Civil Revision No. 6722 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 6722 of 2011(O&M) Date of decision. 07.11.2011 Avtar Singh and another .... Petitioners Versus Gursharan Singh and another ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Kanwaljit Singh, Sr. Advocate with Ms. Sukhwinder Kaur, Advocate for the petitioners. Mr. Malkeet Singh, Advocate for the respondents. **** Vijender Singh Malik, J. By way of this revision petition, brought under the provisions of Article 227 of the Constitution of India, the applicants Avtar Singh and Joginder Singh have sought setting aside of the order dated 27.09.2011 (Annexure P-11) passed by learned Civil Judge (Junior Division), Ludhiana. Vide the impugned order, learned Civil Judge (Junior Division), Ludhiana dismissed the application of the petitioners Avtar Singh and Joginder Singh, filed under the provisions of sections 151,152 and 153 read with section 94 CPC. Gursharan Singh, respondent no.1 filed a suit for specific performance of an agreement of sale against Civil Revision No. 6722 of 2011 --2-- Gurmail Singh, respondent no.2. During the pendency of the said suit, Gurmail Singh sold the suit land to the petitioners vide sale deed dated 04.05.2005. Thereafter, respondent no.2 entered into a compromise with respondent no.1 , on the basis of which, suit of Gursharan Singh was decreed, vide judgment and decree dated 08.05.2007. Learning about the judgment and decree dated 08.05.2007 , the petitioners filed an application under section 151 CPC for leave to appeal against the said judgment and decree because they were not party to the suit. They have simultaneously filed an application under the provisions of sections 151,152 and 153 read with section 94 CPC before the trial court. Learned Additional District Judge, Ludhiana before whom leave to appeal was applied had dismissed the application as well as the accompanying appeal for the reason that the petitioners could not avail two remedies simultaneously. The revision preferred by the petitioners against the said order of learned Additional District Judge, Ludhiana also failed vide judgment and decree dated 23.7.2010 of this court. In the application moved before the trial court, which ended in the impugned order, the petitioners claimed that respondent no.2 had resisted the suit of respondent no.1 claiming the agreement to be forged and fabricated document. He had sold the said property to the petitioners vide sale deed dated 4.5.2005 for a sale consideration of Rs.56,05,000/-. The petitioners have claimed that they had made all bonafide inquiries about the title of the vendor. The vendor had also represented to them that no litigation was pending regarding the said property in any court and that Civil Revision No. 6722 of 2011 --3-- the same was free from all incumbrances. It is after making of due bona fide inquiries, the suit property was purchased for valuable consideration and, therefore, the petitioners are bona fide purchasers for consideration without notice of any claim of any person to the said property. The petitioners are claimed to be in cultivating possession of the suit property. According to them, on 09.05.2007, Gursharan Singh, respondent no.1 met Joginder Singh, petitioner no.2 and claimed that they have obtained a decree against Balbir Singh in respect of the land in dispute and would get the sale deed executed in their favour and would dispossess the petitioners from the said land. On this revelation the petitioners made inquiries and came to know that Gursharan Singh had filed a suit for specific performance of an agreement of sale dated 08.01.2001 in respect of the land measuring 12B-16B-01B pukhta and 1B-10B-11B pukhta situated in village Raqba, Sub Tehsil Mullanpur, Tehsil and District Ludhiana executed by Kishan Singh . They also came to know that on 08.05.2007 when the case was fixed for evidence of the plaintiff Gursharan Singh, Balbir Singh filed a compromise in the said court through a different counsel and he did not disclose to the court that he has already sold the land to the petitioners. Accordingly, the petitioners claimed that Balbir Singh played a fraud upon the court and has caused injustice to the petitioners. Taking reply to the said application in which the petitioners are denied to be bonafide purchasers for valuable consideration without notice of claim of anyone else to the suit property, learned Civil Judge Civil Revision No. 6722 of 2011 --4-- (Junior Division), Ludhiana has dismissed the application vide the impugned order. I have heard Shri Kanwaljit Singh, Sr. Advocate with Ms. Sukhwinder Kaur, learned counsel for the petitioners Mr. Malkeet Singh, learned counsel for the respondents-caveators and have gone through the record. Learned senior counsel for the petitioners has submitted that respondent no.2 was no more owner of the land in question when he entered into a compromise with respondent no.1 in his suit for specific performance of the contract of sale. According to him, after sale of the suit property to the petitioners vide sale deed dated 4.5.2005, he entered into a compromise with Gursharan Singh in his suit for specific performance of the agreement of sale and has, thus, committed fraud upon the court. According to him, the fraud committed by him requires no evidence to prove it and is apparent on the face of the proceedings. Learned senior counsel has further submitted that learned trial court did not frame any issues on the application of the petitioners and did not give opportunity to the petitioners to prove their case. He has submitted that learned trial court has dismissed the application for the only reason that the sale deed in favour of the petitioner is hit by the principle of lis pendens. He has further submitted that the decree dated 8.5.2007 has been passed in a suit in which the sale deed executed in favour of the petitioners on 4.5.2005 has not been questioned. According to him, the interest of Balbir Singh had devolved upon the petitioners in suit land Civil Revision No. 6722 of 2011 --5-- after this sale and Balbir Singh had no right to admit the claim of Gursharan Singh in the later suit. He has submitted that when there is fraud committed upon the court in passing of a decree, principle of lis pendens would not apply. He has drawn my attention to various decisions of Hon'ble Supreme Court as well as Hon'ble High Courts of Jammu & Kashmir. They are Meghmala and others v. G. Narasimha Reddy & others 2011(3) Civil Court Cases 6, Jai Narain Parasrampuria (Dead) and others v. Pushpa Devi Saraf and others 2007(1) CCC 121 (SC), T.G. Ashok Kumar v. Govindammal and another 2011(1) Civil Court Cases 392 (SC), Amit Kumar Shaw and another v. Farida Khatoon and another 2005(2) Civil Court Cases 423 (SC), Mohd. Shafi Bhat and others v. Mohd. Ahsan Bhat and others 2009(5) RCR (Civil) and Sanjay Verma v. Manik Roy & others 2007(1) Civil Court Cases 401. Learned senior counsel for the petitioners has further submitted that the compromise decree(Ex.P-1) can be set aside in an application under section 151 CPC if the compromise was unlawful. He has supported himself in this regard by ratio of Babulal and others v. Smt. Chaturiya and others 2001 AIHC 1537. He has submitted that in these circumstances learned trial court could not have dismissed the application without framing of issues and taking evidence. Learned counsel for the respondents-caveator has made a simple submission that the petitioners cannot be taken as bonafide purchasers in this case. According to him, stay had been granted by the Civil Revision No. 6722 of 2011 --6-- court below restraining the sale of the suit property by the owner. According to him, entry of this stay was there in the jamabandi for the year 2004-05 and despite their being the said entry, the petitioners claim that they have made bonafide inquiries and could not come to know about the pendency of the suit in respect of the suit land. He has submitted that the application under sections 151, 152 and 153 read with section 94 CPC is not maintainable. He has also submitted that no law requires framing of issues and taking evidence in such like applications. According to him, the impugned order cannot be held bad in any manner as learned trial court has passed well reasoned order disposing of the application of the petitioners taking into account the facts that the suit brought by Gursharan Singh was based on agreement of sale dated 18.01.2001, the sale deed was to be executed on or before 15.6.2003 but as Kishan Singh, the prospective vendor had died on 13.02.2001, Gursharan Singh filed a suit for permanent injunction against Balbir Singh and others, successors of Kishan Singh on 3.4.2002. According to him, as the target date had passed during the pendency of the said suit, Gursharan Singh withdrew the said suit on 6.1.2004 and filed a suit for specific performance on 31.10.2003, in which injunction was granted by learned Civil Judge (Junior Division), Ludhiana restraining the defendant of that suit from alienating the suit property. The injunction order dated 29.11.2003 passed by learned Civil Judge (Junior Division), Ludhiana was questioned by way of an appeal by Balbir Singh, whose appeal succeeded before learned Additional District Judge, Ludhiana vide judgment dated 29.04.2005, Civil Revision No. 6722 of 2011 --7-- whereby learned Additional District Judge, Ludhiana had set aside the injunction order for the reason that the rights of the plaintiff Gursharan Singh were protected by the principle of lis pendens . Learned trial court has taken note of jamabandi for the year 2004-05 in which the fact of issuance of injunction order by learned Civil Judge (Junior Division), Ludhiana is mentioned in red ink. There is no assertion on the part of the petitioners that there was no such entry of injunction order with regard to the land in question. If it was there, the petitioner would have come to know of the pendency of the suit by mere perusal of the said jamabandi. Their claim that they made bonafide inquiries and did not come to know about the pendency of any suit in respect of the suit property is, therefore, incorrect. These facts clearly show that by purchasing the land vide sale deed dated 4.5.2005, after knowingly well about the pendency of the suit in respect of the same, it is the petitioners, who have committed fraud upon the court. Decree has been obtained for specific performance of the very contract of sale by Gursharan Singh and even if Balbir Singh had played a fraud upon the court, it cannot be said that Gursharan Singh was a party to the said fraud. So the decree holder cannot be held to have suppressed any fact from the court or committed any fraud upon the court. The principle of lis pendens may be working to the hardship of some persons and Hon'ble Supreme Court has suggested amendment of the law relating to the same to protect prospective purchasers from the risk and hardship arising out of the same, yet that does not dilute the Civil Revision No. 6722 of 2011 --8-- principle itself. Moreover there was enough material in the shape of jamabandi for the petitioners to have come to know about the pendency of the suit relating to the land being purchased by them. The parties moreover are residents of the same village. It is hard to believe that the pendency of a suit for specific performance brought by a person of the village of the petitioners against another co-villager would have been a secret to them. Even slightest inquiry could have revealed the factum of pendency of the suit to the petitioners. For all these reasons, the decisions cited by learned counsel for the petitioners do not have any application to the facts of this case. The impugned order does not suffer from any illegality. In the face of these facts and circumstances, learned trial court was not required to frame issues on the pleas raised in the application and take evidence thereon. The revision petition is, therefore, devoid of merit and is dismissed. 07.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE