaining suit land as well. Learned counsel for the respondents vehemently contended that actual physical possession of the suit land was not given to the prospective vendees at the time of agreement and at best they were made licensees by permitting them to develop the colony. The contention cannot be accepted because it is specifically recited in the agreement that possession has been delivered to the prospective vendees and only proprietory possession was stipulated to be delivered at the time of sale deeds. Even otherwise, if prospective vendees were to develop the colony by laying roads etc., obviously they could not do so without getting possession of the suit land. Learned counsel for the respondents next contended that plaintiff has filed suit for injunction only and not suit for specific C.R. No.4434 of 2009 -4- performance of the agreement. It was also contended that there were 5 prospective vendees, but only the plaintiff-petitioner has filed the suit. However, this contention has been repelled by counsel for the plaintiff-petitioner by submitting that plaintiff-petitioner moved application for amendment of plaint dated 14.06.2005 i.e just 1 ½ months after the filing of the suit and by way of amendment, the plaintiff is seeking relief of specific performance of the agreement and also all the prospective vendees are sought to be impleaded as party in the proposed amended plaint, although the said application for amendment is still pending adjudication before the trial Court. In view of this submission, the aforesaid contentions raised by counsel for the respondents also cannot be accepted at this stage to decline temporary injunction to the plaintiff-petitioner. Learned counsel for the respondents also contended that the entire sale consideration was not paid till 20.03.2003 as stipulated in the impugned agreement and consequently according to stipulation in the agreement, the agreement stood cancelled without any further notice. This contention, although apparently attractive cannot be accepted at this stage because admittedly even after 20.03.2003, some sale deeds have been executed by the defendants regarding part of the suit land in terms of the agreement itself. It would prima facie depict that the agreement did not stand cancelled on 20.03.2003. Learned counsel for the respondents also contended that interpolation has been made in the agreement regarding further payment of Rs.58 lakhs. However, even ignoring the same, as it would be adjudicated upon at the time of final decision of the suit, C.R. No.4434 of 2009 -5- prima facie the plaintiff and his co-vendees are in possession of the suit land. They also paid Rs.45,00,000/- as earnest money at the time of agreement which is to be adjusted in the last sale deed as per terms and conditions of the agreement. Consequently, the plaintiff has a very strong prima facie case for grant of temporary injunction. Balance of convenience lies in favour of the plaintiff. Obviously the plaintiff shall suffer irreparable loss and injury if temporary injunction is not granted. Impugned orders of the Courts below are patently illegal and suffer from jurisdictional error. Courts below have not exercised the discretion as per settled principles of law. For the reasons aforesaid, the instant revision petition is allowed. Impugned orders dated 30.05.2005 (Annexure P-1) passed by the trial Court and dated 13.02.2009 Annexure P-2 passed by the lower appellate Court are set aside. Plaintiff's application for temporary injunction is allowed partly restraining the defendants from interfering in possession of the plaintiff and his co-vendees over the suit land during the pendency of the suit. It is further directed that if during the pendency of the suit, the defendants alienate the suit land, the defendants shall specifically recite in the deed of alienation about the pendency of the suit. However, nothing observed hereinabove shall be construed as an expression of opinion on the merits of the suit. 15.11.2010. ( L. N. MITTAL ) A. Kaundal JUDGE