Civil Revision No. 3730 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 3730 of 2008 Date of decision: 6.7.2009 Tej Ram ......petitioner Versus Pinku and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Shailendra Jain, Advocate. for the petitioner. Mr.Babbar Bhan, Advocate, for respondent Nos. 1 to 3. Mr. Sanjay Mittal, Advocate, for respondent Nos. 4 to 6. **** SABINA, J. Plaintiff-Tej Ram filed a suit for possession by way of specific performance of agreement to sell. Along with the suit, an application under Order 39 Rule 1 and 2 of the Civil Procedure Code ('CPC' for short) was also filed. Vide order dated 14.11.2007 (Annexure P-11), the Civil Judge (Junior Division), Rewar, restrained Civil Revision No. 3730 of 2008 2 defendant Nos. 4 to 6 from changing nature of the suit property by any means including the alienation. Defendant Nos. 4 to 6 filed an appeal and the learned District Judge, Rewari, vide order dated 31.5.2008 (Annexure P-12), while allowing the appeal, dismissed the application for temporary injunction. Hence, the present revision petition under Article 227 of the Constitution of India for setting aside the impugned order Annexure P-12. The case of the parties, as noticed by the learned District Judge, Rewari in para Nos. 2 to 4 of the impugned order, reads as under:- “2. Defendants No. 1 to 3 are owners in possession of the agricultural land measuring 21 kanals situated in the revenue estate of village Gokalagarh, Tehsil and District Rewari, property detailed in paragraphs No. 1 and 2 of the plaint with reference to the jamabandi for the year 2000-2002 (heareinafter referred to as 'the suit land'). Defendants No. 1 and 2 entered into an agreement to sell the suit land in favour of the plaintiff on 13.6.2005 for a consideration of Rs. Seven lacs per acre. The terms of the agreement were reduced to writing. Defendant No.3 had executed the agreement on behalf of her son defendant No.2. A sum of Rs. 1,85,000/- was received as earnest money from the plaintiff. Defendant No.1 and 3 executed another agreement on 29.6.2005 confirming the Civil Revision No. 3730 of 2008 3 agreement dated 13.6.2005 and received thereunder an additional amount of Rs.one lac from the plaintiff, making the total earnest money paid as Rs.2,85,000/-. It was further agreed that Smt.Krishana Devi, defendant No.2 shall obtain permission of the court for sale of the share of her minor son Pappu and that after obtaining that certificate, she would inform the plaintiff by registered post and would execute the sale deed in terms of the agreement within one month of obtaining the said certificate. Smt.Krishana Devi had obtained the permission of the court to sell the share of her minor son Pappu on 13.1.2006. Defendant failed to inform the plaintiff in this regard. The plaintiff approached defendant No. 1 and 3 on 15.2.2006 for finding out if the certificate had been obtained. Defendant No.1 and 2 had handed over a photocopy of the said certificate to the plaintiff. After going through the same, the plaintiff requested the defendants to execute the sale deed in terms of the agreement dated 13.6.2005 and 29.6.2005, but they declined to do so for the reason that the price of the land had increased by that time. The defendants also threatened the plaintiff of selling the suit land to some other person at a higher rate. The plaintiff has always been ready and willing to perform his part of the contract. Civil Revision No. 3730 of 2008 4 Defendants did not execute the sale deed despite the registered notice given by the plaintiff to them through his counsel. The plaintiff reached the office of the Sub Registrar, Rewari for execution and registration of the sale deed on 17.2.2006 and 20.2.2006 and got his affidavit attested on those dates. Through, in the legal notice the plaintiff called upon the defendants to execute the sale deed on 17.3.2006, yet on refusal of the defendants on 21.2.2006 to execute the sale deed and the threat given by them to execute the sale deed in favour of some other person, he has brought the suit as well as the application. 3. Defendants No. 1 to 3 have resisted the suit. Besides denying the maintainability of the suit in the present form and taking various other preliminary objections, defendants No.1 and 2 have denined having entered into any agreement of sale with the plaintiff on 4.6.2005. They have claimed that in fact a sin of Rs.2,85,000/- was advanced by Raghubir Singh son of Prithpal Singh resident of village Samaspur to the defendants as loan and the suit land was mortgaged with Raghubir Singh to secure the loan. It is claimed that a paper was got signed from the defendants and if the same is converted into an agreement dated Civil Revision No. 3730 of 2008 5 13.6.2005, the answering defendants are not bound by the same. They have even denied having signed any paper on 29.6.2005 also. It is claimed that Raghubir Singh had obtained their signatures on many blank papers and agreement dated 29.6.2005 might have been created on one of those papers. It is claimed that there was no question of the answering defendants executing a sale deed because there was no agreement to sell executed by them in favour of the plaintiff. The plea of the plaintiff being ready and willing to perform his part of the contract is also replied in the same manner. It is claimed that the defendants have been the absolute owners of the suit land except for the charges for Rs.2,85,000/-. As in the meanwhile, defendant No.4 to 6 had been added to the array of the defendants in whose favour defendants No.1 to 3 are claimed to have executed the sale deed in respect of the suit land, defendant No. 1 to 3 have claimed that they have been cheated by defendants No. 4 to 6 also. It is claimed that no sale deed was executed by defendants No. 1 to 3 in their favour. It is also alleged that the agreement was fabricated in the back date. It is claimed that they had evil eye on the land of the answering defendants, which has a prime location. It is Civil Revision No. 3730 of 2008 6 further averred that when the defendants did not agree to sell the land to the plaintiff, there was no question of their sending information about obtaining the permission tot sell the land of the minor. It is also claimed that the story about the guardianship is also fabricated. Raghubir Singh tot the signatures of Krishna Devi on the pretext of renewal of mortgage papers. Proceedings initiated in this regard were not the conscious act of defendant No.2. Handing over a photocopy of the certificate issued by the Court to the plaintiff is also denied. Link between the plaintiff and the answering defendants is denied and the suit as well as the application filed by the plaintiff as well as the claim of defendants No.4 to 6 are prayed to be dismissed. 4. Defendants No. 4 to 6 have also filed written statement as well as to the application. The suit is claimed to have been filed in collusion with defendants No.1 to 3. It is averred that defendants No.1 to 3 had entered into an agreement of sale dated 16.1.2004 regarding the suit land in favour of the answering defendants. Defendant No.3 was minor on that date and defendants No. 1 and 2 had agreed to execute the sale deed after getting permission from the court to sell the land of her Civil Revision No. 3730 of 2008 7 minor son. She filed the proceedings in this regard in which the necessary permission was granted vide order dated 13.2.2006 and defendants No. 1 to 3 had executed sale deed on 24.2.2006 in respect of the suit land in favour of the answering defendants. It is averred that defendants No. 1 to 3 had no right to enter into an agreement of sale in favour of the plaintiff on 13.6.2005. They have claimed themselves to be owners of the suit land by way of purchase of valuable consideration without notice regarding the agreement of sale dated 13.6.2005. The averments regarding the execution of agreements on 13.6.2005 and 29.6.2005 and receiving Rs.1,85,000/- and 1,00,000/- under those agreement are denied to be true. The plaintiff is denied to have any right to get the sale deed executed relating to the suit land in his favour. The suit as well as the application are prayed to be dismissed.” Learned counsel for the petitioner has submitted that the Appellate Court had erred in dismissing the application for interim injunction. In case construction is raised over the property in dispute, the petitioner would suffer an irreparable loss. Learned counsel for the respondents, on the other hand, have submitted that defendants No. 4 to 6 had purchased the suit property from defendants No. 1 to 3 on the basis of an agreement to Civil Revision No. 3730 of 2008 8 sell dated 16.1.2004, which was executed much prior to the agreements dated 13.6.2005 and 29.6.2005. Hence, the defendants No. 4 to 6, who were bona fide purchasers, were entitled to enjoy the property in dispute in the manner they liked. Plaintiff in the present case has based his claim on agreements to sell dated 13.6.2005 and 29.6.2005. As per the plaintiff, he had paid Rs.1,85,000/- and Rs.1,00,000/- respectively at the time of execution of the agreements to sell. Defendants No. 1 to 3, however, got registered a sale deed in favour of defendants No. 4 to 6 after two days of the filing of the present suit. The agreement to sell dated 16.1.2004, on the basis of which sale deed was executed in favour defendants No. 4 to 6 on 24.2.2006, was a fabricated document. The case of the defendants No. 4 to 6, on the other hand, is that they were bona fide purchasers of the suit property for valuable consideration. The sale deed had been executed in their favour on the basis of agreement to sell dated 16.1.2004. The Courts below, while granting relief of interim injunction, are required to see as to whether the plaintiff has a prima facie case and balance of convenience in his favour and in case the interim injunction is not granted, the plaintiff would suffer an irreparable loss. As per Section 115 of the Code of Civil Procedure (for short 'CPC'), this Court shall not vary or reverse any decree or order against which an appeal lies either to this Court or to any Court Civil Revision No. 3730 of 2008 9 subordinate to this Court. However, an order passed under Order 39 Rule 1 and 2 CPC can be challenged in this Court by invoking the power of superintendence under Article 227 of the Constitution of India. The paramount consideration would be in paving the path of justice and removing any obstacles therein. Such power can be exercised when a subordinate Court has assumed jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby. Thus, wherever the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of provisions of law and a grave injustice or gross failure of justice has occasioned thereby, interference by this Court under Article 227 of the Constitution of India is necessary. In the present case parties are yet to lead their evidence. Defendants No. 4 to 6 have placed reliance on a sale deed executed in their favour on 24.2.2006 on the basis of agreement to sell dated 16.1.2004, whereas, the plaintiffs have sought relief of specific performance of agreement to sell of a later date i.e. 13.6.2005 and 29.6.2005. Learned counsel for the subsequent purchasers respondents No. 4 to 6 has stated at the bar that the said respondents would not alienate the suit property during the pendency of the suit. Since respondent Nos. 4 to 6 have purchased the suit Civil Revision No. 3730 of 2008 10 property on the basis of earlier agreement to sell, the learned District Judge, Rewari rightly held that the application for interim injunction was liable to be dismissed. Whether the agreement to sell dated 16.1.2004 is a genuine or a fabricated document would be established only after the parties lead their respective evidence. In case respondent Nos. 4 to 6 raise any construction over the property in dispute, the same would be hit by the principle of lis pendence and hence, the right of the plaintiff is duly protected. In the facts and circumstances of the present case, no ground for interference by this Court under Article 227 of the Constitution of India is made out. Accordingly, this petition is dismissed. (SABINA) JUDGE July 6, 2009 anita