Civil Revision No.2534 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2534 of 2011 (O&M) Date of Decision: April 20, 2011 Satto alias Satpal .....Petitioner v. M/s Jai Kishan Promoters and Builders Private Limited and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sumeet Goel, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.10152-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2534 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 12.3.2011 passed by learned Additional District Judge, Gurgaon, vide which order dated 12.3.2007, passed by learned Civil Judge, Junior Division, Gurgaon, was set aside and interim injunction application filed by the petitioner has been dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned orders passed by learned courts below. Facts relevant for the decision of present revision petition are that present petitioner-plaintiff filed a suit for declaration with consequential relief of permanent injunction declaring sale deed dated 10.3.1995 as illegal, null and void alongwith the mutation sanctioned on the basis of said sale deed and further for declaring the sale deed dated 20.9.2004 executed by defendants no.4 to 6 in favour of defendant no.7 as null and void alongwith subsequent mutation sanctioned on the basis of said Civil Revision No.2534 of 2011 (O&M) -2- sale deed and that the same are not binding upon him with a consequential relief of injunction restraining the defendants from interfering in his peaceful possession. Suit was contested by respondent no.1-defendant no.7 by taking the plea that defendants no.1 to 3 had already sold the land vide registered sale deed dated 10.3.1995 and that they had also filed a suit for declaration with consequential relief of injunction and, however, the said suit was dismissed in default and application for restoration of the said suit was also dismissed. Alongwith the suit, an application under Order 39 Rules 1 and 2 of the Code of the Civil Procedure (hereinafter to be referred as `the Code') was also filed by petitioner-plaintiff, which was disposed of by learned trial Court by observing that as both the parties are claiming respective possession on the suit property, hence, parties are directed to maintain status quo qua possession as well as title of the suit property. However in appeal filed against the said order by respondent no.1-defendant no.7, the same was accepted and the order maintaining status quo was vacated and as a consequence thereof, application filed by present petitioner under Order 39 Rules 1 and 2 of the Code was dismissed. It has been contended by learned counsel for the petitioner- plaintiff that learned trial Court had rightly ordered for maintaining status quo qua possession, as both the parties were claiming possession over the property in dispute and hence, there was no ground for learned appellate Court for reversal of the said order, after about four years of passing the said order. He has also placed reliance upon Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, 2005 AIR (SC) 104: 2004(9) J.T. 216. Law is well settled that at the time of granting ad interim injunction order, prima face case, balance of convenience and the fact as to whether an irreparable loss would be caused to the plaintiff, is to be seen. In this case petitioner-plaintiff is not able to show that prima facie, he is in possession of the property in dispute. It has been rightly observed by learned first appellate Court that property in dispute was subject matter of earlier suit filed by defendants no.1 to 3, through whom present petitioner-plaintiff is claiming the right. However, the said suit was dismissed in default. Learned first appellate Court while accepting the appeal has observed as under:- Civil Revision No.2534 of 2011 (O&M) -3- “10. Learned counsel for the appellant/defendant no.7 had argued that the learned Civil Judge had erred in law and on facts passing impugned order dated 12.3.2007 whereby both the parties were directed to maintain status quo with regard to possession as well as titleover the suit property. The order was based on mere surmises and conjectures and was against law and facts. The fact was that appellant was the absolute owner on the basis of sale deed dated 20.9.2004 executed by Buche, who was real brother of defendants no.4 to 6 and the present plaintiff Satto alias Satpal and Khushi Ram were the attesting witness on the sale deed dated 20.9.2004. Now the present plaintiff and defendants no.1 to 3 were colluding themselves to defeat the legal and valid title of the appellant. The suit land was sold by Buche son of Harbans, attorney of defendants no.1 to 3, who was their real brother and real brother of the plaintiff Satto alias Satpal vide sale deed dated 10.3.1995 to defendants no.4 to 6 vide sale consideration of Rs.7,98,000/- and same was challenged by defendants No.1 to 3 by filing a Civil Suit bearig No.415 of 1995 titled Sherwati etc. v. Buche etc. against Buche and others regarding the same property and the said suit was dismissed in default on 14.2.2000 and an application for restoration of the suit was also dismissed by the learned Civil Judge vide order dated 12.5.2004 and no appeal or revision was filed against that order passed on the application for restoration of the suit. The sale deed dated 10.3.1995 had been attested by the present plaintiff and his brother Ram Kishan and same was executed by Buche as power of attorney of defendants no.1 to 3 in favour of defendants no.4 to 6 vide sale deed dated 10.3.1995. It was further argued that moreover, no second suit was maintainable and the plaintiff had suppressed all these material facts from the Court, so he was not entitled for any discretionary relief. In this connection, learned counsel for the appellant had placed reliance upon Raghbir Singh v. Lilu Ram and others, 1996 (2) Civil Court Cases, 417 (P&H), Civil Revision No.2534 of 2011 (O&M) -4- Smt.Kesro alias Shanti v. Gurdial Singh, 2002(1) Civil Court Cases, 386 (P&H), Phalwinder Singh and others v. Sasnta Singh and others, 2009(5) Recent Civil Reports, 612 (P&H) and Anand Swarup Malik v. Municipal Corporation of Delhi, 1989 Civil Court Cases, 144 (Delhi). In all these authorities it had been observed by the Hon'ble Punjab and Haryana High Court and Delhi High Court that where a person seeks injunction without disclosing material facts and concealed the material and true facts from the court such person was not entitled for relief of injunction and no injunction could be granted in his favour otherwise the person may have a case on merits. In the present case it is very much clear that the present plaintiff was an attesting witness to the sale deed dated 10.3.1995, so this fact has been concealed by him while filing the present suit. Learned counsel for the appellant had further argued that no fresh suit on same cause of action was apparently maintainable as the earlier suit filed by Smt.Sherwati, Smt.Jaggu and Smt.Birma, defendants no.1 to 3 wherein they had challenged the sale deed executed by Buche in favour of defendants no.4 to 6, who were defendants no.2 to 4 in that civil Suit No.415/1995 which was dismissed in default on 12.5.2004 and an application for restoration of the said suit was also dismissed as discussed above. In support of his contention, learned counsel for the appellant had placed reliance upon Karnail Singh and another v. Smt.Dropti Devi and others, 2010(2) PLR 718 (P&H), Karam Singh(deceased) through his legal heirs v. Jaswant Singh and others, 2008(3) Civil Court Cases 438 (P&H) and Anil Kumar Dev and another v. Brijinder Kaur and another, 2009(2) Civil Court Cases, 634 (P&H). In all these authorities the Hon'ble Punjab and Haryana High Court had observed that second suit not maintainable on same cause of action. Similarly, for the sake of arguments the person who purchased the property during pending litigation steps into the shoes of their vendors and no separate suit was maintainable. Civil Revision No.2534 of 2011 (O&M) -5- Apart from this learned counsel for the appellant had further argued that if a person fails to make out three golden principles of granting ad interim injunction, i.e., a prima facie case, balance of convenience and irreparable injury which could not be compensated in terms of money, in his favour in that eventuality the person was not entitled for injunction. In support of his contention, learned counsel had placed reliance upon Hazrat Surat Shah Urdu Education Society V. Abdul Saheb, 1988 Civil Court Cases 33 (SC). Moreover, perusal of the documents filed in Civil Suit No.415 of 1995 which was dismissed in default on 12.5.2004 clearly show that the suit was between defendants no.1 to 3 and Buche and the purchaser defendants no.4 to 6 in the present suit and the same had been dismissed in default on the basis of statement of counsel for the plaintiff. Perusal of the sale deeds also show that the sale deed dated 18.5.2004 had been executed by Sheoraj son of Satto alias Satpal as attorney of defendants No.1 to 3 on the basis of General power of Attorney bearing Vasika No.18 dated 5.5.1988 whereas Smt.Jaggu, Smt.Sharbati and Smt.Brahma had executed power of attorney in favour of Buche on 4.1.1979 before Sub Registrar, Sohna and on the basis of General Power of Attorney dated 4.1.1979 executed in favour of Buche, he had executed sale deed dated 10.3.1995 as attorney of defendants no.1 to 3 in favour of defendants no.4 to 6 for sale consideration of `7,98,000/- in which he had clearly mentioned the factum of attorney of defendants no.1 to 3 on the basis of GPA dated 4.1.1979 and who had sold the suit land to defendant no.7-appellant. In these circumstances the plaintiff had neither prima facie case in his favour nor he is entitled to injunction.” Sufficient reasons have been given by learned appellate Court in reversing the order passed by learned trial Court. So far as question of granting ad interim injunction order is concerned, each case is to be decided on its own facts. Hence, in view of the peculiar facts of this case, as discussed Civil Revision No.2534 of 2011 (O&M) -6- above, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in reversing the order passed by learned trial court or that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. There is no merit in the present revision petition. The same is hereby dismissed. 20.4.2011 (Ram Chand Gupta) meenu Judge